DATED

DATED 2007

THE MAYOR AND BURGESSES

OF THE LONDON BOROUGH

OF BROMLEY

and

COMENSURA LIMITED

CONTRACT

for

a Vendor Neutral Managed Corporate Agency Staff Service

CONTENTS

ARTICLES OF AGREEMENT

CONTRACT CONDITIONS

Condition No.

1 Definitions and Interpretation

2 Form of Contract

3 Contract Period

4 Authorised Officer and Instruction Officers

5 Account Manager

6 Managing Agent's Obligations

7 Performance Monitoring

8 Management Information

9 Terms of Payment

Invoicing
Security
Health and Safety
Failure to Deliver the Service
Termination
Consequences of Termination
Other Consequences of Termination
Recovery of Sums Due to the Council
Waiver
Agency
Assignment and Sub-Contracting
Insurance and Indemnity
Extent of Liability
Confidentiality
Freedom of Information
Data Protection
Patents and Copyright
Intellectual Property Rights
Statutory and other Regulations
Miscellaneous
Force Majeure
Notices
Severance
Resolution of Disputes
Contracts (Rights of Third Parties) Act 1999
Change Management Process
Evidence in Connection with Legal Proceedings
Information on Termination
Ombudsman and Other Investigations
Equality and Diversity
Bonds and Guarantees
Civil Contingencies Act

ARTICLES OF AGREEMENT

THIS CONTRACT is made the day of 2007

BETWEEN

THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF Bromley of the Civic Centre Stockwell Close, Bromley, Kent, BR1 3UH ("the Council") of the one part

and

COMENSURA LIMITED (Registered Company Number ) whose registered office is situated at 800 The Boulevard Capability Green Luton LU1 3BA ("the Managing Agent") of the other part.

RECITALS

1. In this Contract words and expressions shall have the same meanings as are respectively assigned to them in these Articles and in the Conditions of Contract hereinafter referred to.

2. In June 2005 Surrey County Council of County Hall, Penrhyn Road, Kingston upon Thames, Surrey, KT1 2DN (“SCC”) invited tenders for a vendor neutral managed service for temporary workers (“SCC's Tender Documents”). Following evaluation of the bids received a contract was awarded to the Managing Agent (the “SCC Contract”).

3. SCC's Tender Documents included an option for all or any neighbouring Local Authorities (including the Council) to enter into individual contracts with the successful tenderer based on its tender submission to SCC.

4. Pursuant to the option referred to in 3 above the Council awarded a Contract to the Managing Agent on the terms and conditions contained in this Contract to manage a Corporate agency staff service (“the Service”).

NOW IT IS AGREED between the Council and the Managing Agent as follows:

1. This Contract constitutes the sole contract between the Council and the Managing Agent for the provision of the Service by the Managing Agent.

2. The following documents shall be deemed to form and be read and construed as part of this Contract viz:

(a) Conditions of Contract

Specification
All appendices and schedules to any of the above

3. The Managing Agent shall provide the Service fully in accordance with all the provisions of this Contract (“the Contract Standard”) for the period referred to in Contract Condition 3.

4. So long as the Managing Agent shall continue to provide the Service to the Contract Standard the Council shall make the payments due to the Managing Agent in accordance with the Contract.

5. This Contract shall be subject to English law in all respects (including formation) and shall be construed and interpreted in accordance with English law and shall be subject to the jurisdiction of the Courts of England.

6. Nothing in this Contract shall give the Managing Agency the exclusive right to manage the supply of temporary staff and the Council, in cases where it considers it appropriate, may arrange the supply of a temporary worker direct from a supply agency.

IN WITNESS whereof the common seal of the Council was hereunto affixed and the authorised representatives of the Contractor have signed this Agreement as a Deed the day and year first before written

The Common Seal of The Mayor and )

Burgesses of the London Borough of ) Seal affixed

Bromley was hereunto affixed in the )

presence of:- )

Executed as a Deed by COMENSURA)

LIMITED and signed by: )

................signed....................................................Director

................signed..........................................Director/~~Secretary~~

CONTRACT CONDITIONS

1. DEFINITIONS AND INTERPRETATION

In these Conditions, except where the context otherwise requires, the following words and expressions mean:-

“Account Manager”

the person who is to represent the Managing Agent for the purposes of this Contract and appointed pursuant to condition 5.

“Assignment”

the period during which a Temporary Worker is engaged by a Panel Vendor to render work and/or services to the Council.

“Authorised Officer”

the person authorised to represent the Council for the purposes of this Contract as appointed pursuant to Condition 4.

“Commencement Date”

the date stated in the Contract Schedule.

“Conditions”

these Conditions of Contract including any appendices, annexes and schedule thereto.

“Confidential Information”

any information which has been designated as confidential by either party (acting reasonably) and giving notice in writing to the other.

“Contract”

the agreement entered into between the Council and the Managing Agent for the provision of the Service and comprising these Conditions, the Specification, the Pricing Document, the approved Implementation Guide, the Council's unconditional letter of award to the Managing Agent and any additional correspondence agreed between the Managing Agent and the Council contained in Appendix 1 hereto (if any).

“Contract Period”

the period specified in Condition 3.

“Contract Standard”

such standard as complies in each and every respect with all relevant provisions of the Contract.

“Default Notices”

all or any notice served in accordance with Condition 14.4.

“Documents”

completed or uncompleted files, books, reports, tender documents, data bases, records, correspondence and any other documents (in whatever form) produced by the Managing Agent pursuant to this Contract.

“Exempt Information”

any information or category of information, document, report, contract or other material containing information relevant to this Contract that potentially falls within an exemption under the FOIA including but not limited to, confidentiality, trade secrets and prejudice to commercial interests.

"FOIA"

the Freedom of Information Act 2000 and any subordinate legislation made under this Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner in relation to such legislation or any other legislation or codes governing access to information.

“Gain Share”

The apportionment of the savings generated between the Council and the Managing Agent.

“Information”

all or any information requested under the FOIA relating to or arising out of or under this Contract.

“Instructing Officers”

persons identified and nominated by the Council as the person within a particular team or service who routinely order and manage Temporary Workers.

“Invoice”

the invoice(s) submitted in accordance with Condition 9.

"Invoicing Address"

the address stated in the Contract Schedule to which the Managing Agent shall submit all invoices raised in accordance with the provisions of this Contract.

“Managing Agent's Personnel”

the Managing Agent's partners, directors and employees.

“Order”

a request from the Council to the Managing Agent for a Temporary Worker made in accordance with Schedule 1.

“Panel Vendor Agreement”

any agreement entered into between the Managing Agent and a Panel Vendor in accordance with clause 6.9.

“Panel Vendor”

those Supply Agencies entering into a Panel Vendor Agreement with the Managing Agent to supply Temporary Workers to the Council.

