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'Westminster's Zipcar Scheme'.
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Westminster City Council
ON-STREET VEHICLE NETWORK
_____________________________________
Volume 3 - Project Agreement
[DRAFT FOR ISDS STAGE]
_____________________________________
Tel: 020 7405 4600
CONTENTS
SCHEDULES
Schedule 1
Specification
Schedule 2
Tender
Schedule 3
Risk Reward Mechanism
Schedule 4
TUPE and Related Matters
Schedule 5
Framework Agreement
Schedule 6
Bays
Schedule 7
Parent Company Guarantee
Schedule 8
City Council's Environment and Fleet Policies
THIS DEED is made the day of 200
BETWEEN
(1) The Lord Mayor and Citizens of the City of Westminster of 64 Victoria Street, London, SW1P 6QE (the City Council) of the one part; and
(2) [name] [company number] (the Contractor) whose registered office is [ ] of the other part.
WHEREAS
The City Council wishes to procure an on-street vehicle network in Westminster (the “Scheme”), the Contractor has offered to provide such scheme at various parking bays within the City of Westminster (the number and/or location of such bays may change from time to time) and the City Council has accepted the offer; and
The parties have agreed to enter into a Deed incorporating the terms and conditions reached between them.
Definitions And Interpretation
In this Contract the following words and expressions shall have the meanings given to them below:-
Phrase |
Meaning |
Acceptance Date |
the date appearing on the Acceptance Letter or, if no date appears, the date on which it was dispatched by the City Council or its external legal advisers; |
Acceptance Letter |
the letter by which the City Council notified the Contractor of acceptance of its Tender; |
Authorised Officer |
the person or persons (together with any duly authorised deputies) appointed by the City Council to act in such capacity in respect of this Contract, or any replacement notified by the City Council to the Contractor and, for the avoidance of doubt, the City Council may appoint personnel from the CSi Provider or other Fellow Contractor as Authorised Officer for any purpose; |
Bay |
such parking spaces as shall be made available by the City Council to the Contractor from time to time for the purpose of operating the Scheme. The Bays available as at the Commencement Date are identified and described in Schedule 6. For the avoidance of doubt the number of Bays may increase or decrease and the Location may change during the Contract Period. Any such changes shall be made pursuant to Clause 11 (Variations); |
Carplus Accreditation |
means the annual accreditation scheme operated by Carplus Trust, a company limited by guarantee (registered number 04429814), by which certain minimum standards are imposed upon car clubs that subscribe to the scheme; |
Chief Executive |
the head of the City Council's paid services from time to time; |
City Council |
the Lord Mayor and Citizens of the City of Westminster; |
City Council Guidelines |
any relevant rules, procedures, guidelines, policies, codes of practice, standing orders, financial regulations and standards of the City Council as provided or notified to the Contractor by the City Council or an Authorised Officer from time to time; |
Commencement Date |
subject to Clause 9.3, 1st April 2009; |
Conditions |
means a condition forming part of these conditions including any schedules or annexes thereto and any reference to these Conditions shall be construed accordingly; |
Confidential Information
|
information that ought to be considered as confidential (however it is conveyed or on whatever media it is stored), including trade secrets, intellectual property rights and know-how of either party, information the disclosure of which would, or would be likely to, prejudice the commercial interests of any person, and all personal data and sensitive personal data within the meaning of the Data Protection Act 1998; |
Contract |
this agreement entered into between the parties incorporating the Contract Documents; |
Contract Documents |
means these Conditions together with the Schedules attached to these Conditions; |
Contract Manager |
the person (together with any duly authorised deputies) appointed by the Contractor to act as Contract Manager in respect of this Contract or any replacement notified by the Contractor to the City Council; |
Contract Period |
subject to Clause 9, the period beginning on the Commencement Date and continuing for 4 Contract Years; |
Contract Price |
[comprises the price per Bay, profit share, additional costs] Bidders to note: for discussion as part of the dialogue |
Contract Standard |
the standard to which the Scheme is to be provided as defined in Clause 13; |
Contract Year |
any continuous period of twelve months during the Contract Period commencing on the Commencement Date or any subsequent anniversary of the Commencement Date; |
Contractor |
[ ] and, if the context so permits, any of the Contractor's officers, Staff, sub-contractors or agents; |
Critical Performance Default |
a Performance Default which significantly and/or materially affects the Contractor's provision of the Scheme to the Contract Standard or undermines the fundamental purpose of the Contract; |
CSi Provider |
the Fellow Contractor appointed as the City Council's customer services initiative provider and any sub-contractor it has appointed under the contract with the City Council for that initiative; |
Data |
any data, document or information however stored that is:-
|
Director of Legal and Administrative Services |
the person appointed as the City Council's Solicitor and Secretary at any relevant time or that person's deputy; |
Dispute Resolution Procedure |
the procedure described in Clause 40; |
EIR |
the Environmental Information Regulations 2004 together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government Department in relation to such regulations; |
Equalities Legislation |
all Legislation which makes unlawful discrimination on grounds of sex, marital or partnership status, sexual orientation, gender reassignment, colour, race, ethnic, or national origin, disability, age, religion or belief, part time or temporary status in employment or otherwise including, without limitation, the Equal Pay Act 1970,the Race Relations Act 1976, as amended by the Race Relations (Amendment) Act 2000, the Sex Discrimination Act 1975, the Equal Pay Act 1970, the Disability Discrimination Act 1995, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Age) Regulations 2003, or any successor or amending Legislation concerning the same; |
Expert |
any person appointed from time to time in accordance with Clause 40; |
Fellow Contractor |
any other contractor or consultant engaged by the City Council to carry out works or services on behalf of the City Council including, but not limited to, the CSi Provider; |
FOIA |
the Freedom of Information Act 2000 and any Subordinate Legislation made under that Act, together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government Department in relation to that Act; |
FOIA Code |
the Department of Constitutional Affairs' Code of Practice on the Discharge of Functions of Public Authorities under Part 1 of the FOIA or any revision or replacement of that Code; |
Framework Agreement |
means the framework mechanism set out in Schedule 6; |
Guarantee |
a Parent Company Guarantee in the form set out in Part 2 of Schedule 7 duly executed (if the Contractor is a subsidiary company) by the Contractor's ultimate parent company or by the Contractor's parent company with substantial UK assets; |
Guarantee Undertaking |
an undertaking duly executed (if the Contractor is a subsidiary company) by the Contractor's ultimate parent company or by the Contractor's parent company with substantial UK assets in the form set out in Part 1 of Schedule 7; |
Index |
the all items index of retail prices excluding housing issued by the Office for National Statistics or any body upon which duties in connection with the compilation and maintenance of such index may have devolved; |
Information |
for the purposes of Clause 25, information as that term is defined in section 84 of the FOIA and which relates to the Contract (or any preceding tender process leading up to it), the Contractor or any sub-contractor, or the Scheme; |
Insurance |
the policies of insurance which the Contractor is obliged to take out and maintain pursuant to Clause 37; |
Intellectual Property Rights |
any and all patents, trade marks, service marks, copyright, moral rights, rights in design, know-how, and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating or attached thereto; |
Legislation |
all relevant Acts of Parliament and statutory regulations, instruments or orders, guidance, codes of practice, by-laws and directives and all applicable European Community legislation, which may be in force during the period of the Contract, as enacted, amended or interpreted from time to time; |
Location |
shall include any street at which the Scheme is to be provided; |
Losses |
any and all claims, fees, costs, expenses (including without limitation, legal costs on a solicitor and own client basis), loss, damages, demands and liabilities; |
Member |
means any resident of the City of Westminster who is a member of the Scheme or any business in the City of Westminster which is a member of the Scheme; |
Membership |
means membership of the Scheme; |
Method Statements |
means the method statements included in the Contractor's Tender at Schedule 2 setting out the way the Contractor will provide the Scheme and ensure that the Scheme is provided to the Contract Standard; |
Non Critical Performance Default |
a Performance Default which is not a Critical Performance Default; |
Performance Default |
|
Permit |
Note for Bidders: for discussion as part of dialogue |
Pricing Tables |
the pricing tables set out in Schedule 3; |
Property Rights |
the rights of the City Council as set out in Clause 26; |
Race Relations Act 1976 |
the Race Relations Act 1976 as amended and supplemented, in particular, by the Race Relations (Amendment) Act 2000 and the Statutory Code of Practice on the Duty to Promote Racial Equality issued by the Commission for Racial Equality pursuant to the Race Relations (Amendment) Act 2000; |
Request for Information (or “Request”) |
a request for Information within the meaning given in section 1 of the FOIA, or any request for Information under the EIR; |
Reserve Contractor |
[ ]; |
Review Date |
the date three months prior to each anniversary; |
Scheme |
the scheme by which the Contractor is permitted to operate a vehicle network in Westminster as set out in, or reasonably implied by, the Contract Documents; |
Specification |
the Contract Document so described setting out the Scheme required to be provided by the Contractor and related matters as set out in Schedule 1; |
Staff |
all persons engaged, appointed, employed or deployed by the Contractor or any sub-contractor of the Contractor in the provision of the Scheme; |
Subordinate Legislation |
has the meaning given in section 84 of the FOIA; |
Supervisory Staff |
Staff performing a supervisory or managerial function; |
Tender |
the Contract Document so described comprising the offer submitted by the Contractor to provide the Scheme incorporating , for the avoidance of doubt, but without limitation, the Contractor's form of tender, Pricing Tables, Method Statements, supporting documents and any post-tender submissions which augmented, supplemented or amended the Contractor's offer as set out in Schedule 2 ; |
Termination |
termination or expiry of the Contract in accordance with its terms, in common law or in statute; |
TUPE |
the Transfer of Undertakings (Protection of Employment) Regulations 2006 and the European Acquired Rights Directive 2001/23/EC as amended from time to time; |
Variation |
an amendment to the terms of the Contract, or a material or substantial amendment, omission, change or modification to the Scheme or part of the Scheme, including without limitation changes to the location of Bays and number of Bays, or a change in the way in which the Scheme is to be carried out; |
Vehicles |
means each vehicle offered for hire or rent by the Contractor for the purpose of delivering the Scheme and includes cars, vans, motorcycles and bicycles ; Bidders to note: for discussion as part of the dialogue |
Warranties |
the warranties, representations and undertakings made and given by the Contractor pursuant to Clause 32; |
Working Days |
Mondays to Fridays excluding Bank and Public holidays. |
Unless the context requires otherwise, words in the singular may include the plural and vice versa.
Words importing individuals shall be deemed also to include reference to incorporated and unincorporated associations and vice versa.
Words importing the masculine shall be deemed also to include the feminine and vice versa.
Headings are included for ease of reference only and shall not affect the construction of the Contract.
Any reference to any Clause or Schedule is, except where it is expressly stated otherwise, a reference to a clause of or schedule to these Conditions of Contract. A reference to a paragraph is to the relevant paragraph of the Schedule in which it appears.
