Memorandum of Agreement

Between

i. English Nature

Northminster House, Northminster Road, Peterborough PE1 1UA

ii. Royal Society for the Protection of Birds

The Lodge, Sandy, Bedfordshire SG 19 2DL

Hereafter referred to as “the Partners”

ACTION FOR BIRDS IN ENGLAND

A partnership programme between English Nature and the Royal Society for the Protection of Birds taking conservation action for priority bird species in EnglandContents

Page

Definitions 3

Background 5

Introduction 6

Funding 7

Administration 9

Freedom of information 11

Non performance 11

Contractual arrangements and timescales 12

Intellectual property rights 12

Publicity and communication 14

Termination 15

Arbitration 15

Governing law 15

Entire agreement 16

Good faith 16

Annex A 17

Definitions

1. Background

1.1 Over the last decade, English Nature and RSPB have entered into a growing number of partnership projects. The key drivers for these projects have been the delivery of UK BAP species action plan targets, the PSA targets for SSSI condition and farmland bird recovery, and action for species of conservation concern that are of high priority in England. The projects have involved a broad range of bird conservation activities, including surveillance and monitoring, research and development and recovery management. Indeed, it is widely perceived that the recovery projects provide some of the best examples of wildlife gain derived through statutory/NGO partnership (eg Red Kite, Cirl Bunting and Stone Curlew) whilst the R&D work has been instrumental in providing the evidence-base necessary to drive major policy change (eg changes in agriculture policy following studies on farmland birds).

1.2 For almost all of the projects to date, project initiation and planning (including media/PR), project review and key decision-making have been undertaken jointly by EN and RSPB. Funding has been shared and RSPB has taken the operational lead (ie, employed staff and responsible for day to day project management). For most projects, English Nature and RSPB have shared the `above the line' project costs, although a number of projects have involved partnerships with other government or non-government organisations (eg Defra, FC, BTO, Anglian Water). Most projects have been administered via a `fixed maximum contribution' agreement between English Nature and RSPB, usually on a project by project basis. In FY 2003/04, the Birds Unit of English Nature was engaged in around 20 such agreements with RSPB at a total cost to English Nature of around £346k.

1.3 The consolidation of some or all of the joint projects into a single large partnership programme will have several major benefits for the partners, including: more effective use of the admin/finance/project management resources of both partners (after initial agreement has been set-up); potentially greater project flexibility (resources should be more easily moved between projects as required, or new projects added within or between FYs); greater recognition of the joint contributions to partnership projects (a single large partnership programme with its own branding should mean that both partners gain extra recognition for their intellectual and financial contributions to the individual projects and to bird conservation in general), and greater stability of funding for the partnership programme.

2. Introduction

2.1 This Memorandum of Agreement (MoA) dated this day 1 April 2005 and set in place for two financial years (April 2005 - March 2006 & April 2006 - March 2007), is made between English Nature (hereinafter referred to as EN) and the Royal Society for the Protection of Birds (RSPB) and hereafter referred to as the Partners, in respect of a partnership programme entitled Action for Birds in England (hereinafter referred to as the partnership programme).

2.2 Further details of the individual projects included in the partnership programme are given in Annex A. Each of the projects will have a project plan that will include details of the project aims/objectives, methods employed, outputs and dissemination that will not form part of this Annex, but will be subject to agreement by the partners. The content of Annex A will be reviewed annually at an initial planning meeting in May and any changes will be agreed at a further meeting in September and included in an addendum to the Annex which will take affect in the following April.

2.3 Set out below (para 3.2) are details of the arrangements whereby EN and RSPB are prepared to make contributions towards the costs of the partnership programme.

2.4 The partnership programme will be overseen by a Programme Steering Group (PSG) which will consist of representatives of EN and RSPB (membership defined in Annex A - other members may be co-opted as necessary). This will meet three times a year, as follows:

2.5 The nomination of a contractor and the award of any contract to undertake work covered by the partnership programme shall be with the full agreement of the nominated officers of the Funding Partners.

2.8 Where the Partners through their normal fund raising operations are able to secure general funds from sponsors for individual projects within the partnership programme, such funding will normally be offset against the contribution of the partner and not against the costs of the project as a whole.

3. Funding, payments and reporting

Note: 1. EN may wish to increase its contribution to the agreement, to be agreed by written mutual consent.