“Personal Data”

means personal data as defined in the Data Protection Act 1998 that is processed by the Managing Agent in connection with the Service.

“Premises”

any of the Council's premises or any other establishment in the borough to which the Managing Agent may be required under the Contract to supply the Service.

“Processing / Processed”

has the same definition as the terms have under the Data Protection Act 1998.

“Refund”

The payment to be made by the Managing Agent to the Council in accordance with clause 9.1.2.

“Relevant Period”

14 weeks from the commencement of the first Assignment of the Temporary Worker with the Council or 8 weeks from the day after the end of the last Assignment of the Temporary Worker with the Council, whichever is the later.

“Service”

the Vendor Neutral managed corporate agency staff service as detailed in the Contract.

“Specification”

the document describing the Service and including any appendices or schedules (if any) to the Specification included as Schedule 1.

“Supply Agency”

a person, firm or company who supply staff on a temporary basis to the Council.

“Temporary Workers”

individuals who are supplied via a Supply Agency to carry out any assigned tasks or series of tasks at designated locations during agreed periods of time.

“Timesheet”

the electronic format used to record the number of hours worked by a Temporary Worker which is signed by the Instructing Officer as confirmation of the hours worked.

“Vendor Neutral”

means the Managing Agent will neither supply any Temporary Workers directly itself nor give any form of preferential treatment to any Supply Agencies but shall act as an unbiased facilitator to impartially manage multiple Supply Agencies on behalf of the Council.

2. Form of Contract

2.1 Variation of Conditions

2.1.1 No deletion from, addition to, or variation of the Conditions shall be valid or of any effect unless agreed in writing and signed by the Authorised Officer and Account Manager.

2.1.2 In the event of any inconsistency between these Conditions and any provisions in any other document forming part of the Contract the Conditions shall prevail.

2.2 Copyright

Copyright in the documents comprising the Contract shall vest in the Council but the Managing Agent may obtain or make at its own expense any further copies required for use by the Managing Agent within its own organisation in the performance of the Contract but for no other purpose whatsoever.

2.3 Headings

The headings contained in this document are for reference purposes only and shall not be incorporated into the document and shall not be deemed to be any indication of the meaning of the clause to which they relate.

2.4 Good Faith

Both parties to this Contract shall act in good faith towards each other in relation to all matters arising under it and in particular:

2.4.1 both parties shall do all things reasonably within their power, which are necessary or desirable to give effect to the spirit and intent of this Contract and its fundamental objectives.

2.4.2 the Authorised Officer shall be given all information and other facilities he may require to ensure that the Managing Agent is fulfilling its obligations under this Contract.

Sufficiency of Information

In calculating the figures and percentages contained in Condition 9 the Managing Agent shall be deemed to have satisfied itself as to the accuracy and sufficiency of these, and the payments due to the Managing Agent shall (except in so far as is otherwise provided in the Contract) cover all the Managing Agent's obligations under the Contract.

Contract Standing Orders

In all respects in the provision of the Service and the performance of this Contract the Managing Agent will be subject to the Council's Contract Standing Orders and Financial Regulations copies of which may be seen by arrangement.

2.7 Best Value

The Council and the Managing Agent have entered into the Contract in the spirit of partnership with the object of providing an effective economic and efficient Service. The Managing Agent has declared its intention to continuously improve delivery of the Service in accordance with the principles of Best Value as defined in the Local Government Act 1999.

3. Contract Period

Subject to Condition 15 the Contract shall remain in force for a period of three years from the Commencement Date and thereafter if required by the Council for a further period or periods not exceeding two years in total on the same terms but excluding this Condition. For the avoidance of doubt, the entire term shall be no longer than five years.

4. Authorised Officer and Instructing Officers

4.1 The Authorised Officer authorised to act on behalf of the Council shall be the Officer named in the Contract Schedule.

4.2 The Instructing Officer(s) shall be the officer(s) named in the Contract Schedule and/or any additional or replacement officers appointed in accordance with this Condition 4.

4.3 The Council shall forthwith give notice in writing to the Managing Agent of the replacement of the Authorised Officer or Instructing Officer(s) and/or if any person ceases to be the Authorised Officer and/or Instructing Officer(s).

4.4 Except as specifically provided for elsewhere in the Contract the Authorised Officer shall be the duly authorised representative of the Council for all purposes connected with the Contract.

4.5 From time to time the Authorised Officer may appoint one or more additional persons to act for the Authorised Officer generally or for specific purposes or periods. Immediately any such appointment is made the Authorised Officer shall give written notice to the Managing Agent. The Authorised Officer shall also promptly give notice to the Managing Agent of the removal of any person so appointed to act as the Authorised Officer.

4.6 For the avoidance of doubt, the Authorised Officer and any nominated representatives shall be entitled to monitor the performance of the Service by the Managing Agent and shall have the power to intervene in case of any contract failure in accordance with the provisions of the Contract.

4.7 The Managing Agent shall in no circumstances question the existence or extent of the authority of any person notified to the Managing Agent in writing to be a representative of the Authorised Officer.

4.8 The Managing Agent shall allow the Authorised Officer or his representatives rights of access to the Managing Agent's premises and shall produce for inspection such documentary evidence including any electronic data as the Authorised Officer may deem reasonably necessary to resolve any dispute or difference arising in connection with the Contract. The Managing Agent shall also allow the Authorised Officer or his representative to consult directly with any of the Managing Agent's Personnel during normal working hours for the purpose of resolving such disputes or differences.

5. Account Manager

5.1 The Managing Agent shall appoint an Account Manager empowered to act on behalf of the Managing Agent for all purposes in connection with the Contract at least 14 days prior to the Commencement Date and such appointment shall be subject to the prior approval of the Council. The person so appointed shall not be removed or replaced by the Managing Agent without the prior consent of the Council, which shall not be unreasonably withheld. The Council shall have at any time the right to require the Managing Agent to replace the Account Manager provided that the Council's grounds for requiring replacement are reasonable.

5.2 The Account Manager shall be responsible for liaising with the Authorised Officer on all matters arising during the Contract Period and shall be available for consultation when required by the Authorised Officer. The Account Manager and the Authorised Officer shall agree on the method of communication and on a procedure for dealing with emergencies prior to the Commencement Date.

5.3 The Account Manager shall inform the Authorised Officer promptly of and confirm in writing instances of activity or omission on the part of the Council, which prevent or hinder, or may prevent or hinder the Managing Agent from complying with the Contract. The provision of information under this clause shall not in any way release or excuse the Managing Agent from any of its obligations under the Contract.