The Schedules are an integral part of these Conditions of Contract and the parties are obliged to perform their respective obligations as set out in the Schedules.
All references to a statutory provision shall be understood as including references to any statutory modification, consolidation, amendment or re-enactment (whether before or after the date of these Clauses) of such statutory provision and to all statutory instruments or orders made pursuant to such statutory provision for the time being in force.
The expressions "subsidiary" and "holding company" shall have the meanings set out in Section 736 of the Companies Act 1985.
Any references to a "month" or "day" shall be to a calendar month or day respectively.
The parties have had the opportunity to take legal advice and no contract term shall be construed contra proferentum.
Words preceding "include," "includes" or "including" shall be construed without limitation by the words which follow those words.
Whole Contract
This Contract constitutes the entire agreement and understanding between the parties in relation to the Contract and supersedes all prior representations, arrangements, understandings, agreements, statements, representations or warranties (whether written or oral) relating to the Scheme.
Each party irrevocably and unconditionally waives any rights it may have to claim damages and/or to rescind the Contract for any misrepresentation or for breach of any warranty not contained in the Contract unless such misrepresentation or warranty was made fraudulently.
The provisions of Clauses 2.1 and 2.2 above shall not apply to any representations, statements or warranties given by the Contractor to the City Council regarding its financial standing, experience or probity pursuant to any short-listing process nor to any representations, statements, warranties given by the Contractor to the City Council pursuant to Clause 32.
Inconsistency
Subject to Clause 3.2, the Contract Documents shall be read and taken together. However, in the event of any inconsistency the following order of precedence shall apply:-
the Conditions of Contract;
the Specification;
the Tender;
other Contract documents.
Where the Contractor has set any target, standard, bench-mark, method or service in its Tender which is higher, more thorough or more substantial than the Specification, the Contractor's Tender shall prevail over the Specification but only to that extent.
Amendments
No amendment to the Contract shall be binding unless:-
it is in writing and signed by the representatives of the City Council who are duly and specifically authorised for that purpose (being the Director of Legal and Administrative Services unless the Contractor is notified otherwise) and of the Contractor and expressed to be for the purpose of such amendment; or
it is made pursuant to the Variation procedure set out in Clause 11.
Severance
In the event of any provision of this Contract being invalid in whole or in part the validity of the remaining provisions of this Contract shall remain in full force and effect.
Law And Jurisdiction
The Contract shall be governed by, and construed in accordance with, the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts.
Human Rights
The Parties acknowledge and agree that the Contractor may be acting as a public authority for the purposes of the Human Rights Act 1998.
The Contractor shall take all reasonable steps to ensure that the systems and procedures that it adopts in the performance of the Scheme comply with the provisions of the Human Rights Act 1988 (where relevant).
If (and in so far as) the City Council suffers any Losses that:-
arise out of the performance by the Contractor of its obligations under this Clause 7; or
arise out of any act or omission of the Contractor in breach of this Clause 7 or in breach of the Human Rights Act 1998,
the Contractor shall indemnify and keep indemnified the City Council against the same.
Notices
All notices under this Contract shall be in writing and shall be deemed duly given or made:-
2 (two) Working Days after being sent by prepaid special delivery post or;
when delivered by hand, and a signature acknowledging its receipt has been obtained or;
when received in the case of a facsimile provided the relevant answer back is obtained.
In each case the notice must:-
refer to this Contract;
be marked for the attention of the appropriate officer, person or department as notified to the other party in writing. Notices to the City Council must be marked for the attention of the Director of Legal and Administrative Services.
The notices shall be sent to the addresses of each party to the Contract specified at the beginning of this Contract or to such addresses as each party shall notify the other in writing within 5 (five) Working Days of any change in its address for service.
Any notice served on a non Working Day or after working hours shall be deemed to be served on the following Working Day.
For the avoidance of doubt, electronic mail shall not constitute a valid form of notice for the purpose of this Contract unless specifically agreed between the parties in writing for any express purpose set out in such agreement.
Commencement And Contract Period
The Contract shall take effect on the Acceptance Date from which date the Contractor shall perform its obligations prior to the Commencement Date as set out in Clause 12.
The Contractor shall commence the provision of the Scheme on the Commencement Date and shall provide the Scheme to the Contract Standard from the Commencement Date until the end of the Contract Period unless the Contract is terminated sooner in accordance with these Conditions of Contract or in accordance with common law or statute.
The Contractor shall execute the Contract promptly and shall not, save as expressly authorised in advance by the City Council in writing, commence the Scheme until it has so executed the Contract.
Non-Exclusivity
For the avoidance of doubt this Contract shall not be exclusive. The City Council shall be entitled at any time during the Contract Period to carry out any part of the Scheme, or scheme of a similar nature itself, or appoint additional contractors, including the Reserve Contractor, in connection with the provision of the Scheme.
Variations
Any minor or non-substantial changes to the Contract may be effected by agreement between the parties and shall not be deemed a Variation to the Contract.
The City Council may, upon giving not less that one calendar month's notice in writing to the Contractor (“the Variation Notice”), impose a Variation.
The Variation Notice shall specify: -
the detail of the Variation and
the date on which such a Variation is to have effect and
the time period during which the Variation shall have effect if it is of a temporary nature.
For the avoidance of doubt, the parties hereby acknowledge that any Variation may or may not result in an increase or decrease in the Contract Price. The amount of any increase or decrease in the Contract Price shall be agreed between the City Council and the Contractor and may comprise a one-off additional payment or an on-going adjustment to the Contract Price (upwardly or downwardly). For the avoidance of doubt, changes to the number of Bays shall be costed by reference to the costs per Bay set out in the Pricing Tables.
If either party considers that such upward or downward adjustment or additional payment is necessary as a result of the Variation, that party shall set out in writing to the other party its proposal for the adjustment or additional payment and shall do so within 14 Working Days of the issue by the City Council of the Variation Notice. Such proposal shall be supported by sufficient documentation and a clear analysis as to how the proposal has been calculated.
In the event that no such proposal is made within 14 Working Days (and unless the other party grants an extension in writing to the 14 Working Day period) both parties shall be deemed satisfied that the Contract Price shall remain unadjusted as a result of the Variation.
For the avoidance of doubt no increase in the Contract Price nor additional payment shall be made in respect of a Variation if there is either a compensating reduction or re-organisation of any other part of the Scheme.
The Contractor shall be bound by any Variation with effect from the date specified in the Variation Notice unless the City Council notifies the Contractor that the Variation is not to take effect until any adjustment to the Contract Price is agreed or determined.
In the event of a dispute as to whether any Variation should give rise to an adjustment to the Contract Price (or the amount thereof) the dispute shall be referred to the Dispute Resolution Procedure and, if necessary, the Expert.
For the avoidance of doubt, nothing shall prevent the City Council from withdrawing a Variation Notice following the outcome of the Expert's determination provided that if the Contractor has effected the Variation any addition or adjustment to the Contract Price determined by the Expert shall be applied pro-rata for the period between the date on which the Variation took effect and the date on which it is withdrawn.
Contractor's Obligations Prior To Contract Period
Within 10 Working Days following the Acceptance Date, the Contractor shall arrange a pre-commencement meeting which shall be attended by senior representatives of the Contractor (including the Contract Manager), any of the Contractor's sub-contractors in so far as the same will be directly providing any part of the Scheme, representatives of the City Council, and representatives of such Fellow Contractors, if any, as the City Council shall determine necessary.
At the pre-commencement meeting the parties shall agree a plan for the implementation of the Scheme. Such a plan shall be agreed by the Authorised Officer and Contract Manager in writing.
The Contractor shall arrange and attend as many meetings with the City Council and any Fellow Contractors as are reasonably necessary for the successful implementation of the Scheme.
To the extent that the Contractor has not already done so in its Tender and the same has been bound into the Contract Documents, the Contractor shall carry out, or provide to the City Council's satisfaction, as soon as reasonably practicable after the Acceptance Date:-
proof of insurances held;
the Guarantee, if applicable;
the Method Statement(s) setting out in practical terms how the Contractor intends to provide the Scheme and to ensure that the Scheme is provided to the Contract Standard;
measures to ensure that the Contractor, its sub-contractors, Staff and agents are fully familiar with the provisions of the Contract, their obligations under the Contract, the City Council's computer systems (if applicable) and the identities of all relevant Fellow Contractors; and
the identities, positions and responsibilities and contact details of all relevant Staff including, in particular, the Contract Manager and authorised deputies.
The City Council shall, prior to the Commencement Date:-
notify to the Contractor in writing the name and contact telephone number of any person who is to be an Authorised Officer as at the Commencement Date and any persons holding such other positions as may be specified in the Specification; and
provide the Contractor with such Data and information as the Contractor may, in the City Council's opinion, reasonably require in order for it to commence the Scheme.
The City Council shall provide all reasonable assistance to the Contractor prior to the Commencement Date, to include, where possible, the following:-
allowing the Contractor to interview appropriate City Council staff;
reporting to the Contractor on current issues which may affect the Scheme.
the Contract Standard
The Contractor shall perform the Scheme to the following standards (the Contract Standard):-
using all due skill care and diligence as would a competent contractor carrying out a scheme of the same scope and nature as the Scheme;
applying all reasonable professional standards and techniques;
in accordance with the Contract Documents;
in accordance with the City Council Guidelines;
in compliance with the reasonable instructions issued to the Contractor by any Authorised Officer pursuant to or in connection with the Contract;
in accordance with all Legislation relevant to the performance of the Scheme;
in a manner which does not prejudice the reputation and interests of the City Council;
in co-operation and liaison with Fellow Contractors as required to perform the Scheme;
in compliance with any requirements imposed upon it by virtue of Carplus Accreditation.
The Scheme shall be carried out by the Contractor by such method and with such materials and equipment as will achieve the objectives of the City Council's Environment and Fleet Policies as set out in Schedule 8 and as amended from time to time.
Correspondence And Complaints
The Contractor shall respond promptly to any claims, complaints and enquiries in any way related to the Contract or the provision of the Scheme by the Contractor (“Complaints”) received by the Contractor from the City Council, direct from any Member or member of the public, or from any other source . All Complaints received by the Contractor (whether in writing or by telephone or in person) shall be accurately recorded by the Contractor and made available to the Authorised Officer on request.
Complaints which have an implication for the safety of an individual or individuals must be reported immediately to the Authorised Officer. A record of the Complaint must contain full details of the subject-matter, including the date, time, name, address and telephone number of the complainant.
Without prejudice to any liability or indemnity provisions contained elsewhere in the Contract, the Contractor shall indemnify the City Council against any compensation or costs incurred by the City Council for upheld Complaints. Any disputes in relation to this provision shall be referred to the Dispute Resolution Procedure and if necessary the Expert.
Without prejudice to its obligation to perform the Scheme to the Contract Standard, the Contractor shall comply with any reasonable instruction given by an Authorised Officer to the Contractor in response to a Complaint or enquiry received from a Member or member of the public that has been investigated by an Authorised Officer.