2. Other collaborating partners contribute financially to the projects included in the partnership: this contribution is currently expected to amount to £95,682 in 2005/06 and £61,200 in 2006/07. Collaborating partners include Defra, Forestry Commission and certain local authorities.

3.3 RSPB undertakes to ensure that its annual contribution to the partnership at least matches that of EN as shown above and detailed in Annex A. RSPB also undertakes to inform EN directly or via the PSG as appropriate, by the latest at its September meeting, if its annual contribution is to be reduced by more than 10% of the full contribution shown above. The PSG will then assess the likely impacts, if any, of such a reduction upon the delivery of the agreed key outcomes. This may involve amending the key outcomes of one or more planned or ongoing projects.

3.4 Payments will be made quarterly in arrears on a receipt by EN of an invoice from RSPB. Payments for Quarter 2 and Quarter 4 each year will be made against the delivery of the agreed key outcomes for that financial year (as specified in Annex A and as further detailed in 3.5 below). Advance payments may be given for the costs of recruitment, publicity events or materials and capital equipment, and must be agreed by EN's nominated officer.

3.5 Invoices for the payments for the 25% of EN's financial contribution due for Quarter 1 and Quarter 3 will be submitted to EN by 15 June and 15 December respectively. Payments for Quarter 2 and Quarter 4 will be made against provision of satisfactory written reports by RSPB and as agreed by the nominated officers. A short interim progress report will be submitted to EN's nominated officer at least one week before the September PSG meeting: this will be subject to amendment at the meeting and a revised report together with an invoice for 25% of EN's financial contribution to the partnership agreement will be sent to EN by the 20 September. An annual progress report will be submitted to EN's nominated officer at least one week before the January PSG meeting: this will be subject to amendment at the meeting and a revised report together with an invoice for the remaining 25% of EN's financial contribution will be sent to EN by the 15 February.

3.6 Where the agreed outcomes are not completed by RSPB, payments for that element of the partnership programme will be deferred.

3.7 The format, content and style of interim and annual reports will be discussed and agreed by the PSG at its initial meetings following the signing of this MoA, An appropriate written summary of the agreed reporting format etc will be appended to the MoA.

3.8 The known funding contributions of collaborating partners will be considered and taken account of at the May and September PSG meetings when assessing new and revised project work plans and the respective contributions of the funding partners. The nominated officers will agree how any other later funding from collaborating partners should be deployed within the partnership programme consistent with the requirements of the collaborating partner.

3.9 Potential sponsors must be discussed and agreed by the partners to ensure that they are compatible with each partner's policy concerning the acceptance of sponsorship, and such agreement to new sponsors may not be unreasonably withheld. Any of the partners who wishes to withhold its agreement to a proposed sponsor must specify in writing their reasons for withholding such agreement.

3.10 Both partners have charitable status and therefore as a research agreement this MoA will be considered to be outside of scope for VAT.

4. Administration

4.1 RSPB, as the working partner, will be responsible for the financial arrangements relating to this agreement. RSPB shall prepare Statements of Expenditure in accordance with their standard accounting procedures. All parties to the agreement shall be responsible for reporting such information that RSPB may require in the format as set out in the standard procedures.

4.2 RSPB shall be responsible for the day to day management and execution of the partnership programme.

4.3 All parties to the agreement shall be responsible for the provision of the necessary personnel, accommodation, equipment and services, together with the exercise of proper financial control for the disbursement of all monies and use of funds related to this Partnership programme.

4.4 a. All parties to the agreement shall maintain proper records related to this partnership programme. All parties shall reserve the right to request reasonable access to documents for the purposes of examination of all records related to the Partnership programme, by such staff as it deems appropriate.

b. All access under 4.4 (a) shall include Internal or Statutory Auditors.

4.5 An auditor may be appointed by the PSG with the approval of the Partners to this agreement to certify such matters as may be determined by the PSG.

4.6 Each party shall maintain an inventory of any capital items purchased under this Partnership programme and shall inform the PSG of additions to the inventory. All items so purchased shall remain the property of the Partner which made the purchase and shall be safeguarded and maintained adequately. Any damage, loss or theft to any item during the period of the Partnership programme, other than fair wear and tear, shall be made good at that partners own expense.

4.7 All parties to the agreement shall use their best endeavours to ensure that the aims and objectives of the Partnership programme are achieved.

4.8 All parties to the agreement shall observe confidentiality and compliance with legal, fiscal and other such statutory requirements, as they relate to the Partnership programme.