5.4 The Managing Agent shall forthwith give notice in writing to the Authorised Officer of the identity, address and telephone numbers of any person authorised to act for any period as deputy for the Account Manager

6. Managing Agent's Obligations

The Managing Agent shall provide the Service in a proper, efficient and professional manner to the Contract Standard.

6.2 The Managing Agent shall ensure the Service shall be capable of meeting any performance criteria stated in the Specification and shall provide evidence of compliance with this requirement if requested by the Authorised Officer.

In the event of the Managing Agent being unable to perform the Service or any part thereof, it shall immediately inform the Authorised Officer giving details of the circumstances reasons and likely duration. Nothing in this condition 6.3 shall in any way alter, modify, relieve or in any other way vary the Managing Agent's obligation to provide the Service. The Managing Agent shall ensure that absences or shortages of its personnel do not disrupt the provision of the Service and that the Contract Standard is met at all times.
The Managing Agent shall require the Panel Vendors to comply with all reasonable instructions of the Council in relation to the Temporary Worker's access to the Council's premises at all times during an Assignment, including but not limited to instructions about ID cards and security measures.
The Managing Agent shall provide to each Panel Vendor for supply to each Temporary Worker prior to the commencement of each new Assignment a copy of the Council's Health & Safety Employee Guide, Code of Conduct for Employees and Diversities and Equalities policy and such other relevant policies as may be provided to it by the Council for distribution to Temporary Workers
The Managing Agent shall require the Panel Vendors to perform all interviews, curricula vitae verification, testing and/or background and written references checks in respect of each Temporary Worker proposed to be assigned to the Council as required by Schedule 3.
The Managing Agent shall manage the accounting and invoicing for the provision of Temporary Workers in accordance with the terms of Schedule 4.
The Managing Agent shall provide the Council with the reports and information required in accordance with Schedule 5.
The Managing Agent has entered into or shall enter into a Panel Vendor Agreement with each Panel Vendor in such format as shall be agreed with the Council.

6.10 At any time upon the Council's request and where there are reasonable grounds for termination, Managing Agent shall require the Panel Vendor to remove any Temporary Worker assigned to the Council. Where this request is made within the first four (4) hours of commencement of an Assignment the Council will not be charged. Where the same is required by the Council, Managing Agent shall require the Panel Vendor to arrange for the provision of a replacement Temporary Worker.

6.11 Managing Agent shall require the Panel Vendors to ensure that all Temporary Workers assigned to the Council are eligible to work legally in the Relevant Jurisdiction. In the event that a Temporary Worker is found to be ineligible to work in a Relevant Jurisdiction, then upon Managing Agent becoming aware of such ineligibility, Managing Agent shall require the Panel Vendor to cause the immediate termination of such Temporary Worker and shall require the Panel Vendors to arrange for the provision of a replacement Temporary Worker within a reasonable time thereafter.

7. Performance Monitoring

7.1 The Council shall have the right to inspect and examine the Managing Agent's performance to ensure that it is complying with its obligations under this Contract at all times. As part of this process it shall use the Key Performance Indicators set out in Schedule 2. Such monitoring and reviews shall not release the Managing Agent from any of its obligations under the Contract or affect the Council's statutory rights.

The Managing Agent shall at all times perform the Contract with due care, skill and diligence with the utmost good faith.
The Managing Agent shall have in place appropriate and robust monitoring arrangements to identify any actual or possible breaches of its or the Supply Agencies' obligations under this Contract.

7.4 If required by the Authorised Officer the Managing Agent shall put in place a system approved by the Authorised Officer to monitor the Managing Agent's performance of the Service. Such system shall be reviewed at regular intervals and any necessary revisions made with the agreement of the Authorised Officer.

7.5 Any such system in place may include:

day to day liaison with the Instructing Officers; and/or
regular meetings between the Account Manager and the Authorised Officer
ensuring that Documents be kept in respect of the provision of the Service to the extent:

required by the Contract; and/or
reasonably required by the Council to ensure that any costs charged to the Council in respect of the Service are properly recorded, identified and auditable; and/or
otherwise reasonably required to ensure the Service is provided in a proper and timely fashion

and ensuring that all such Documents are available for inspection by the Council (or any person nominated by it) at all times on giving prior notice thereof.

8. Management Information

The Managing Agent shall supply to the Authorised Officer reports containing the information required in accordance with the Specification (and/or such other information as the Authorised Officer may reasonably require) at the intervals and frequency specified by the Authorised Officer from time to time.
The Authorised Officer shall act reasonably in specifying the information to be supplied in and the frequency and format of the reports required under this condition 8 and the managing Agent shall comply with the provisions of this condition at no additional cost to the Council.

9 Terms of Payment

9.1 The Managing Agent aims to procure services from Panel Vendors at better rates than at commencement of this Contract. These existing rates will be identified during implementation for all current Panel Vendors and details supplied to the Council to enable detailed benefit tracking on a monthly basis.

The Managing Agent shall negotiate on behalf of the Council, a reduction in the margins charged by new and existing Panel Vendors. The Managing Agent will not negotiate hourly rates of pay for job categories. The savings generated through the reduction in these margins (the Gain Share) will be apportioned between the Council and the Managing Agent from the effective start date of this Contract and payment made to the Council by way of the Refund.

9.2 At the point of making an order, the Council will see both hourly rates of pay and the overall charge rate to be made to the Council. This charge rate will be the true cost to the Council for each Assignment.

9.3 The Managing Agent shall provide monthly management reports showing for each service area, the tracked share of the negotiated reduction in Panel Vendor margins for each job category.

9.4.1 Where a permanent vacancy has been advertised and a competitive recruitment process undertaken in line with the Council's Equality and Diversity policy resulting in the appointment of the Temporary Worker to the post within the Relevant Period, no "temp to perm" fees are payable under this clause.

9.4.2 The Council shall pay to the Managing Agent the "temp to perm" commission set out below where, following the termination of an Assignment, a Temporary Worker is engaged by the Council within the Relevant Period. The percentage payable shall be calculated on the gross annual salary of the Temporary Worker during the period of the Assignment.

Period of Assignment	% Commission payable
1 - 2 weeks	15
3 - 4 weeks	12.5
5 - 6 weeks	10
7 - 8 weeks	7.5
9 - 10 weeks	5
11 - 12 weeks	2.5
14 weeks	No commission payable
Onwards	No commission payable

9.5 Pay is a variable element of charge and is dictated by external market forces. The Managing Agent will from time to time review standard market pay rates and make recommendations to the Council to adjust to local market conditions. The final decision on such rates shall be made by the Council.