Monitoring And Review
The Contractor shall institute at the Commencement Date, and maintain and keep under review throughout the Contract Period, systems designed to ensure that the Scheme is performed to the Contract Standard.
The Contractor's performance of the Scheme shall be measured against the obligations, standards, targets and benchmarks set out in the Contract Documents.
The City Council reserves the right to monitor the Contract by any means it considers appropriate at its absolute discretion, including unannounced inspections.
The Contractor shall assist the City Council as necessary and undertake as requested any monitoring of the Scheme or of the users or recipients of the Scheme as the City Council shall require in order for the City Council to fulfil any of its statutory obligations, including, without limitation, to meet its obligations under the Race Relations (Amendment) Act 2000.
Within (2) two calendar months following the beginning of each Contract Year, the Contractor shall prepare and submit to the City Council a review (“the Annual Contract Review”) which shall contain an analysis of the Scheme throughout the previous Contract Year, focussing on those areas which were particularly successful and those areas where the Scheme might have been improved and an action plan for rectifying any problems identified.
Subject to Clauses 24 and 25, the Annual Contract Review shall be held by the City Council in commercial confidence and it shall not be disclosed to anyone other than to elected members and officers of the City Council directly associated with the provision of the Scheme, internal and external auditors of the City Council and the City Council's solicitors.
The Contractor and the City Council shall discuss the Annual Contract Review and the City Council may in its absolute discretion, issue instructions requiring the Contractor to implement any measure which otherwise might reasonably be considered necessary by the City Council to ensure value for money.
At any time during the Contract Period the City Council shall be entitled to carry out, either itself or by engaging a suitably qualified third party, a thorough review of the operation of the Contract and the provision of the Scheme, including, if considered appropriate, a value for money review. The Contractor shall offer all reasonable assistance to the City Council and any independent third party in the carrying out of this review and shall attend such meetings and provide such documents as may be reasonably necessary for this purpose.
Contract Management
Authorised Officer
The City Council shall, during the Contract Period, give notice in writing to the Contractor from time to time of:-
the names and contact telephone numbers of any person appointed as an Authorised Officer; and
the removal of any notified person as an Authorised Officer
and until any such notice shall have been served on the Contractor by the City Council the Contractor shall be entitled to treat as Authorised Officers only those persons last notified as such to the Contractor.
The City Council shall, throughout the Contract Period, ensure that an Authorised Officer is available for consultation with the Contractor at all reasonable times.
Except pursuant to Clause 11, or unless specifically authorised for that purpose, the Authorised Officer does not have authority to amend the Contract in writing or otherwise or to relieve the Contractor of any express obligations under the Contract.
Contract Manager
The Contractor shall during the Contract Period:-
appoint, and give notice of the appointment of, a Contract Manager to an Authorised Officer such written notice to be given (unless not reasonably practicable) at least twenty Working Days prior to the proposed date of the appointment and specifying details of such person's name, office address, qualifications and experience ; and
give notice in writing to the City Council of the removal of any notified person as a Contract Manager
and until such notice shall have been served on the City Council by the Contractor the City Council shall be entitled to treat as Contract Manager only the person last notified as such to the City Council.
The Contractor shall not appoint any person as the Contract Manager without the City Council's prior written approval, such approval not to be unreasonably withheld or delayed.
The Contract Manager shall be the authorised representative of the Contractor and be deemed to be empowered on behalf of the Contractor for all purposes connected with the Contract and in particular (but without limitation) any notice, information, instruction or other communication given or made by or to the Contract Manager shall be deemed to have been given or made by or to the Contractor.
The Contractor shall ensure that throughout the Contract Period the Contract Manager:-
is available to be contacted by an Authorised Officer during working hours and that out of working hours telephone numbers and mobile telephone numbers are made available and an Authorised Officer notified if the normal contact person is on holiday or sick leave together with the name and telephone number of any substitute contact;
consults with an Authorised Officer (and with such other of the City Council's supervisory staff as may be specified by an Authorised Officer) as often as may reasonably be necessary to ensure a continuous and efficient provision of the Scheme in accordance with the Contract Documents;
attends any meetings, including meetings outside working hours, concerned with the provision of the Scheme as may be reasonably requested by the Authorised Officer including, without limitation, committee meetings and meetings arranged by the City Council with Members, members of the public, other organisations, City Council officers or elected members, or auditors;
follows and complies with any instructions or directions given or issued by any Authorised Officer in connection with the performance of the Scheme.
Staff
Without prejudice to the any other provision of this Clause 17, the Contractor shall employ sufficient Staff to ensure that the Scheme is provided to the Contract Standard, including (without limitation) during periods of absence of its Staff due to sickness, maternity leave, Staff holidays, Staff training or otherwise.
The Contractor shall:-
employ or engage in and about the provision of the Scheme only persons who are careful, honest, skilled, competent and experienced in the work relevant to that which they are to perform;
ensure that every member of Staff engaged by the Contractor in and about the provision of the Scheme is and at all times remains properly and sufficiently trained, skilled and instructed with regard to:-
the duty or duties which that person has to perform; and
the rules, procedures and statutory and regulatory requirements concerning health and safety at work and all other rules and procedures relevant to the duties and all other rules and procedures which that person has to perform;
ensure that its Staff comply with all relevant rules, codes, policies, procedures and standards of the City Council which are current or which may be notified to the Contractor by the City Council from time to time and with all relevant statutes, statutory orders and regulations;
implement such Staff training schemes throughout the Contract Period as are necessary to ensure the performance of the Scheme to the Contract Standard.
The City Council or an Authorised Officer may, to the extent reasonably necessary to protect the standards and reputation of the City Council, and following consultation with the Contractor, request the Contractor to take disciplinary action or other action (including removal from the Scheme or relevant part) against any person or member of Staff employed in or about the provision of the Scheme by the Contractor (including for the avoidance of doubt) the Contract Manager or his deputy and the Contractor shall forthwith comply with such request. The City Council shall not in any circumstances be liable to the Contractor or any of its Staff or employees in relation to any such disciplinary removal or other action and the Contractor shall fully and promptly indemnify the City Council in respect of any claims brought by any such employee or member of Staff arising from it .
The Contractor shall at all times during the Contract Period provide a sufficient complement of Supervisory Staff (in addition to the Contract Manager) to ensure that the Contractor's Staff engaged in the provision of the Scheme are at all times adequately supervised and able to perform their duties to the Contract Standard.
Neither the Contractor nor any of its Staff may in any circumstances solicit or accept any gratuity, tip or any other form of money taking or reward, collection or charge from any person in connection with the provision of all or part of the Scheme other than pursuant to the terms of the Contract.
Any breach by the Contractor or any of its Staff of Clause 17.5 will be regarded by the City Council as a matter of serious misconduct and, without prejudice to any of it's the City Council's rights under the Contract, an Authorised Officer shall be entitled to require the removal from the provision of the Scheme of Staff found to be in breach of Clause 17.5.
Notwithstanding any industrial action by Staff, it remains the Contractor's responsibility to meet the requirements of this Contract. The Contractor must inform an Authorised Officer immediately of any intending or actual dispute that may affect the Contractor's ability to provide the Scheme to the Contract Standard.
In the event of industrial disputes by persons employed directly by the City Council or other contractors which affect the provision of the Scheme, the Contractor will be required to co-operate with the City Council or its duly authorised representative to ensure the continued provision of the Scheme or to agree the level of the Scheme deemed by the City Council to be satisfactory during such dispute.
Equal Opportunities And Race Relations
The Contractor shall comply with all applicable Equalities Legislation in its performance of the Contract and shall take all reasonable steps to ensure that all servants, employees, agents and sub-contractors of the Contractor engaged in the provision of the Scheme do not unlawfully discriminate within the meaning and scope of the Equalities Legislation. This Clause 18.1 shall be without prejudice to the Contractor`s general obligation to comply with Legislation.
The Contractor shall not at any time unlawfully discriminate in relation to employing any person for the purposes of performing the Scheme on the grounds of sex, sexual orientation, gender reassignment, age, disability, colour, race, ethnic or national origin, religion, marital or civil partnership status, part-time or temporary status or otherwise. For the purposes of this Clause 18.2 employing a person shall include, without limitation, recruiting, appointing, selecting, training, promoting, remunerating, subjecting to a detriment, disciplining and dismissing.
The Contractor shall provide such information as the City Council requires to satisfy itself that the Contractor complies and shall continue to comply with Clauses 18.1 and 18.2 above.
Without prejudice to the generality of Clauses 18.1 and 18.2, the Contractor shall at all times comply with the Race Relations Act 1976 as amended and the Sex Discrimination Act 1975 as amended (the “Acts”) in respect of its treatment of its Staff and in the delivery of the Scheme. In particular, the Contractor shall in its performance of the Contract, take (and shall ensure that its servants, agents, employees and sub-contractors take) all reasonable steps to eliminate unlawful discrimination and harassment, promote equality of opportunity between men and women and people of different racial groups and promote good race relations within the meaning and scope of the Acts. The Contractor shall also ensure that it and its servants, agents, employees and sub-contractors provide all relevant information in this regard to the City Council so that the City Council can assess its own compliance with its general and specific duties under the Acts.
The Contractor shall as far as practicable and to the reasonable satisfaction of the City Council, follow the practical guidance, recommendations and advice contained in the Code of Practice on racial equality in employment (or any replacement publication) issued by the Commission for Racial Equality (now the Commission for Equality and Human Rights) . In particular, and without prejudice to the foregoing, the Contractor shall operate an equal opportunities policy which, so far as practicable, complies fully with the practical guidance, recommendations and advice set out in this Code.
The Contractor shall, as far as practicable and to the reasonable satisfaction of the City Council, follow the practical guidance, recommendations and advice contained in the Code of Practice for the elimination of discrimination on the grounds of sex and marriage and the promotion of equality of opportunity in employment and the Code of Practice on equal pay (or any replacement publications) issued by the Equal Opportunities Commission (now the Commission for Equality and Human Rights). In particular, and without prejudice to the foregoing, the Contractor shall operate equal opportunities and equal pay policies which, so far as practicable, comply fully with the practical guidance, recommendations and advice set out in these Codes.
The Contractor shall, as far as practicable and to the reasonable satisfaction of the City Council, provide at the Contractor's own expense all such facilities as may be necessary to enable any duly authorised disabled employee or agent of the City Council to visit the Contractor at the Contractor's own premises for any purpose relating to the Contract. In meeting these obligations the Contractor shall at all times have regard to the Disability Discrimination Act 1995 and Codes of Practice on employment and occupation (or any replacement publication) issued by the Disability Rights Commission (now the Commission for Equality and Human Rights).