4.9 Any party to this agreement shall not assign or transfer any interest in this agreement without prior written joint acceptance of the other Parties.

4.10 All parties under this agreement shall indemnify the appropriate personnel against any compensation action for any damages which have occurred to personnel arising out of or in the course of the Partnership programme, unless due to any neglect or intentional fault of the personnel.

5. Freedom of information

5.1 English Nature, as a non-Departmental Public Body is required to adhere to Freedom of Information legislation. There is therefore a presumption that information on any aspect of English Nature's work may be disclosed. The PSG has the responsibility for identifying any aspect of this partnership programme which may not be disclosed. The basis for any such decision must be recorded. English Nature will advise the PSG of any requests for information identified for non-disclosure.

6. Non performance

6.2 Agreement from both partners must be obtained before any work within the partnership programme is subcontracted to a third party.

6.3 Where applicable, payments to contractors shall be made on satisfactory receipt of works, goods and services and shall be paid under the terms of the Partner's standards, of payment when due.

6.4 If the contractor does not complete his obligations under this Memorandum whether as to time or standard or otherwise then the Partners reserve the right and shall be entitled to:

6.4.1 with-hold payment for any work not completed to the agreed standard and/or

6.4.2 require the contractor to rectify the situation at their own cost and/or

6.4.3 arrange completion of the work at the Partners own cost and the Partners shall then be entitled to claim the moneys expended from the contractor.

6.5 Payment shall be approved and processed by the Working Partner on receipt of the completed work to timescale and to the agreed standard having exercised proper financial control for the Partnership programme outputs.

6.6 The Partners reserve the right to withhold future payments should action be taken under clause 6.4

7. Contractual arrangements and timescales

7.1 The partnership programme will commence on 1 April 2005 and will exist for at least two years.

7.2 In May 2006, the PSG will consider if the partnership programme should continue beyond 31 March 2007. If permitted, EN may be prepared to provide funding for up to an additional three financial years. It is important to note that, as set out in Defra's Rural Stratgey 2004, English Nature is planned to become part of a new integrated agency responsible inter alia for biodiversity conservation from January 2007.

7.3 Any contract for the purposes of the completion of work defined in this MoA shall only be let for the period of time set out in this MoA. Where for practical reasons it may be necessary to offer a contact beyond this period, all responsibility will rest with the Partner letting that contract.

7.4 When RSPB needs to recruit additional staff to work mainly on projects within the partnership programme and when such staff are to be employed for one year or more, EN will be invited to nominate a representative to sit on any recruitment board.

8. Intellectual Property Rights

8.1 All Background Intellectual Property Rights provided or made available by a Partner for the purposes of the partnership are and remain the exclusive property of the respective Partner (or, where applicable, its licensor).

8.2 Ownership to all Foreground Knowledge and all Foreground Intellectual Property Rights shall belong jointly to the Partners.

8.3 Foreground Knowledge and any Background Knowledge comprised within the projects identified in Annex A shall be made freely available to the public in accordance with the requirements of the Freedom of Information and on the following terms:

users may not re-publish the whole or any substantial part of the Information without the written agreement of the owners of the relevant Foreground Intellectual Property Rights and any relevant Background Intellectual Property Rights.

Information will be made freely available to all Partners during and for the purposes of the partnership, accepting that their use of such Information will, where applicable, be subject to the confidentiality obligations set out in this agreement.

8.4 Partners shall maintain and manage the Information in a manner suitable for long-term national benefit depositing where possible this Information with appropriate national organisations.

8.5 RSPB and English Nature shall be free to use and exploit the jointly owned Foreground Knowledge and Foreground Intellectual Property Rights subject to the provisions of confidentiality.

8.6 If any of the Partners requires the use of another Partner's Background Knowledge in order to generate its Foreground Knowledge for the purpose of the Project then such Background Knowledge (and any corresponding Background Intellectual Property Rights) shall be made available by royalty-free, non-exclusive licence. The Partner supplying such Background Knowledge is responsible for seeking any necessary permissions for their use as part of the Partnership.

8.7 No Partner will be obliged to ensure that the restrictions on use with which Background Knowledge or Foreground Knowledge results are published to a wider audience are not violated by third parties.

8.8 Partners are responsible individually and jointly for ensuring due acknowledgement is given in disseminated products to third parties for their contributions to the Project.