10 Invoicing arrangements

The Managing Agent shall comply with in preparing and submitting invoices to the Council. The Managing Agent shall, on a weekly basis, submit a single consolidated invoice in the form agreed between the Authorised Officer and the Account Manager in respect of all orders placed by the Council during that week. The bill will be submitted by e mail, backed by an Excel spread sheet in the proscribed form giving the following details:

Temporary Worker's full name
Week ending date in which Assignment carried out
The number of hours worked by a Temporary Worker
The hourly charge rate for each type of work listed
Total payment claimed net of VAT
Panel Vendor

Appropriate Council coding (cost centre, object account, subsidiary and business unit)
Post Number (where available)

The Managing Agent will provide the Council with access to the “Bill and Charge” report within Comensura.net. This will provide the Council with complete visibility over the amount the Panel Vendor bill the Managing Agent against the amount the Managing Agent charge the Council. This will allow the Council to establish the total “gross” direct cost saving.

10.3 Managing Agent's invoices raised in accordance with the provisions of clause 10.1 shall be payable by the Council within 14 days of receipt unless an invoice is disputed by the Council.

10.4 If the Managing Agent's invoice is partially or wholly disputed, the Council shall notify the Managing Agent in writing within 14 days of receipt giving details of the amount of the sum of money disputed, the reason for disputing the invoice and the Council's alternative calculation for the sum due.

10.5 Subject to deductions ascertained in accordance with terms stipulated elsewhere in this Contract and any other deductions authorised by these Conditions the Council shall pay any undisputed portion of the invoice within 14 days of receipt.

10.6 The Council shall be permitted to withhold payment on disputed sums pending further investigation, discussion and negotiation. If as a result of further investigation, discussion and negotiation it is agreed between the parties that part or the whole of the disputed sums are due to the Managing Agent then the Council shall pay the agreed sum to the Managing Agent within 14 days of such agreement.

10.7 If the dispute is not resolved by this means within a further 14 days then the Managing Agent shall be entitled to invoke the dispute resolution procedure in accordance with the provisions of clause 33.

10.8 Following the resolution of the dispute in accordance with the provisions of clause 33, the Council shall pay any resulting revised invoice within 14 days. In the event of the Council failing to pay the revised invoice within the said period of 14 days the Managing Agent shall be entitled to charge the Council interest at a rate equivalent to 2% above the HSBC Base Lending Rate commencing 14 days after receipt of the revised invoice. Save as provided for in this clause the Council shall not be liable to pay interest on any sums outstanding under this Contract.

10.9 If at any time during the Contract Period an overpayment is made to the Managing Agent resulting in a sum due to the Council such sum shall be deducted by the Council from the Managing Agent's next invoice or if this is not possible and the overpayment is on or shortly before termination of the Contract a sum equal to the overpayment shall become immediately payable by the Managing Agent to the Council. Such sum may be deducted from any sums due to or to become due to the Managing Agent under the Contract or any other contract shall be recoverable from the Managing Agent by the Council as a debt.

10.10 The Managing Agent shall be paid such Value Added Tax as may be properly chargeable by it in connection with the supply of the Service provided the Managing Agent has issued the necessary VAT invoice in respect thereof.

10.11 VAT must be shown as a distinct and separate entry on each Invoice.

11. Security

The Managing Agent shall comply with the Council's security requirements which may from time to time be introduced by the Council at any Premises.

12. Health and Safety

12.1 The Managing Agent shall at all times comply with the requirements of the Health and Safety at Work etc. Act 1974 and any other Acts, Regulations or Orders pertaining to Health and Safety at Work pertaining to the health, safety and welfare of the Managing Agent's Personnel and any others who may be affected by the performance of the Service.

Whilst on the Premises the Managing Agent shall require the Managing Agent's Personnel and Temporary Workers to comply with the Council's Statement of Health and Safety at Work Policy and appropriate Codes of Practice, a copy of which will be made available on request.

12.3 When making a booking, the Council shall give the Managing Agent; (i) the intended duties of the Temporary Worker; (ii) any special skills which it requires the Temporary Worker to have including any experience, training, qualification or any authorisations from a professional body which are required by law; (iii) any risks to health or safety know to the Council and any steps that may have been taken to prevent or control such risks; and (iv) any health and safety information which the Council wishes the Managing Agent to pass onto the Temporary Worker.

13. Failure to deliver the Service

If the Managing Agent fails to deliver the Service or any part thereof, the Council reserves the right to request another supplier to provide the Service or any part not performed or may choose to perform the Service itself.

13.2 All reasonable costs incurred by the Council pursuant to 13.1 above including time spent by its Instructing Officers in providing the Service or making alternative arrangements for the provision of the Service or any part thereof may be deducted by the Council from any sums due or to become due to the Managing Agent or may be recovered by the Council from the Managing Agent as a debt.

The rights of the Council under this Condition 13 are in addition and without prejudice to any other rights or remedies, which it may possess.

13.4 The Council shall provide, on behalf of the Managing Agent, sufficient supervision, direction and control over the Temporary Worker throughout the term of the Assignment to ensure a reasonable standard of performance by the Temporary Worker and that it will discharge responsibility for the health and safety of each Temporary Worker and all other statutory and common law duties from the start of any Assignment as if that Temporary Worker was an employee of the Council.

14. Termination

This Contract shall terminate: -

14.1 At the end of the Contract Period.

14.2 In any of the circumstances of and/or on the occurrence of any of the events specified below by the Council giving notice in writing to the Managing Agent having immediate effect (or such longer period as the Council may specify in the notice):-

14.2.1 if the Managing Agent or any person employed by the Managing Agent or acting on the Managing Agent's behalf (whether with or without the knowledge of the Managing Agent) in relation to the Contract or any other contract with the Council shall have:-

offered or given, or agreed to give to any person any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or having done or forborne to do any action or for showing or forbearing to show favour or disfavour to any persons in relation to the obtaining of the Contract/contracts; and/or
committed any offence under the Prevention of Corruption Acts 1889 to 1916 or shall have given any fee or reward to any member or Officer of the Council the receipt of which is an offence under section 117(2) of the Local Government Act 1972;

14.2.2 if there have been persistent breaches of the Contract as evidenced by the issue of Default Notices; (see Clause 14.4.1)

14.2.3. failure by the Managing Agent to comply with the terms of a Final Default Notice;

14.2.4 if the Council discovers that any material misrepresentation was contained in the information provided by the Managing Agent in its tender to SCC and the presentation made to the Council prior to the Council entering into this Contract, the Council having relied on such information in entering into the Contract;

14.2.5 if the Managing Agent goes into either compulsory or voluntary liquidation (save for the purpose of reconstruction or amalgamation) or if an administrator or administrative receiver is appointed in respect of the whole or any part of its assets or if the Managing Agent makes assignment for the benefit of or composition with its creditors generally or threatens to do any of these things (or any judgement is made against the Managing Agent or any similar occurrence in any jurisdiction affects the Managing Agent);

14.2.6 if the Managing Agent has possession taken by or on behalf of the holders of any debentures secured by floating charge on any property comprised in or subject to the floating charge;

14.2.7 if the Managing Agent engages in any conduct which the Authorised Officer, acting reasonably, deems prejudicial to the Council;

in the event of a change in the size, composition, structure, location financial circumstances, ownership or status of the Managing Agent or any group of companies of which the Managing Agent is part which in the Authorised Officer's reasonable opinion could seriously affect the ability of the Managing Agent to discharge its obligations under this Contract to the Contract Standard;

PROVIDED ALWAYS that termination under this Condition 14.2 shall not prejudice or affect any rights of action or remedy which shall have accrued to the Council under the Contract prior to the termination of the Contract.