The Contractor shall inform the City Council as soon as it becomes aware of any legal tribunal or court proceedings, ombudsman enquiries or arbitrations brought against the Contractor under the Equalities Legislation or of any judgments, convictions (not spent or exempted under the Rehabilitation of Offenders Act 1974), awards or settlements arising from such matters and shall, at its own cost, provide the City Council with such further information and documentation as may reasonably be required in relation thereto. In the event that any breaches of the City Council's duties under the Equalities Legislation are found to have occurred due to the acts or omissions of the Contractor or its servants, employees, agents or sub-contractors, the Contractor shall indemnify the City Council against any Losses that it suffers as a result.
The Contractor shall, no later than twelve months from the Commencement Date and annually thereafter submit a report to the City Council demonstrating its compliance with this Clause 18.
In the event that the Contractor subcontracts any or a substantial part of its obligations under this Contract, it shall impose obligations on its sub-contractors in terms substantially similar to those imposed on it pursuant to this Clause 18.
Tupe
The provisions of Schedule 4 shall apply.
Health And Safety
The Contractor shall, in performing the Scheme, ensure that its Staff, or any other person acting on behalf of the Contractor:-
adopt safe methods of work in order to protect the health and safety of the Staff, City Council staff, Members and any other persons including (without limitation) members of the public;
comply with all relevant parts of the City Council's Guidelines relating to health and safety.
The Contractor shall:-
maintain and review its health and safety policy and safe working procedures as often as may be necessary in the light of changing Legislation, working practices or any other factor, and shall notify the City Council in writing of such revisions; and
comply with any changes, amendments or further instructions reasonably requested or issued by the City Council in connection with the Contractor's health and safety procedures; and
have in place at all times during the operation of the Contract emergency operating procedures, including accident procedures, which procedures are to be communicated to all Staff and periodically tested, such testing to be formally recorded.
For the avoidance of doubt the City Council shall not be obliged to make and the Contractor shall not be entitled to receive any additional payment by reason of:-
any steps which the City Council requires the Contractor to take for health or safety reasons (including at the City Council's request, the appointment of an independent health and safety adviser to review the Contractor's working procedures); and/or
any part of the Scheme being omitted because of a stoppage required by the City Council due to health or safety reasons.
Audit And Records
The Contractor shall at all times throughout the Contract Period and for six years thereafter (or for any other reasonable period required by the Authorised Officer) maintain full, accurate, interrogable and auditable computer and/or hard copy records of all matters relating to the provision of the Scheme including (without limitation) records of Staff resources, disciplinary matters, costs, overheads, Complaints, reviews and Method Statements.
The Contractor shall provide all information or Data reasonably required by the City Council relating to the provision of the Scheme within a reasonable time of any request made in writing by an Authorised Officer. Such information or Data shall be presented in a format and in such media as is reasonably described in the notice.
The Contractor shall at all times both during the currency and following Termination of this Contract allow any Authorised Officer, internal or external auditor, Director of Legal and Administrative Services (or any person or persons nominated by them) access on reasonable notice to and/or a right of entry to any premises in the possession or under the control of the Contractor and in any way relating to or used in connection with the Scheme.
The Contractor shall at all times during the currency and following Termination allow any Authorised Officer, (or any person or persons nominated by him):-
immediate access to;
the permission to copy and remove any copies of; and
(if in the opinion of the Authorised Officer reasonably necessary or appropriate) the permission to remove the originals of
any books, records and information in the possession or under the control of the Contractor or any sub-contractor and in any way relating to or used in connection with the provision of the Scheme (including, without limitation, any Data stored on a computer system used by the Contractor).
The Contractor shall, as soon as reasonably practicable upon request by the Authorised Officer, internal or external auditor or Director of Legal and Administrative Services (or any person nominated by them) provide all information, documentation, access to Staff and assistance required by the City Council or their insurers or auditors in connection with any legal proceedings, insurance claim, third party complaint, potential claim or media interest which has, or may have, arisen out of or during the course of the Contractor's provision of the Scheme or the Contract.
Without prejudice to the Contractor's general obligations to provide data and information to the City Council on request, the City Council shall be entitled to request, and the Contractor shall provide within a reasonable time, employment and relevant personal information in relation to the Contractor's Staff for the purposes of anti-fraud measures such as data matching. The Contractor shall ensure that it takes any measures necessary pursuant to the Data Protection Act 1998 and any other relevant Legislation to facilitate such disclosure lawfully and fairly.
The provisions of this Clause 21 shall survive Termination and shall continue in force in accordance with their terms.
Contractor's Computer System
in relation to any computer system which the Contractor uses in connection with its provision of the Scheme, the Contractor shall at its own cost, but subject to the City Council's satisfaction, ensure that such a computer system is at all times through the Contract Period such as to enable the Contractor to comply with its obligations under the Contract and in particular (but without limitation) to perform the Scheme to the Contract Standard. Should the City Council so require, the Contractor must ensure that such computer system is capable of being rendered compatible with and is in all respects capable of interfacing with the City Council's relevant computer system.
The Contractor shall ensure that at all times during the Contract Period (and until any computerised Data has been returned to the City Council in accordance with the provisions of the Contract) adequate disaster recovery arrangements are in place for the event of the partial or total failure of the Contractor's computer system which arrangements shall enable the Contractor to continue without interruption to comply with its remaining obligations under this Clause.
The Contractor shall ensure that any software licences in relation to software to be used in connection with the provision of the Scheme allow for the software to be tested by the City council on a machine and at a location to be determined by the City Council and allow the City Council to so test all such software before it is used operationally by the Contractor if it so requests.
The City Council shall, free of charge, either in hard copy or in computerised form (as appropriate) provide the Contractor with such Data as is necessary in its opinion for the Contractor to perform the Scheme.
Data Protection
In relation to all Personal Data as defined in the Data Protection Act 1998 (the DPA), the Contractor shall at all times comply with the DPA as a data controller if necessary, including maintaining a valid and up to date registration or notification under the DPA covering the data processing to be performed in connection with the Scheme.
The Contractor shall only undertake processing of Personal Data reasonably required in connection with the Scheme and shall not transfer any Personal Data to any country or territory outside the European Economic Area.
The Contractor shall not disclose Personal Data to any third parties other than:-
to employees and sub-contractors to whom such disclosure is reasonably necessary in order for the Contractor to carry out the Scheme; or
to the extent required under a court order;
provided that disclosure under Clause 23.3.1 is made subject to written terms substantially the same as, and no less stringent than, the terms contained in this Clause and that the Contractor shall give notice in writing to the City Council of any disclosure of Personal Data it is required to make under Clause 23.3.2 immediately it is aware of such a requirement.
The Contractor shall bring into effect and maintain all necessary technical and organisational measures to prevent unauthorised or unlawful processing of Personal Data and accidental loss or destruction of, or damage to, Personal Data including but not limited to take reasonable steps to ensure the reliability of staff having access to the Personal Data.
The City Council may, at reasonable intervals, request a written description of the technical and organisational methods employed by the Contractor. Within 30 days following the date of such a request, the Contractor shall supply written particulars of all such measures detailed to a reasonable level such that the City Council can determine whether or not, in connection with the Personal Data, it is compliant with the DPA.
The Contractor shall indemnify and keep indemnified the City Council against all losses, claims, damages, liabilities, costs and expense (including reasonable legal costs) incurred by it in respect of any breach of this Clause by the Contractor and/or any act or omission of any sub-contractor.
Confidentiality
Each party:-
shall treat all Confidential Information belonging to the other party as confidential and safeguard it accordingly; and
shall not disclose any Confidential Information belonging to the other party to any person without the prior written consent of the other party except where disclosure is otherwise expressly permitted by the provisions of this Contract.
The Contractor shall not use any Confidential Information issued or provided by or on behalf of the City Council in connection with the Contract otherwise than for the purpose of the Contract (except with the prior written consent of the City Council).
Without prejudice to the generality of its obligations under Clauses 24.1and 24.2, the Contractor shall take all necessary precautions to ensure that all Confidential Information obtained from the City Council under or in connection with the Contract:-
is given only to such of the Contractor's employees, sub-contractors, professional advisers or consultants as is strictly necessary for the performance of the Contract and only to the extent necessary for the performance of the Contract;
is treated as confidential and not disclosed or used (except in either case with the prior written consent of the City Council) by any employees, sub-contractors, professional advisers or consultants otherwise than for the purposes of performing its obligations under the Contract.
The provisions of Clauses 24.1 - 24.3 shall not apply to any information:-
which is already in the public domain other than through previous default by the party making the disclosure or any other person to whom that party is permitted to disclose such information under the Contract;
which is required to be disclosed by law whether under the FOIA or EIR or otherwise;
was already in the possession of the party making the disclosure without restrictions as to its use before it came into that party's possession or knowledge as a result of or in connection with the Contract;
is reasonably required by any person engaged in the performance of their obligations in relation to the Contract for the performance of those obligations; or
is required by the City Council to be disclosed to the CSi Provider or to a Fellow Contractor for the performance of the obligations owed to the City Council by the CSi Provider or Fellow Contractor (provided that any such disclosure is made on terms that the CSi Provider or Fellow Contractor will itself treat such information as confidential and such information shall not be disclosed or used by the CSi Provider or Fellow Contractor or by any of their employees, sub-contractors, professional advisers or consultants otherwise than for the purposes of performing their obligations under the relevant contract with the City Council).
In the case of any disclosure by the Contractor pursuant to Clause 24.4.4, if the City Council considers it desirable the Contractor shall first obtain from the person to whom disclosure is to be made a confidentiality undertaking in similar terms to those contained in this Clause 24.
The Contractor shall not make any public statement or issue any press release or publish any other public document relating to, connected with or arising out of the Contract or the Scheme without obtaining the City Council's prior written approval as to the contents thereof and the manner of its presentation and publication.
Where under this Clause 24 the consent or approval of a party is required, such consent or approval shall be at the entire discretion of that party.
The provisions of this Clause 24 shall survive Termination.
Freedom Of Information
The Contractor acknowledges that, in order to be compliant with the FOIA and the EIR, the City Council may be obliged, on request, to provide or consider the provision of Information to third parties where that Information constitutes or may constitute Confidential Information. Subject to the provisions of this Clause 25, the Contractor shall assist and co-operate with the City Council (at the Contractor's expense) to facilitate the City Council's compliance with the FOIA and/or EIR in that regard.
Without prejudice to the generality of its obligations under Clause 25.1, the Contractor shall:-
transfer any Request for Information that it or its sub-contractors receive, to the City Council as soon as practicable after receipt and in any event within 2 Working Days following receipt of that Request for Information; and
provide the City Council with a copy of all Information in its or its sub-contractor's possession or power that the City Council reasonably considers is relevant to the Request in the form that the City Council requires as soon as practicable and in any event within 5 Working Days following receipt of the City Council's request for that Information (and any follow-up Information required by the City Council thereafter within 2 Working Days following receipt of the City Council's follow-up request).