9. Publicity and communication

9.1 At its January meeting, the PSG will agree a programme of planned publicity events for the next year of the partnership programme. The partners will each nominate a publicity officer (as specified in Annex A) who will lead the publicity programme on behalf of the partnership. In addition, each partner can instigate ad hoc publicity events with the agreement of the other partner. It is accepted that direct enquiries for information from journalists have to be dealt with on the spot as and when they arise. In such cases, where prior liaison is not practical, every attempt should be made to recognise the work and involvement of both partners and any collaborating partners and sponsors.

9.2 All publicity and communication material, whatever the medium of communication, which relates to, or draws upon, work undertaken under this agreement must give due and appropriate acknowledgement to both partners. Appropriate acknowledgement shall be agreed by the publicity officers and the lead officers (as specified in Annex A) for the specific projects from both partners. The type of acknowledgement will take account of the different roles of the partners, including levels of funding, project initiation, intellectual, development and planning input, and operational lead.

9.3 The above-mentioned material should be passed at the draft stage to the publicity officer and lead officer of the other partner for comment, as necessary. It will be incumbent on these officers to send back comments within a mutually agreed timescale. It is the responsibility of the publicity officers to ensure that regular liaison is maintained with the respective press offices and regional/local publicity contacts.

9.4 Some projects will involve the production of popular articles, talks and papers at conferences and papers in refereed journals. The partner leading on the production of the talk or paper shall ensure that the involvement of the other partner is given appropriate acknowledgement. This may involve joint authorship for an appropriate staff member from the other partner, providing that the person has made an appropriate intellectual contribution to the initiation, development, planning, analysis or write-up of the project concerned. Opportunities for co-authoring of talks, articles and papers will be explored at appropriate meetings of the PSG.

9.6 The Parties undertake to be bound by and acknowledge that they are fully aware of the provisions of UK Data Protection Law (The Data Protection Act 1998 and subsequent regulations), particularly the provisions governing fair and lawful processing, data quality and accuracy and security of data.

10. Termination

10.1 Any partner to this MoA may give 9 months notice in writing of an intention to withdraw from the agreement with reasons to the other partners.

10.2 The remaining partner will consider what action to take in respect of the continuation of the partnership programme.

10.3 The remaining funding partner will not be required to take on the responsibility or financial liability of a funding partner who has notified intention to terminate. If one or both of the remaining funding partners chooses to increase their contribution to the partnership programme, this MoA will be revised accordingly.

10.4 If the working partner withdraws support from the partnership programme and effectively terminates the contract, all funding partners shall be reimbursed any share of expenditure incurred at the point of termination.

11. Arbitration

11.1 Any dispute or difference arising from interpretation of the terms of this agreement shall, at first, be referred to the respective senior management levels of the partners to attempt resolution. In the event of failure to reach agreement, at the option of any aggrieved party, the matter will be referred to the arbitration of a single arbitrator to be agreed upon by all parties to the agreement. Failing such an agreement an arbitrator may be invited to be appointed by a mutually acceptable institution.

12. Governing law

12.1 This agreement will be governed under English Law.

13. Entire agreement

13.3 Notwithstanding any other provision of this Agreement nothing in this Agreement shall be deemed to confer, nor is intended to confer, a benefit on any third party for the purpose of the Contracts (Rights of Third Parties) Act 1999 or for any other purpose.

14. Good faith

14.1 The parties mutually agree with one another that in all matters arising out of or concerning the performance or observance by them of the obligations on their part and the conditions contained in this MoA, they will act in a proper reasonable and diligent manner in accordance with the principles of good faith.

Annex A

Membership of the partnership Programme Steering Group will be as follows:

Nominated Officer of EN Phil Grice

Nominated Officer of RSPB David Gibbons

Andy Brown, Julian Hughes, Leigh Lock

Others by invitation as needs dictate

Chair person To be agreed at first meeting

Nominated Publicity Officer of EN Stuart Burgess

Nominated Publicity Officer of RSPB André Farrar

Table 1 provides the list of projects to be pursued under the partnership programme in the period 2005/06-2006/07, together with their indicative costs, key outcomes and lead officers. Each of the projects listed in Table 1 will have a project plan agreed by the respective lead officers from RSPB and EN. This will include details of the project's aims/objectives, methods, outputs and dissemination, which will not form part of this Annex. Each project will provide an annual report to the relevant EN lead officer.

Table 1 Projects included within the EN/RSPB Action for Birds Partnership Agreement 2005/06-2006/07: indicative costs (provisional), key outcomes and lead officers

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February 2005 - PS23