By either party giving to the other not less than 90 days' prior notice in writing and the party giving notice shall not be liable for any loss suffered by the other party as a result of such termination.

14.4.1 Without prejudice to the provisions of Condition 14.2 or any other Condition of this Contract in the event of a breach by the Managing Agent of any of the provisions of this Contract, the Authorised Officer may serve Default Notices as provided below:-

a “Default Notice”

to be served where in the reasonable opinion of the Authorised Officer the Managing Agent is in breach of any provisions of the Contract but which are not so serious as to require a Final Default Notice.

(ii) a “Final Default Notice”

to be served where in the reasonable opinion of the Authorised Officer the breach is of such a nature as to constitute a major default or where the Managing Agent has failed to comply with any Default Notice(s),

Any Default or Final Notice served shall specify the nature of the breach, the action required to remedy the breach or prevent a reoccurrence and the time period for compliance.

Where the above notices are served:-

the Managing Agent shall be liable for reasonable and demonstrable costs incurred by any breach of contract by the Managing Agent.

14.5 The Managing Agent shall give notice in writing to the Authorised Officer on or before the happening of the events referred to in 14.2.5, 14.2.6 and 14.2.8 above.

15. Consequence of Termination

If the Contract is terminated as provided in Condition 14.2 and is not reinstated:

15.1.1 the Council shall:-

(i) cease to be under any obligation to make further payments until the costs loss and damage resulting from or arising out of the termination of the Contract shall have been calculated and provided such calculation shows a sum or sums due to the Managing Agent;

(ii) be entitled to employ and pay other persons to supply the Service or any part thereof and to use all Documents for the purpose thereof;

(iii) be entitled in respect of any loss or damage to the Council resulting from or arising out of the termination of the Contract to deduct the same from the sum or sums which would but for clause 15.1.1(i) have been due from the Council to the Managing Agent under the Contract or any other Contract or be entitled to recover the same from the Managing Agent as a debt. Such loss or damage shall include the reasonable cost to the Council of time spent by its officers in terminating the Contract and in making alternative arrangements for a supply of the Service.

when the total cost loss and damage suffered by the Council resulting from or arising out of the termination of the Contract has been calculated and after taking into account any deduction made or to be made by it, the Council, subject to Condition 17, shall pay to the Managing Agent any balance shown as due to the Managing Agent; and

15.1.2. the Managing Agent shall:

(i) be deemed to be in breach of this Contract;

forthwith cease to perform any of the Service;
be liable forthwith to compensate the Council for any loss or damage it has sustained in consequence of any antecedent breaches of contract by the Managing Agent;
fully and promptly indemnify and compensate the Council in respect of the cost of not performing such Service as would in the opinion of the Authorised Officer have been performed by the Managing Agent during the remainder of the Contract Period, to the extent that such cost exceeds such sums as would have been lawfully payable to the Managing Agent for performing such Service (such costs to include all costs of closing out the Contract, re-tendering and entering into a new contract with a replacement provider or engaging Council staff to provide the Service).
the Council agrees it shall use all reasonable endeavours to mitigate any costs, loss or damages sustained and shall, on request, disclose to the Managing Agent details of the manner in which these have been accrued
for the avoidance of doubt, where the Managing Agent disputes any such sum, the dispute shall be subject to the dispute resolution process as set out in clause 33.

In the event of the Contract being terminated for whatever reason, the Managing Agent shall:

provide any and all information and records (in whatever format) relating to the Council and the Service as the Council, acting reasonably, may require within such timescales as the Authorised Officer may specify; and
work with, and render all assistance to any incoming party taking over the provision of the Service to ensure that the incoming party has all documentation and other information necessary to enable it to provide the Service efficiently.

15.3 The rights of the Council under this clause are in addition to and without prejudice to any other rights or remedies the Council may have whether against the Managing Agent directly or pursuant to any guarantee indemnity or bond.

16. Other consequences of termination

Upon expiry or termination of the Contract for whatever reason the Managing Agent shall immediately deliver up to the Council any information and property belonging to the Council which may be in its possession or under its control (if any) together with the Documents. Subject to Condition 25 the Council shall have the right to use the Documents for any proper purpose in connection with the Service previously provided by the Managing Agent.

17. Recovery of sums due to the Council

Whenever under the Contract any sum of money shall be recoverable from or payable by the Managing Agent to the Council the same may be deducted from or set off against any sum then due or which at any time thereafter may become due to the Managing Agent under this Contract or any other Contract with the Council.

18. Waiver

No delay neglect or forbearance on the part of either party in enforcing against the other party any term or clause of the Contract shall either be or be deemed to be a waiver or in any way prejudice any right of that party under the Contract or affect the validity of the Contract.

19. Agency

19.1 The Managing Agent is not and shall under no circumstances hold itself out as being the servant or agent of the Council for any purpose other than those expressly conferred by this Contract.

19.2 The Managing Agent is not and shall under no circumstances hold itself out as being authorised to enter into any contract on behalf of the Council or in any other way to bind the Council to the performance, variation, release or discharge of any obligation.

19.3 The Managing Agents Personnel and the Temporary Workers are not and shall not hold themselves out as being, nor shall they be held out by the Managing Agent as being, servants or agents of the Council for any purposes other than those expressly conferred by this Contract.

20. Assignment and sub-contracting

20.1 The Council shall be entitled to assign the benefit of the Contract or any part thereof and shall give written notice of any assignment to the Managing Agent.

20.2 The Managing Agent shall not assign or subcontract the Contract or any part thereof or the benefit or advantage of the Contract or any part thereof without the explicit authorisation of the Council (such authorisation to be at the Council's sole discretion).

21. Insurance and indemnity

21.1 The Managing Agent shall indemnify and keep indemnified the Council against any liability in respect of the death, or injury to any person, or loss of, or damage to any property arising as a direct result of any negligent act or omission of the Managing Agent and shall maintain, or cause to be maintained, Public Liability Insurance in the sum of not less than five million pounds (£5,000,000) in respect of any one claim, or series of claims arising out of one event and Employers Liability Insurance of two million pounds (£2,000,000).