The Contractor further acknowledges that, notwithstanding the provisions of Clause 24, the City Council may, acting in accordance with the FOIA Code, be obliged under the FOIA or the EIR to disclose Information that is or may be Confidential Information:-
in certain circumstances without consulting with the Contractor; or
following consultation with the Contractor and having taken the Contractor's views into account;
provided always that where Clause 25.3.1 applies, the City Council shall, in accordance with the recommendations of the FOIA Code, draw this to the attention of the Contractor prior to any disclosure.
Subject to the City Council complying with its obligations under this Clause 25, the City Council shall not be liable for any loss, damage, harm or other detriment suffered by the Contractor or any sub-contractor arising from the disclosure of any Information, whether or not such Information is Confidential Information, falling within the scope of the FOIA or EIR.
The Contractor shall indemnify the City Council against all claims, demands, actions, costs, proceedings and liabilities that the City Council incurs due to the Contractor's or any sub-contractor's breach of this Clause 25.
The Contractor shall ensure that the terms of any sub-contract which it enters into with a sub-contractor replicate the provisions of this Clause 25 such that the City Council has the same rights against a sub-contractor as it does against the Contractor under this Clause 25.
For the purposes of this Clause 25, “Working Day” has the meaning given to it in the FOIA.
Property Rights And Third Party Disputes
The Contractor hereby expressly acknowledges that the City Council alone has (subject to such third party rights as may at any time be notified to the Contractor by the City Council) exclusive ownership and ultimate control of:-
the format and content of the documentation comprising the Contract; and
the City Council's logos, insignia and letter heads; and
Data however and wherever stored and processed by the Contractor; and
any Intellectual Property Rights pertaining to any of the above
(collectively the “Property Rights”).
Any goodwill pertaining to or arising from the use of the Property Rights shall at all times enure and accrue to the exclusive benefit of the City Council absolutely.
The Contractor shall at the request of the City Council promptly execute such documents and take or desist from such action as the City Council may require in order to assure to the City Council the full benefit of its Property Rights and/or to confirm the City Council's title thereto.
The Contractor shall make use of the Property Rights solely:-
to the extent and upon the terms provided by the Contract; and
for the purposes of performing the Scheme for the City Council.
The Contractor shall notify the City Council on becoming aware of:-
any information prejudicial to, and/or actual, threatened or suspected complaint or proceedings brought by, any third party (including, without limitation, by any user or recipient of the Scheme) in any way connected with the Scheme and relating to the City Council, the Contractor or its sub-contractors or any Fellow Contractor; or
any actual, threatened, attempted or suspected infringement by any third party of any of the Property Rights including (without limitation) any seizure of or other interference with Data (an “Infringement”).
The Contractor shall use its best endeavours to assist, co-operate with and follow the instructions of the City Council in relation to any Infringement, including (without limitation) in protecting and/or defending the Property Rights against any infringing party and, at the City Council's request or the request of the City Council's insurers, the Contractor shall entrust the conduct of any proceedings in relation to any such Infringement to the City Council.
contract price note for bidders:for discussion as part of dialogue
In consideration of the payment by the Contractor to the City Council of the Contract Price the City Council agrees to grant to the Contractor a Permit for the purpose of operating the Scheme.
The Contract Price for each Bay shall be payable by the Contractor to the City Council in advance, prior to the use of each Bay under the Scheme, by automated payment mechanism (BACS), unless other payment mechanisms are agreed between the City Council and the Contractor.
The Contract Price shall be revised on each anniversary of the Commencement Date in accordance with the following provisions:-
on the first anniversary of the Commencement Date the Contract Price shall be adjusted by the percentage increase or decrease in the Index calculated from the Commencement Date to the first Review Date;
from the second anniversary onwards, the Contract Price shall be adjusted by the percentage increase or decrease in the Index calculated from the Review Date in the previous Contract Year to the Review Date in the Contract Year just ended;
The adjustment shall apply to the Contract Price for the twelve month period commencing on the relevant anniversary of the Commencement Date.
If the bases of computation of the Index having changed , any official reconciliation between the two bases of computation published by the body charged with the compilation and maintenance of the Index (currently the Central Statistical Office) shall be binding upon the City Council and the Contractor and shall be applied in adjusting the application of the Index thereto provided that in the absence of such official reconciliation such adjustments shall be made to the figures of the Index as to make it correspond as nearly as possible to the previous method of computation and such adjusted figures shall be used to the exclusion of the actual published figures (until officially reconciled figures are published) and in the event of a dispute regarding such adjustments such dispute may be referred by either party to the dispute resolution procedure and if necessary to the Expert under Clause 40.
Sufficiency Of Information
The Contractor shall be deemed to have satisfied itself before entering into this Contract as to the accuracy and sufficiency of the Contract Price and other financial information stated by the Contractor in the Contractor's Tender which shall (except in so far as is otherwise provided in the Contract) cover all the Contractor's obligations under the Contract and the Contractor shall be deemed to have obtained for itself all necessary information as to risks, contingencies and any other circumstances which might reasonably influence or affect the Contractor's Tender.
Except as may be expressly set out in the Contract, the City Council does not warrant the accuracy of any representation or statement of fact or law (including, without limitation, the frequencies or volumes set out in the Specification or other tender document) given to the Contractor by the City Council, its servants or agents at any time before the execution of this Contract. The City Council shall not be liable to the Contractor for any loss or damage which the Contractor may sustain as a result of relying on any such other representation, statements, information or advice whether in contract, tort, under the Misrepresentation Act 1967 or otherwise, save in so far as any such other representation, statement, information or advice was made or given fraudulently by the City Council, its servants or agents acting in the course of their employment.
Right Of Set Off
Whenever under the Contract any sum of money shall be recoverable from or payable by the Contractor to the City Council, the same may be recovered as a debt or deducted from any sum then due, or which at any time thereafter may become due to the Contractor under the Contract or under any other contract between the Contractor and the City Council.
The City Council shall be entitled to interest at a rate of 2% above the base lending rate published by the Lloyds TSB Bank PLC on any sum properly due from the Contractor to the City Council and which remains unpaid for a period of 30 (thirty) days from the issuing by the City Council of an invoice.
No Agency Partnership Employment Or Tenancy
Save as otherwise provided in this Contract or where a statutory provision otherwise requires, the Contractor shall not:-
be, act or hold itself out as an agent of the City Council; nor
make any representations or give any warranties to third parties on behalf or in respect of the City Council; nor
bind or hold itself out as having authority or power to bind the City Council.
Nothing in this Contract shall create, or be deemed to create, a partnership or the relationship of employer and employee between the parties nor any landlord and tenant relationship.
Assignment , Sub-Contracting And Novation
The Contractor shall not:-
assign, charge or otherwise deal with its rights or obligations arising under the Contract or any part thereof; without the prior written consent of the City Council;
sub-contract the provision of the Scheme or any part thereof without the prior written consent of the City Council;
which consent may, in either case, be withheld at the City Council's absolute discretion or, if given, shall not (except with the express written permission of the City Council to such effect) relieve the Contractor from any liability or obligation under the Contract so that the Contractor shall be responsible for the acts, defaults or neglect of any Staff or sub-contractor or its agents, in all respects as if they were the acts, defaults or neglect of the Contractor (notwithstanding that the City Council may, as a condition of giving its consent to the Contractor to sub-contracting, require such sub-contractor to enter into direct warranties, undertakings, guarantees or indemnities from such sub-contractor concerning the provision of the Scheme and its compliance with the Contract in all respects).
The City Council may, in its absolute discretion, assign the Contract or any part thereof and will give written notice of any assignment to the Contractor. This Clause in the Contract executed by the Contractor shall stand as the Contractor's consent to the assignment of the benefit, burden or whole contract by the City Council.
The City Council shall be entitled to novate the Contract in whole or in part and from any date to the CSi Provider:-
Upon such novation (the “CSi Novation”) the CSi Provider shall stand as employer of the Contract in respect of the part novated from the date that the CSi Novation is to take effect and the City Council shall be discharged and released from any further obligation, responsibility and liability in respect of such part and from such date;
The CSi Novation shall be without prejudice to any liability of one party to the other which arose in respect of a period prior to the date that the CSi Novation took effect or arising at any time in respect of the part of the Contract not subject to the CSi Novation;
The Contractor's execution of the Contract containing this Clause shall stand as the Contractor's consent to the CSi Novation but, without prejudice to the foregoing, if the City Council decides to effect the CSi Novation, the Contractor shall upon request execute a deed of novation in a form approved by the City Council's Director of Legal and Administrative Services
Warranties
The Contractor warrants and represents to and undertakes with the City Council that:-
it has in all respects complied with the conditions of tendering set out in the City Council's descriptive document issued on [ ] and in particular (but without prejudice to the generality of the foregoing) that it has not done any of the acts or matters prohibited by such conditions of tendering;
it has made its own investigations and research and has satisfied itself in respect of all matters relating to the Contract including the Specification, the Contract Price and these Clauses and that it has not submitted its Tender and has not entered into this Contract in reliance on any information, representations or assumptions (whether made orally, in writing or otherwise) which may have been made by the City Council;
all information, representations and other matters of fact communicated (whether in writing or otherwise) to the City Council by the Contractor in connection with or arising out its Tender are true, complete and accurate in all respects;
it has full power and authority to enter into the Contract and thereafter to perform the Scheme;
it is of sound financial standing and the Contractor is not aware of any circumstances (other than such circumstances as expressly disclosed by the Contractor when submitting its Tender) which may adversely affect such financial standing in future;
it has or has made arrangements to ensure that it will have sufficient working capital, skilled Staff, equipment, machinery and other resources available to it in order to carry out the Scheme in accordance with the Contract Standard;
it has obtained or has made arrangements to ensure that it will obtain all necessary consents, licences and permissions to enable it to carry out the Scheme and will throughout the Contract Period obtain and maintain all further and necessary consents, licences and permissions to enable it to carry out the Scheme;
it has made its own investigations and research in relation to and has fully satisfied itself of the nature of the Scheme so as to assess the full scope and volume of the work involved in performing the Scheme to the Contract Standard; and
it will not at any time during the Contract Period or at any time thereafter claim or seek to enforce any lien, charge or encumbrance over any property of whatever nature aimed or controlled by the City Council and which is for the time being in the possession of the Contractor.
The Contractor shall alert the City Council to the risk or the existence of any reason which may prevent the Contractor from performing the Scheme as required in whole or in part as long in advance (and as fully) as reasonably practicable in the circumstances.
Defaults and Remedies
Remedies Available to the Contractor
Interest
In the event that any undisputed invoice correctly rendered by the Contractor remains unpaid by the Council after 30 (thirty) days the Contractor shall notify the City Council in writing giving the City Council 15 (fifteen) further calendar days to pay such an invoice. If the invoice remains unpaid, the Contractor shall be entitled to charge interest from the date on which the 15 day period expired at a rate of 2% above the base lending rate published by Lloyds TSB Bank Plc. The parties agree that this Clause constitutes a substantial remedy for the purposes of the Late Payments of Commercial Debts Act 1998.