The Managing Agent shall in its contracts with Supply Agencies require that the Supply Agencies maintain the following insurances and thereafter check that such insurances are maintained by auditing the Supply Agencies: Public Liability to the sum of five million (£5,000,000), Professional Indemnity Insurance to the sum of two million (£2,000,000) and Employer's Liability to the sum of two million (£2,000,000).

21.3 The Managing Agent shall be liable to the Council for any loss or damage to the Council's property, which is caused by the wilful and negligent acts of the Managing Agent or its Personnel (which for the purposes of this sub condition 21.3 shall not include the Supply Agencies).

21.4 The Managing Agent shall, prior to the commencement of this Contract and thereafter at such other times as the Council may require, supply the Council with copies of all insurance policies, cover notes, premium receipts and other documents necessary to demonstrate compliance with this condition 21.

The Managing Agent shall immediately notify the Council and its insurers of any happening or event (which the Managing Agent is aware) which may give rise to a claim, demand, proceeding, damage, cost or charge which is the subject of the indemnity under clause 21.1 and arising out of this Contract. The Managing Agent shall indemnify the Council against any loss whatever which may be occasioned to the Council by the Managing Agents failure to give such notification.
It shall be a condition of this Contract that the Managing Agent will use reasonable endeavours to deal speedily and efficiently with all insurance claims submitted to it arising out of or in connection with the Contract, either by its own staff or by referring such claims to its insurers.
The Council shall indemnify and keep indemnified the Managing Agent against any liability in respect of death or injury to any person, or loss of, or damage to any property of the Managing Agent which arises as a direct result of any negligent act or omission of the Council, its staff or agents (other than the Managing Agent, its staff and agents).

Extent of Liability

Any claim save for liability for death and personal injury resulting from the negligence of Managing Agent (whether in contract, tort or otherwise) for a breach of its obligations under this Agreement shall not exceed up to the sum amount of five million pounds (£5,000,000) per annum in respect of claims for which the Managing Agent is required to maintain Public Liability insurance cover and two million pounds (£2,000,000) per annum in respect of those claims for which the Managing Agent is required to maintain Professional Indemnity insurance. No party shall in any circumstances, other than fraud or wilful default by that party, be liable for any claim, whether arising in common law, tort (which shall include actions brought in negligence and/or nuisance), statute or otherwise, for loss of profit or revenue, consequential, economic, special or indirect loss.

23. Confidentiality

23.1 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 other person without the prior written consent of the other party, except to such persons and to such extent as may be necessary for the performance of the Contract or except where disclosure is otherwise expressly permitted by the provisions of this Contract.

23.2 The Managing Agent shall take all necessary precautions to ensure that all Confidential Information obtained from the Council under or in connection with the Contract:-

is given only to such of it's employees and professional advisors or consultants engaged to advise it in connection with the Contract as is strictly necessary for the performance of the Contract and only to the extent necessary for the proper performance of the Contract;
is treated as confidential and not disclosed (without prior approval) or used by any of its employees or such professional advisors or consultants otherwise than for the purposes of the Contract.

23.3 The Managing Agent shall not use any Confidential Information it receives from the Council otherwise than for the proper purposes of the Contract.

23.4 The provisions of Conditions 23.1 to 23.3 shall not apply to any Confidential Information received by one party from the other:-

(a) which is or becomes public knowledge (otherwise than by breach of this Condition);

(b) which was in the possession of the receiving party, without restriction as to its disclosure, before receiving it from the disclosing party;

(c) which is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

(d) is independently developed without access to the Confidential Information; or

(e) which must be disclosed pursuant to a statutory, legal or parliamentary obligation placed upon the Party making the disclosure, including any requirements for disclosure under the FOIA, or the Environmental Information Regulations pursuant to Condition 24 (Freedom of Information).

23.5 Nothing in this Condition shall prevent the Council:-

(a) disclosing any Confidential Information for the purpose of the examination and certification of the Managing Agents accounts.

23.6 Nothing in this Condition shall prevent either party from using any techniques, ideas or know-how gained during the performance of the Contract in the course of its normal business, to the extent that this does not result in a disclosure of Confidential Information or an infringement of intellectual property rights

23.7 The Managing Agent shall not at any time make use for its own purposes or disclose to any person (except as may be required by law) any information contained in any material provided to it by the Council pursuant to the Contract or prepared by the Managing Agent pursuant to the Contract all of which information shall be deemed to be confidential.

23.8 The Managing Agent shall ensure compliance of the Managing Agent's Personnel, Supply Agencies and Temporary Workers with the provisions of this condition.

24. Freedom of Information

24.1 The Managing Agent recognises that the Council is subject to legal duties, which may require the release of Information and that the Council may be under an obligation to do so.

24.2 Notwithstanding anything in this Contract to the contrary and where applicable, subject to Regulation 43 of the Public Contracts Regulations 2006, where the Council receives a request for Information it shall be entitled to disclose all information and documentation (in whatever form) as is necessary to respond to that request save that where the Council believes the Information is Exempt Information, the Council shall consult the Managing Agent as soon as reasonably practicable after receipt of such a request and shall not:

confirm or deny that the Information is held by the Council; or
disclose the Information,

to the extent that in the Council's opinion (having taken into account the views of the Managing Agent) that exemption is or may be applicable to the Information in accordance with the FOIA.

Where the Council consults with the Managing Agent as provided above, the Managing Agent shall make its written representations as to whether it believes the Information is Exempt Information to the Council within 10 days of receiving the Council's request for consultation.

24.4 Where, in accordance with the Managing Agent's wishes, the Council seeks to withhold Information under FOIA, the Managing Agent shall indemnify the Council for any costs that the Council incurs, including but not limited to external legal costs, in seeking to maintain the withholding of Information or lodging an appeal against a decision of the Information Commissioner.

24.5 In any event the Council shall not be liable for any loss, damage, harm or other detriment however caused arising from the disclosure of Information.

24.6 In addition the Managing Agent will at all times assist the Council to enable it to comply fully with its obligations under FOIA. In particular it acknowledges that the Council is entitled to any and all information relating to or arising from the performance of the Contract. Where the Council receives a request for Information and requires the Managing Agent's assistance in obtaining such Information, the Managing Agent will respond to any request for assistance at its own cost and promptly and in any event within 10 days of receiving the Council's request (or other reasonable time period specified by the Council when making the request).

24.7 On receipt of a request for Information, the Council shall be under no obligation to consult the Managing Agent other than as provided above.