Relief from Liability
The Contractor shall not be liable to the City Council for a Performance Default to the extent that the same is directly caused by a breach of contract by the City Council or Fellow Contractor (a Relief Event) provided that the Contractor has notified the City Council in writing as soon as it has come to the Contractor's attention that a Relief Event has or will occur.
Termination
Without prejudice to the Contractor's rights pursuant to Clause 34 if the City Council commits a repudiatory breach of contract, the Contractor shall be entitled to terminate the Contract by notice in writing provided it first notifies the City Council in writing of the breach of contract, stating its intention to issue a termination notice and giving the City Council a period to remedy the breach, such period being reasonable in the circumstances and, in any event not less than ten Working Days. If the City Council remedies the breach within such period the Contractor shall not be entitled to accept the repudiation and/or terminate the Contract.
Remedies available to the City Council: note for bidders: for discussion as part of dialogue
Performance Defaults
In the event of a Performance Default the City Council shall issue a notice (a “Default Notice”) to the Contractor which shall state on its face whether, in the reasonable opinion of the Authorised Officer, the Performance Default is either a Critical Performance Default or Non-Critical Performance Default.
If the Contractor disputes whether a Performance Default is a Critical Performance Default, the matter shall be referred to the Dispute Resolution Procedure and if the dispute remains unresolved to the Courts. For the avoidance of doubt the matter shall not be referred to the Expert.
Critical Performance Defaults
In the event that a Default Notice states that a Performance Default is Critical, it shall also state how and by when the Contractor at its own expense shall remedy, make good or mitigate the Performance Default. Such action and time period shall be fair, reasonable and commensurate with the nature of the Performance Default and the effect that such Performance Default had or continues to have on the provision of the Scheme and the services provided by Fellow Contractors.
On receipt of a Default Notice stating that the Performance Default is Critical the Contractor shall take the action required by the Default Notice at its cost and own expense within the time period set out in the Default Notice. The Contractor shall, in addition, attend a meeting with the Authorised Officer to discuss the Performance Default and the Contract Manager shall give an assurance in writing to the Authorised Officer that the Performance Default shall be remedied, made good or mitigated within the time scale set out in the Default Notice.
If the Contractor considers that the time or measures stated in the Default Notice to remedy, make good or mitigate a Critical Performance Default is unreasonable or impossible to comply with, the Contract Manager shall notify the Authorised Officer within 24 hours of receipt of the Default Notice and the parties shall attend a meeting at a chief officer and director level to discuss the matter and to agree a time period in which and measures by which the Performance Default shall be remedied, made good or mitigated. Thereafter, if unresolved, the matter shall be referred to the Dispute Resolution Procedure and if necessary the Expert.
If the Contractor fails to remedy a Critical Performance Default within the time period set out in the Default Notice (or subsequently agreed or determined) the matter shall be deemed a repudiatory breach of contract and the City Council may, in its absolute discretion, terminate the whole or any part of the Scheme in accordance with the provisions of Clause 34.
Non Critical Performance Defaults
If a Default Notice states that a Performance Default is Non Critical, the Contractor shall, within five Working Days of receipt, prepare a plan setting out the measures (an `Action Plan') which the Contractor shall carry out to ensure that the Performance Default is remedied, to ensure that it does not occur again and the time scales within which such an action plan shall be implemented. Such a plan shall be known as an Action Plan. The Action Plan shall be submitted to the Authorised Officer for his approval which shall not be unreasonably withheld or delayed. The Authorised Officer shall be entitled to suggest reasonable amendments to the Action Plan which the Contractor shall incorporate. The Contractor shall implement the approved Action Plan.
Escalation
If:
the Contractor fails to remedy a Non-Critical Performance Default in accordance with an Action Plan or;
the Contractor fails to remedy a Critical Performance Default in accordance with the Default Notice or as subsequently agreed or determined;
any Critical Performance Default having been remedied, occurs again or;
more than 2 (two) Critical Default Notices or 6 (six) Non Critical Default Notices (in each case not necessarily relating to the same breach or failure) have been issued to the Contractor in any continuous 6 (six) month period;
then the Authorised Officer shall be entitled to serve a warning notice (a Warning Notice). The Warning Notice shall state on its face that it is a Warning Notice and shall set out the measures which the Authorised Officer requires the Contractor to take to ensure that the Performance Default or Performance Defaults are remedied, do not occur again and the time scales within which the Contractor is to affect such measures. The Contractor shall comply with the terms of the Warning Notice.
In the event that the Authorised Officer serves more than 2 (two) Warning Notices within any continuous 6 (six) month period the Council shall be entitled to terminate in whole or any part of the Scheme in accordance with the provisions of Clause 34.
Other Remedies
In addition to the matters set out above, in the event the Contractor commits a Performance Default (whether Critical or Non-Critical) the City Council shall be entitled, without prejudice to any of its rights or remedies whether in contract, tort or under statute, to remedy the Performance Default itself or engage others to do so and the cost of so doing shall be recoverable from or payable by the Contractor to the City Council.
The provisions of this Clause are without prejudice to any other right or remedy of the City Council.
Without prejudice to this Clause, the Contractor shall at its own expense put into effect the disaster recovery plan and business continuity plan set out in its Tender whenever the same is necessary whether through the Contractor's default, the acts and omissions of the City Council or its Fellow Contractors or other circumstances including force majeure.
Termination
If any one or more of the matters in Clause 34.2 occurs the City Council shall be entitled to terminate the Contract in whole or in part by issuing a notice to the Contractor to that effect. For the avoidance of doubt the occurrence of any one of the matters listed in Clause 34.2 shall be deemed a repudiatory breach of contract by the Contractor. The right of the City Council to terminate shall be a contractual right pursuant to this Clause and/or a common law right accepting the Contractor's repudiatory breach as the circumstances dictate.
The matters referred to in Clause 34.1 are:-
the Contractor or any of its employees, (whether with or without the Contractor's knowledge) having offered, or given, or agreed to give to any person or have solicited or accepted from any person, any gift, conside Mr Gary SawyerRequest - 12532 - 100e34cb@whatdotheyknow.comCustomer RelationsWestminster Parking ServicesAsst Director of Parking: Kevin Goa
tion, inducement or reward of any kind, for doing or not doing any action in relation to the Contract or any other contract with the City Council; or
in relation to any contract with the City Council, the Contractor or any of its employees shall:-
have committed any offence under the Prevention of Corruption Acts 1889 to 1916, or
have given any reward the receipt of which is an offence under Section 117(2) of the Local Government Act 1972; or
the Contractor commits an act of fraud or bankruptcy; or
the Contractor misuses or infringes any of the Property Rights or uses the same without the prior written consent of the City Council other than in the provision of the Scheme; or
the Contractor suffers an event of incapacity rendering the Contractor unable or potentially unable to carry out its obligations under the Contract and/or to meet any liability which may arise through the Contractor's negligence or breach of contract (and for the purposes of this Clause 34.2.5, an “event of incapacity” shall include the appointment of a liquidator, insolvency within the meaning of relevant Legislation, having substantial distress attachment execution or other legal process levelled enforced, sued or threatened upon any of its property, the appointment of an administrator or receiver, the suspension of any publicly offered equities or the freezing of substantial assets; or
the Contractor commits a substantial and material breach of Contract; or
more than 2 (two) Warning Notices are issued pursuant to Clause 33.2.4.2.
The Termination Notice issued pursuant to Clause 34.1 shall state the date on which the termination is to take effect, the matter leading to termination and, if the termination is of part, the part of the Contract so determined.
If the Contract is determined in part, the Contract Price shall be adjusted to reflect fairly the part of the Scheme which remains and if the parties are unable to agree such adjustment, the matter shall be referred to the Dispute Resolution Procedure and if necessary to the Expert. For the avoidance of doubt the Contractor shall not be entitled to recover through the adjusted Contract Price any profit that, but for the Termination, that would have accrued to the Contractor in respect of the terminated Scheme.
The City Council, in its discretion but acting reasonably and taking into account the representations of the Contractor, shall be entitled to suspend part of the Scheme which it would otherwise be entitled to terminate pursuant to this Clause until such time as the Contractor is able to demonstrate that it is able to perform the Scheme to the Contract Standard without default. During the period of such suspension (which shall be notified in writing by the City Council) the City Council shall be entitled to deliver the Scheme itself or to engage a third party to do so, and the cost of so doing shall be recoverable from or payable by the Contractor to the City Council.
The rights of the City Council under this Clause are in addition and without prejudice to any right that either party may have against the other for prior breach and to any right the City Council may have against the Contractor for the breach, default, negligence or event leading to the Termination.
The remedies of the City Council under this Clause may be exercised successively in respect of any one or more defaults by the Contractor.
Consequences Of Termination
Termination shall be without prejudice to the rights and remedies of the Contractor and the City Council accrued before such Termination and nothing in the Contract shall prejudice the right of either party to recover any amount outstanding as at the date of such Termination
Upon Termination (for whatever reason) the Contractor shall:-
forthwith cease to provide the Scheme;
cease to make use of the Property Rights in any way whatsoever;
within 7 (seven) calendar days of Termination or, in the case of expiry of the Contract Period, no later than 3 (three) months prior to such expiry, submit to the City Council at the Contractor's own cost a comprehensive status report which shall be current as at the date of submission relating to the Scheme;
without prejudice to the City Council's other rights under these Clauses within 10 (ten) calendar days of Termination at the Contractor's own cost return to the City Council or otherwise dispose of in accordance with the City Council's instructions all and any:-
documents and other information and materials relating to the Scheme;
Data (which data shall if necessary upon the City Council's request be transferred in compatible form on to such computer system as the City Council may request); and
other property and software belonging to the City Council which may be in the possession or under the control of the Contractor;
make good to the City Council any accounting discrepancy and/or loss or damage attributable to a Performance Default by the Contractor, its Staff, sub-contractors and agents;
vacate the Bays; and
inform all Members of the name and address of a new provider of the Scheme or similar scheme.
All provisions which are expressed to survive termination of this Contract shall continue in force in accordance with their terms.
Subject as otherwise provided in the Contract neither Party shall have any further obligation to the other under the Contract.
Without prejudice to the provisions of Clause 19 and Schedule 4 (TUPE), prior to and at the end of the Contract Period the Contractor shall co-operate with the City Council and any replacement contractor nominated by the City Council ("New Contractor") in ensuring the smooth hand-over and continued running of the Scheme during such hand-over and in particular, but without limitation, the Contractor shall, to the extent required by the City Council:-
allow the City Council and any New Contractor reasonable right of access to the Contractor's and sub-contractor's premises, systems, procedures and Staff, where appropriate; and
deliver to the City Council upon request all information, materials and documents relating to the Scheme in its possession or under its control or in the possession or under the control of any permitted sub-contractors and in default of compliance with this provision the City Council may recover possession thereof and the Contractor grants a licence to the City Council or its appointed agents to enter for the purpose of any such recovery any premises of the Contractor or its permitted sub-contractors where any such documents, information or materials may be held.