25. Data Protection

The Managing Agent shall:

(i) Comply with the data protection principles under the Data Protection Act 1998 and any equivalent or associated legislation (“the Act”) and the Council's Data Protection policies (in so far as they are relevant) in respect of the Processing of the Personal Data;

(ii) Only undertake Processing of Personal Data reasonably required to perform the Service and, in any event, strictly in accordance with the Council's instructions from time to time;

(iii) Not disclose Personal Data to any person other than to employees to whom disclosure is necessary for the performance of the Service;

(iv) Have in place, and undertake to maintain during the term of the Contract, appropriate technical and organisational measures against the accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure of Personal Data, and adequate security programmes and processes to ensure that unauthorised persons do not have access to the Personal Data or to any equipment used to process the Personal Data;

(v) Take reasonable steps to ensure that any of its staff who have access to Personal Data are honest, reliable and competent;

(vi) Ensure the Managing Agent's Personnel comply with this Condition 25;

Ensure that any disclosure to a sub-contractor is subject to a binding legal obligation upon the sub-contractor to comply with the obligations set out in this condition. For the avoidance of doubt, any such sub-contract shall not relieve the Managing Agent of its obligation to comply fully with this condition and the Managing Agent shall remain fully responsible and liable for ensuring full compliance with this condition in all respects;

(viii) Require all Supply Agencies to comply fully with the provisions of the Data Protection Act 1998 and take all reasonable steps to monitor compliance with this requirement

25.2 The Personal Data:

Is the property of the Council;
Shall be returned immediately to the Council upon termination or expiration of this Contract; and
Shall not be copied and/or retained in any form by the Managing Agent upon expiration or termination of this Contract, except as required by law or under this Contract.

25.3 The Managing Agent will indemnify and keep indemnified the Council against all claims, demands, actions, proceedings, damages, charges, costs and expenses (including legal costs and expenses) which arise directly as a result of:

(a) a breach by the Managing Agent or the Managing Agent's Personnel of this Condition; or

(b) a claim that the Council is in breach of the Council's obligations under the Act as a result of any action by the Managing Agent or the Managing Agent's Personnel.

26. Patents and Copyright

The Managing Agent shall not in connection with the performance of the Service, use, manufacture, supply or deliver any process, article, matter or thing, the use, manufacture, supply or delivery of which would be an infringement of any intellectual property rights and shall indemnify the Council against the consequences of any breach of its obligations under this Condition.

27. Intellectual Property Rights

Any and all intellectual property rights developed by Temporary Workers whilst engaged in providing services to the Council under this Contract or arising from the provision of the Service by the Managing Agent shall belong to the Council and the Managing Agent agrees that it shall execute or cause to be executed all deeds, documents and acts required to vest such intellectual property rights in the Council. The Managing Agent shall also ensure that this is a condition of any Contract it has between itself and the Supply Agencies

28. Statutory and Other Regulations

28.1 The Managing Agent shall in all matters arising in the performance of the Contract comply with all Acts of Parliament and with all Orders Regulations Statutory Instruments and Bye-laws made with statutory authority by Government Departments or by local or other authorities that shall be applicable to the Contract

28.2 Without prejudice to the generality of the forgoing, the Managing Agent shall to the extent it must comply in all respects with the Conduct of Employment Agencies and Business Regulations 2003 and shall require all Supply Agencies to do the same

28.3 The Managing Agent shall indemnify and keep indemnified the Council against the consequence of any breach of its obligations under this Condition 28.

29. Miscellaneous

29.1 A reference to any Act of Parliament or to any Order Regulation Statutory Instrument By-law or the like shall include a reference to any amendment or re-enactment thereof.

29.2 Words importing the masculine gender include the feminine gender, words in the singular include the plural and vice versa and words importing individuals shall be treated as importing corporations.

29.3 References to the word `including' are to be construed without limitation.

29.4 All communications whether oral or written between the Managing Agent and the Council or between the Managing Agent and any third part on behalf of the Council shall be conducted in the English language.

29.5 “a person” includes a firm, corporation and unincorporated associations, government, state or agency of state, any association or partnership of joint venture (whether or not having a separate legal personality);

29.6 “holding company” and “subsidiary” shall have the meaning ascribed to them by Section 736 of the Companies Act 1985 as amended from time to time;

29.7 Documents being made available by the Managing Agent for inspection or similar purpose shall include an obligation (where such Documents are not in the possession, custody or power of the Managing Agent or its Personnel and are necessary to enable the audit or inspection to verify a relevant cost or matter) to use all reasonable endeavours to procure that they are made available.

30. Force Majeure

Neither party shall be liable for failure to perform its obligations under the Contract if such failure is a result of circumstances beyond its reasonable control provided, however, that any delay by a sub-contractor or an employer of the party so delaying shall not relieve that party from liability for delay.

31. Notices

31.1 Any demand, notice, or other communication required to be given hereunder shall be sufficiently served if served personally on the addressee, or if sent by prepaid first class recorded delivery post, by electronic email or facsimile transmission (subject to evidence of receipt) to the other party at the address stated in the Contract Schedule (or as may be notified from time to time by one party to the other giving notice in writing.

If so sent they shall, subject to proof to the contrary, be deemed to have been received by the addressee on the second business day after the date of posting or on the day of successful transmission (unless after 17.00 hours in which case on the next working day), as the case may be.

32. Severance

If any provision of the Contract shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other provision all of which shall remain in full force and effect.

33. Resolution of Disputes

All disputes or differences which shall at any time hereafter arise between the Council and the Managing Agent in respect of the construction or effect of the Contract or the rights duties and liabilities of the parties hereunder or any matter or event connected with or arising out of this Contract (a `Relevant Event') shall, in the first instance, sought to be rectified between the Authorised Officer and the Account Manager.

33.2 If the dispute cannot be resolved by the Authorised Officer and the Account Manager it shall be escalated to the Head of Human Resources for the Council and the Managing Director for the Managing Agent.

33.3 If the dispute still remains unresolved for longer than four (4) weeks after the Relevant Event either party may give notice to the other requiring the matter to be referred to such independent third party (the `Third Party') as the Council and Managing Agent shall jointly nominate.

33.4 If the Council and the Managing Agent shall fail to nominate a Third Party within four (4) weeks of notice being given under Condition 33.3 above then the Third Party shall be nominated at the request of either the Council or the Managing Agent by the President for the time being of the Centre for Effective Dispute Resolution (C.E.D.R.) of Princes House, 95 Gresham Street, London EC2V 7NA.

33.5 The Third Party (whether appointed under Condition 33.3 or 33.4 above) shall act as an expert and not as an arbitrator whose decision (including as to costs) shall (except in the case of manifest error) be final and binding upon the Council and the Managing Agent.

34. Contracts (Rights of Third Parties) Act 1999

The Council and Managing Agent agree that the provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract and accordingly the parties hereto do not intend that any third party shall have any rights in respect of the Contract by virtue of that Act.

35. Change Management Process

This process (the “Change Management Process”) shall be utilised by the parties to manage any change to the Agreement, Services or charge rates which either party deems necessary following a service review by the parties.
Either party may request a change by submitting to the other party in writing a proposal which shall include full details in writing of the justification for the change proposed, any evidence supporting the requirement and its probable impact on the operational and commercial aspects of the Services and Agreement including the charge rates (the “Change Proposal”).

35.3 The operational account managers of the parties shall meet within twenty-eight (28) days of the submission of the change proposal to discuss the Change Proposal. The party reviewing the Change Proposal submitted shall either accept or reject the change proposal in full or in part.

If the party submitting the Change Proposal is dissatisfied with the decision of the operational account manager, the Change Proposal shall be escalated to the Managing Director of the Managing Agent and the Corporate Procurement Team for the Council for a final decision.

35.5 Nothing in this Clause 35 shall prevent either party from invoking the Dispute Resolution Process set out in Clause 33.

36. Evidence In Connection With Legal Proceedings

36.1 If requested to do so by the Authorised Officer, the Managing Agent shall provide to the Authorised Officer any relevant information in connection with any legal inquiry or court proceedings in which the Council may become involved or any relevant disciplinary hearing internal to the Council and shall give evidence in such inquiries or proceedings or hearings, arising out of the provision of the Service. The Managing Agent immediately upon becoming aware of the same shall notify the Authorised Officer of any accident, damage or breach of any statutory provision relating in any way to the provision of or connection with the Service.

36.2 The Managing Agent immediately upon becoming aware of the same shall notify the Authorised Officer of any accident, damage or breach of any statutory provision relating in any way to the provision of or in connection with the Service.

37. Information on Termination

37.1 During the last twelve months of the Contract Period or at any time after notice of termination has been given in accordance with Condition 14 and if required to do so by the Authorised Officer, the Managing Agent shall within the time scales specified by the Authorised Officer provide to the Council any and all information which the Authorised Officer (acting reasonably) deems necessary to:

(i) prepare the necessary documentation in respect of any subsequent tendering or re-tendering of all or any part of the Service;

(ii) make the necessary arrangements in respect of any possible transfer of staff, records and equipment.

37.2 The information required shall be sufficient to enable the Council to meet its legal obligations and to obtain the best value for money reasonably obtainable. For the avoidance of doubt, this obligation shall extend in the case of Condition 37.1(i) above to all the information and records compiled and maintained in accordance with the Contract and in the case of 37.1(ii) above to all workforce and pension information relating to each person employed in the provision of the Service who is or potentially may be subject to transfer to another Managing Agent at the date of Contract expiry, as the Council may reasonably require, including but not limited to the following:-

number of staff
age and sex of staff
length of service and period of notice for the purposes of resignation and termination
rate of pay
number of hours worked per week
full details of Conditions of Employment and benefits including pensions applicable to the staff concerned.
any relevant collective agreement
other relevant information

Such information provided pursuant to this Condition 37 shall be at no cost to the Council.

37.3 Failure to comply with the obligations of this Condition 37 shall entitle the Council, at its discretion and not acting unreasonably or vexatiously, to withhold or withdraw an invitation to tender for the Service from the Managing Agent on the reletting of a contract for the Service.

38. Ombudsman and other Investigations

38.1 In the event of any request for information from or an investigation by the Commissioner for Local Administration (Ombudsman) ("the Commissioner"), the Monitoring Officer or the Chief Financial Officer of the Council on any aspect of work arising out of or in connection with the Service, the Managing Agent shall co-operate fully in such investigation at its own expense and provide any information requested by or on behalf of such persons or the Authorised Officer, attend meetings with representatives of the Commissioner and/or the Council, and allow them to examine all relevant documents in the Managing Agent's possession or control.

38.2 Further in the event of the Council being required to make any payments as a result of an investigation by the Commissioner due in whole or in part to the actions of the Managing Agent, then the Managing Agent shall repay to the Council the amount of such payment (or such part as the Authorised Officer at his/her discretion shall deem reasonable) forthwith upon demand.

39. Equality and Diversity

39.1 The Managing Agent shall not unlawfully discriminate within the meaning and scope of the provisions of the Race Relations Act 1976 as amended by the Race Relations Amendment Act 2000, the Sex Discrimination Acts 1975 and 1986 and the Disability Discrimination Act 1995 (and such replacement or future legislation relating to unlawful discrimination) and shall take all reasonable steps to ensure that all servants, employees or agents of the Managing Agent and employed in the execution of the Contract do not unlawfully discriminate.

39.2 The Managing Agent shall ensure that all Supply Agencies are required to comply with this Condition together with all Temporary Workers supplied by them in the performance of the Service.

39.3 This condition shall not in any way relieve the Managing Agent of its general obligations to comply with any legislative requirements as provided in Condition 28.

39.4 The Managing Agent shall support the Council in observing the requirements of Section 71 of the Race Relations Act 1976 relating to assistance in the promotion of good race relations and with all other rules and codes of practice of other relevant professional bodies.

39.5 If any court or tribunal, or Commission should make any finding of unlawful discrimination against the Managing Agent, then the Managing Agent shall immediately notify the Authorised Officer and take all necessary steps to prevent reoccurrence of such unlawful discrimination. The Council may require the Managing Agent to provide full details of the steps taken to prevent such recurrence.

40. Guarantees

40.1 If the Managing Agent is a subsidiary company within the meaning of Section 736 of the Companies Act 1985 it shall, if requested by the Council, provide a Guarantee in the form specified by the Council from the Managing Agent's holding company or companies (as defined by the said Section 736) to secure the due performance by the Managing Agent of its obligations to the Council. Such guarantee, if required shall be provided within fourteen days of receipt of a written request for the same by the Council's Director of Legal Services or other representative.

40.2 In the event that the guarantee referred to above is not received as required the Council reserves the right at its discretion to withhold payments to the Managing Agent, to postpone the Commencement Date and/or to cancel the award of the Contract. If any of these rights are exercised by the Council unless the Managing Agent has shown justified reasons for not providing the guarantee or any of the documents required to be provided under this Contract by the due date the Council reserves the right to charge the Managing Agent with all reasonable costs arising to the Council in connection with any such rearrangement.

41. Civil Contingencies Act 2004 (“CCA”)

The Managing Agent acknowledges and accepts that the Council has obligations under the CCA and agrees to:

(i) put in place such reasonable measures as may be necessary to ensure it is able to continue to undertake its obligations under the Contract in the event of an Emergency (as defined in the CCA) and notify the Council of such measures:

(ii) comply with any reasonable instruction of the Council in the performance of the Service during and in respect of an Emergency, the Council undertaking to remunerate and indemnify the Managing Agent against any direct claims, costs or losses directly arising from the Managing Agent's compliance with such instructions.

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