Without prejudice to Clause 34.2, where the Contractor's employment under the Contract is terminated for a reason set out in Clause 34.2, the City Council shall immediately cease to be under any obligation to make further payment to the Contractor until the costs, loss and/or damage to the City Council resulting from or arising out of the termination of the Contractor's employment shall have been calculated, including the application of Clause 35.2.5.
When the total costs, loss and/or damage resulting from or arising out of such termination as is referred to in Clause 35.6 have been calculated and deducted so far as practicable from any sum or sums which would but for Clause 35.6 have been due to the Contractor, any balance shown as due to the City Council shall be recoverable as a debt.
Liability And Indemnity
The Contractor shall be liable for and shall fully and promptly indemnify the City Council, its employees, agents and other contractors, against all Losses whatsoever and howsoever arising, whether directly, indirectly or in relation to any third party liabilities, out of or in connection with:-
the Contractor's failure to provide all or any part of the Scheme in accordance with the Contract Standard or at all;
any breach by the Contractor of any of the provisions of the Contract;
the use or occupation by the Contractor of the Bays;
the use by the Contractor of any equipment or asset owned by the City Council for which the City Council has any legal responsibility;
any negligent, other tortious or fraudulent act or omission of, or breach of statutory duty by the Contractor.
For the purposes of Clause 36.1.1 above, references to the Contractor shall include any employee, agent or sub-contractor of the Contractor and for the purposes of Clause 36.1 "third party liabilities" shall mean any demands made by third parties against the City Council and all liabilities of the City Council to third parties.
The City Council shall be liable for and shall fully and promptly indemnify the Contractor against all Losses whatsoever and howsoever arising whether directly, indirectly or in relation to any third party liabilities out of or in connection with:-
any breach of contract of the City Council and/or
the use or occupation by the City Council of any property or premises belonging to the Contractor.
Any requirement in this Clause 36 or elsewhere in these Clauses for one party to indemnify the other shall not apply to the extent that the claim in question arises from the negligence or breach of contract of the indemnified party.
Without prejudice to the generality of this Clause the parties' liability to the other in respect of loss or damage to any property of any nature whatsoever shall include an obligation to reimburse all costs and expenses reasonably incurred by the other in the re-instatement or replacement of any such property, whether or not such re-instatement or replacement results in an improvement of or to the property so lost or damaged.
The Contractor's liability to the City Council pursuant to Clause 36.1 and the City Council's liability to the Contractor pursuant to Clause 36.2 shall be, for the avoidance of doubt, without prejudice to any other right or remedy available to the parties whether under the common law principles of contract, equity or tort, under statute or as expressly provided in this Contract and in particular (but without limitation) shall not prejudice in any way the City Council's right to enforce at any time and in any manner whatsoever any Guarantee or sub-contractor warranty.
In any event or notwithstanding anything contained in this Contract, the Contractor's liability in contract, tort (including negligence or statutory duty) or otherwise arising by reason of or in connection with this Contract (except in relation to death or personal injury caused by negligence) shall be limited in aggregate per year to:-
where under the terms of Clause 37 the Contractor is obliged to hold insurance in respect of the matter from which the liability arises, the insurance levels set out in Clause 37;
in respect of matters for which the Contractor is not obliged to hold insurance under the provisions of Clause 37 £ 1 million.
In any event or notwithstanding anything contained in this Contract, the City Council's liability in contract, tort (including negligence or statutory duty) or otherwise arising by reason of or in connection with this Contract (except in relation to death or personal injury caused by negligence) shall be limited in aggregate per year to £1 million.
For the purposes of Clauses 36.6 and 36.7 "in aggregate per year" shall mean that the limitation of liability referred to in those Clauses shall be the monetary limit of liability in respect of breaches, failures or negligence committed in any Contract Year.
Insurance
Without prejudice to the City Council's rights under the Contract, the Contractor shall throughout the Contract Period take out and maintain with reputable insurers such policies of insurance as may be necessary to insure the Contractor against all manner of risks which might arise in connection with the Contractor's performance of its obligations under the Contract including (without limitation) in respect of the following risks:-
employers' liability including (without limitation) personal injury or death of any person arising under a contract of service with the Contractor and/or arising out of an incident occurring during the course of such person's employment in compliance with the Employer's Liability (Compulsory Insurance) Act 1969; such insurance cover shall be not less than £10,000,000 (ten million pounds) in respect of any occurrence or series of occurrences arising out of any one incident;
public liability and occupiers' liability; such insurance cover shall be not less than £10,000,000 (ten million pounds) in respect of any occurrence or series of occurrences arising out of any one incident;
loss or destruction by reason of accident, burglary, theft, fire or otherwise of all equipment, assets, software and any premises owned or under the legal responsibility of the Contractor (including any City Council property at the Contractor's own premises) and such insurance shall be sufficient to cover the full replacement value;
indemnity insurance for Members; Note for Bidders - details to be inserted dependent on proposals
such other risks as may from time to time be required by the City Council
and such insurance cover above shall include an indemnity to principal clause.
The Contractor shall ensure that the City Council's interest at all times during the Contract Period is and remains noted on the insurance.
The Contractor shall at appropriate times during the Contract Period submit to an Authorised Officer a copy of the then current insurance, together with documentary evidence that such insurance remains properly maintained.
If the Contractor fails to comply with its obligations under this Clause either fully or at all, the City Council shall be entitled:-
itself to provide the relevant insurance in place of the Contractor; and
to charge the cost of such substitute insurance together with an administration charge of 10% (ten per cent) of such cost, to the Contractor by way of (in the City Council's discretion) either: -
deduction from any sums payable by the City Council to the Contractor under the terms of the Contract; or
recovering the same as a debt due to the City Council from the Contractor.
The Contractor shall ensure that any sub-contractors of the Contractor maintain like insurance cover to that covered by the insurance required to be provided by the Contractor under this Clause.
Specific Performance
The parties acknowledge that in the event of a Performance Default the loss or damage suffered by the City Council may be such that damages are not an adequate remedy. In such circumstances the City Council shall have the right to specific performance of the Contractor's obligations. Such remedy shall be in addition to, and not in lieu or limitation of, other remedies provided to the City Council under the Contract, at law or in equity.
Waiver
Failure by the City Council at any time to enforce any provision of this Contract or to require performance by the Contractor of any of the provisions of this Contract shall not be construed as a waiver of any such provision and shall not affect the validity of the Contract or any part of this Contract or create any estoppel or in any other way affect the right of the City Council to enforce any provision in accordance with its terms.
Dispute Resolution And Expert Determination
In the event that any dispute arises between the parties in connection with this Contract, the parties shall, in the first instance, use their reasonable endeavours to resolve it amicably between them. If the dispute is not resolved between the Authorised Officer and Contract Manager, the matter shall be referred to senior levels in both organisations and subsequently to director and chief executive level if necessary. Disputes remaining unresolved following such referral shall, if the parties agree (and such agreement shall not be unreasonably withheld) be referred to non-binding mediation. If the parties do not agree to non-binding mediation or if the dispute remains unresolved, the dispute shall be referred:-
to the Expert where these Conditions of Contract expressly so provide in connection with the dispute or
to the exclusive jurisdiction of the Courts of England otherwise.
Any matter or dispute to be determined by an Expert under the Clauses shall be referred for determination to a person suitably qualified to determine such matter or dispute and who shall be nominated jointly by the City Council and the Contractor or failing such agreement within seven days to such person as may be appointed, on the application of either the City Council or the Contractor, by the President for the time being of the Law Society (the Expert).
The City Council and the Contractor shall on request promptly supply to the Expert all such assistance, documents and information as he may require for the purpose of his determination and both the City Council and the Contractor shall use all reasonable endeavours to procure the prompt determination of such reference.
The Expert shall be deemed to act as an expert and not as an arbitrator and his determination shall (in the absence of manifest error) be conclusive and binding upon the parties.
The costs of the Expert appointed under this Clause shall be borne equally by the Contractor and the City Council save as may be otherwise directed by the Expert.
Third Party Rights
No term of this Contract is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Contract.
Civil Contingencies and emergencies
The Contractor acknowledges that, under the Civil Contingencies Act 2004 the City Council is obliged to ensure that its services (and therefore its contractors who are delivering services on its behalf) are able to operate effectively at all times in a way that meets the needs of Westminster residents and addresses the needs of the workforce in the event of a major civil incident.
If a Civil Emergency arises during the Contract Period the City Council may instruct the Contractor to use its best endeavours to procure that such additional or alternative services are undertaken by the Contractor as and when required by the City Council to assist the City Council in its response to the Civil Emergency.
For the purposes of this Clause 42 “Civil Emergency” means a major incident, natural disaster or the presentation of a major risk any of which has the potential to cause death, injury or serious disruption to the everyday life of City Council customers and residents or others or the potential to cause serious damage to the Property or any other property, and the prevention or mitigation of which may require a special mobilisation and co-ordination of City Council's resources (which for this purpose shall include the resources of the Contractor) and the resources of the police, ambulance or fire services and/or other local, regional or central government bodies, departments or agencies with an interest in the welfare of the public and the prevention of such harm and/or damage.
Disaster Recovery And Business Continuity
The disaster recovery plan and the business continuity plan submitted by the Contractor as part of its Tender (`Disaster Recovery Plan' and `Business Continuity Plan' respectively) shall be reviewed by the Contractor on each anniversary of the Commencement Date and re-submitted to the Authorised Officer for approval.
The City Council shall be entitled to test the procedures set out in the Disaster Recovery Plan and Business Continuity Plan at least once every year should it so require and the Contractor shall co-operate fully with such testing.
If in the opinion of the Authorised Officer, acting reasonably, a Disaster Event has occurred the Contractor shall immediately implement the Disaster Recovery Plan and the Business Continuity Plan. The Contractor shall also be under an obligation to notify the Authorised Officer and immediately implement the Disaster Recovery Plan and the Business Continuity Plan if it considers that a Disaster Event has occurred. Any implementation by the Contractor of the Disaster Recovery Plan and the Business Continuity Plan shall be at its own cost and expense.
For the purposes of this Clause 43, “Disaster Event” shall mean any event or circumstance of whatever nature which, in the absence of the implementation of the Disaster Recovery or Business Continuity Plan, would seriously threaten the Contractor's ability to provide the Scheme to the Contract Standard.
The occurrence of a Disaster Event shall not relieve the Contractor of its obligation to provide the Scheme to the Contract Standard unless it is also a Force Majeure Event when Clause 44 shall apply. Any Losses incurred by the Contractor as a consequence of a Disaster Event shall be the sole responsibility of the Contractor.
Force Majeure
Except to the extent of any emergency procedures required as part of the Scheme, if either party is unable to perform any obligation under the Contract because of a matter beyond that party's reasonable control that arises from any of the following matters only:-
explosion;
war;
strikes, riots and civil commotion not confined to the Staff;
actual or threatened terrorist attack;
acts of local or central Government or other competent authorities (other than the City Council);
radioactive contamination; or
floods constituting a major environmental disaster.
(“Force Majeure Events”) that party will have no liability to the other for that failure to perform save that the City Council shall be entitled, if the Force Majeure Event is also a Civil Emergency, to instruct the Contractor in accordance with Clause 42.2.
Notwithstanding the relief granted to the parties by Clause 44.1, the parties shall nevertheless use their best endeavours in any situation where they have invoked this Clause 44 to perform their relevant obligations as soon as possible and to overcome or mitigate the effect of any Force Majeure Event on the provision of the Scheme. The Contractor shall immediately implement the Disaster Recovery Plan and Business Continuity Plan in accordance with Clause 43.
The parties shall not be entitled to relief under Clause 44.1 in any circumstances where they have caused or substantially contributed to any failure in the performance of their obligations by any default on their part.
The party claiming that an event of Force Majeure has occurred shall send to the other party written notice within 5 Working Days of the first occurrence of the Force Majeure with full particulars thereof including its date of first occurrence and the cause or event giving rise to it. The party claiming Force Majeure must notify the other immediately of the cessation of the Force Majeure event.
Subject to Clause 44.6 if as a consequence of a Force Majeure Event a party is prevented from complying with all or a substantial part of its obligations for a continuous period of more than 40 Working Days then either party may serve a notice terminating the Contract for Force Majeure and, neither party shall be liable to the other for any Losses arising out of such termination.
If the Force Majeure Event is also a Civil Emergency or the City Council in its discretion deems it as such, the City Council shall be entitled to elect that Clause 44.5 shall not apply for a period or periods which it shall specify to the Contractor by notice in writing and that it shall instead be entitled to instruct the Contractor in accordance with Clause 42.2.
framework agreement
From time to time the Contractor may enter into a framework contract with another contracting authority in accordance with provisions of Schedule 5.
THE COMMON SEAL of THE LORD )
MAYOR AND CITIZENS OF THE CITY )
OF WESTMINSTER was hereunto )
affixed by order: )
Director of Legal and Administrative Services
SIGNED as a deed by [ ] )
By [two directors] or [a director )
and the company secretary] )
............................................................
Director
............................................................
Director/Company Secretary
Schedule 1
Specification
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Schedule 2
Tender
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Schedule 3
pricing tables
Note for Bidders: for discussion as part of dialogue
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Schedule 4
tupe
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SCHEDULE 4
TUPE
Definitions
In this Schedule the following words and expressions shall have the meanings set out below -
Phase |
Meaning |
Directive |
means the European Directive 2001/23/EC as amended; |
Regulations |
means the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended or modified from time to time; |
Relevant Employees |
means the employees who are the subject of a Relevant Transfer; |
Relevant Transfer |
means a relevant transfer for the purposes of the Regulations; |
Scheme |
means the whole or any part of the scheme to be provided by the Contractor pursuant to this Contract or such of it as may from time to time remain the subject of this Contract; |
Sub-Contractor |
means a person to whom the Contractor sub-contracts any of its obligations under this Contract; |
Tupe Compliance On Termination
Handover on Termination
During the 12 months preceding the expiry of this Contract or after the City Council has given notice to terminate this Contract or at any other time as directed by the City Council, and within 15 Working Days of being so requested by the City Council, the Contractor shall fully and accurately disclose to the City Council any and all information in relation to all personnel engaged in providing the Scheme including all Relevant Employees who are to transfer as a consequence of a Relevant Transfer as the City Council may request, in particular but not necessarily restricted to any of the following:-
a list of employees employed by the Contractor;
a list of agency workers, agents and independent contractors engaged by the Contractor;
the total payroll bill (i.e. total taxable pay and allowances including employer's contributions to pension schemes) of those personnel;
the terms and conditions of employment of the Relevant Employees, their age, salary, date continuous employment commenced and (if different) the commencement date, enhancement rates, any other factors affecting their redundancy entitlement and any outstanding claims arising from employment.
The Contractor shall warrant the accuracy and completeness of all the information provided to the City Council pursuant to clause 2.1.1 and authorises the City Council to use any and all the information as it may consider necessary for the purposes of its businesses or for informing any tenderer for any services which are substantially the same as the Scheme (or any part thereof).
During the 12 months preceding the expiry of this Contract or where notice to terminate this Contract for whatever reason has been given, the Contractor shall allow the City Council or such other persons as may be authorised by the City Council to communicate with and meet the Relevant Employees and their trade union, staff association or employee representatives as the City Council may reasonably request.
During the 12 months preceding the expiry of this Contract or where notice to terminate this Contract for whatever reason has been given, the Contractor shall not without the prior written consent of the City Council unless bona fide in the ordinary course of business:
vary or purport or promise to vary the terms and conditions of employment of any employee employed in connection with the Scheme;
increase or decrease the number of employees employed in connection with the Scheme; or
assign or redeploy any employee employed in connection with the Scheme to other duties unconnected with the Scheme.
Indemnities
The Contractor shall indemnify the City Council and any new contractor appointed by the City Council and keep the City Council and any new contractor appointed by the City Council indemnified in full from and against all direct, indirect or consequential liability, loss, damages, injury, claims, costs and expenses (including legal expenses) which the City Council and any new contractor appointed by the City Council shall take all reasonable steps to mitigate, awarded against or incurred or paid by the City Council or any new contractor appointed by the City Council as a result of or in connection with the employment or termination of employment of any employee of the Contractor during any period prior to the date of expiry or termination of this Contract.
Sub-Contractors
In the event that the Contractor enters into any sub-contract in connection with this Contract, it shall impose obligations on its Sub-Contractor in the same terms as those imposed on it pursuant to this clause 2 and shall procure that the Sub-Contractor complies with such terms. The Contractor shall indemnify the City Council and keep the City Council 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 City Council as a result of or in connection with any failure on the part of the Sub-Contractor to comply with such terms.
Schedule 5
framework agreement
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SCHEDULE 5
FRAMEWORK AGREEMENT
INTRODUCTION
In entering into this Contract the City Council is acting as a central purchasing body through which other London Borough Councils, Metropolitan Boroughs and County Councils within England can use the Conditions set out in this Contract and this Schedule as a framework agreement to procure the provision of an on-street vehicle network scheme (`Framework Agreement'). Other public bodies wishing to benefit from this shall be known as “Framework Authorities” for the purposes of this Schedule 5. All Framework Authorities will be responsible for taking their own legal advice relating to the use of the framework arrangements and the application of the EU regulations.
This Schedule 5 establishes the Framework Agreement under which the Framework Authorities may, subject to the provisions of this Schedule, enter into framework contracts for the provision of the Scheme by the Contractor.
PROCESS
In the event that a Framework Authority wishes to enter into a contract with the Contractor under the Framework Agreement (`Framework Contract'), it shall provide details of the scheme required to the City Council which shall provide these details together with notification of the request to the Contractor in writing.
The Contractor shall, within 7 days of receipt of notification by the City Council in accordance with 3 above confirm the requirement and confirm whether it will be in a position to provide the Scheme to the Framework Authority without any detriment to the Scheme provided to the City Council and any other Framework Authorities. The Contractor shall also confirm the start date for the Framework Contract with the Framework Authority.
The City Council shall confirm the requirements with the Framework Authority and shall confirm to the Contractor whether in its absolute opinion it may enter into the Framework Contract with the Framework Authority. If the City Council considers that it's Scheme will be affected by a contract with another Framework Authority it may refuse permission to the Contractor to enter into the Framework Contract with that Framework Authority.
Once agreed by the City Council, the Contractor shall enter into a Framework Contract with the Framework Authority and commence provision of the Scheme in respect of that Framework Authority on the date stated in the Framework Contract.
The City Council accepts no liability in the event that, having notified the Contractor that a Framework Authority wishes to enter into a Framework Contract, that Framework Authority does not enter into a Framework Contract.
The Contractor shall not enter into any Framework Contract without having first received notification from the City Council in accordance with paragraph 3 above. In the event that the Contractor does contract with any Framework Authorities prior to having received a notice to do so in accordance with paragraph 3, the parties agree that that contract shall not be and shall not be considered to have been a contract entered into under the Framework Agreement and accordingly shall be a new and separate contract between the Framework Authority and the Contractor.
TERMS AND CONDITIONS
The terms and conditions of any Framework Contract entered into between the Contractor and a Framework Authority shall be as set out in this Contract. Substantial amendments to this Contract will not be permitted. However in so far as they need to be supplemented or refined to reflect the particular circumstances or specific requirements of the Framework Authority the following Conditions and Schedules may be supplemented or refined in the final form of the Framework Contract:
The definition of “Council” shall be replaced with the name and address of the contracting Framework Authority; and
Commencement and duration (however the Contract Period cannot be any longer than 4 years)
Schedule 1 - the Specification (provided changes are not substantial)
Schedule 4 TUPE and Related Matters
Default mechanism (provided they are consequential to any Scheme changes).
The Contractor and the Framework Authority shall enter into a Framework Contract as a Deed.
INDEMNITY
The City Council does not guarantee or warrant or accept any liability as to the volume, nature, frequency or scope of any scheme that the Contractor shall be required to provide to any Framework Authority under any Framework Contract.
For the avoidance of doubt, the Contractor agrees that the City Council shall have no liability under this Framework Agreement for any breach of contract, negligence (or other tortious act) or breach of statutory duty of any of the Framework Authorities under any Framework Contract entered into between the Contractor and the Framework Authority and accordingly the Contractor's sole remedy in respect of any breach of contract, negligence (or other tortious act) or breach of statutory duty shall lie against the relevant Framework Authority.
The Contractor shall be responsible for and shall release and indemnify the City Council, it's employees, agents and other suppliers, on demand from and against all liability for all Losses howsoever arising whether in contract tort (including negligence) or otherwise, and whether directly or indirectly, out of or in the course of, or in connection with the Contractor's provision or failure to provide the Scheme under any Framework Contract(s) or breach by the Contractor of any provisions of the Framework Contract (s).
The Contractor shall not join the City Council in as a party to any action resulting from a claim made under any Framework Contract(s) without the consent of the City Council having first been given in writing.
Termination of this Contract shall be without prejudice to any Framework Contracts between any and all of the Framework Authorities and the Contractor existing as at the date of the Termination which shall, subject to any early termination by any or all of the Framework Authorities, continue in full force in accordance with their terms.
Schedule 6
bays
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Schedule 7
parent company guarantee
Schedule 8
city council's environment and fleet policies
Confidential |
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October 2008 |
Conditions of Contract |
Volume 3 - Draft Project Agreement and Schedules |
Vehicle Network |
Confidential |
53 |
October 2008 |