DATED ____________________________________ 2015

BETWEEN

CITY OF YORK COUNCIL

and

PRESENT SOLUTIONS ASSOCIATES LTD

______________________________________________________________

AGREEMENT FOR THE PROVISION OF PROFESSIONAL SERVICES

______________________________________________________________

City of York CouncilWest OfficesStation Rise

YorkYO1 6GA

CONTENTS

CLAUSE

1. Interpretation.....................................................................................................12. Term of Engagement........................................................................................53. Duties...............................................................................................................54. Fees.................................................................................................................. 75. Expenses..........................................................................................................86. Other Activities..................................................................................................87. Confidential Information....................................................................................98. Freedom of Information........................................................................109. Data Protection...............................................................................................1110. Intellectual Property........................................................................................1311. Insurance and Liability....................................................................................1512. Termination.....................................................................................................1513. Obligations on Termination.............................................................................1714. Status.............................................................................................................1715. Records and Audits…………………………………………………................1816. Warranty………………………………………………………………................1917. Advertising……………………………………………………………................1918. Prevention of Bribery..................................... ………………………........1919. Discrimination..................................................................................... 2220. Dispute Resolution……………………………………………………..............2221. Best Value…………………………………................................................ 2322. Costs……………………………………………………………………..............2323. Notices............................................................................................................2324. Entire Agreement ...........................................................................................2425. Variation.........................................................................................................2426. Counterparts...................................................................................................2427. Third party Rights...........................................................................................2428. Governing Law and Jurisdiction......................................................................25

SCHEDULE

Schedule 1 ServicesSchedule 2 Payment ScheduleSchedule 3 Contract Management

THIS AGREEMENT is made the day of 2015

BETWEEN

(1) CITY OF YORK COUNCIL of West Offices, Station Rise, York, YO1 6QA (the Council); and

(2) Present Solutions Associates Ltd incorporated and registered in England and Wales with company number 9702305 whose registered office is at 9 Rawcliffe Lane, York, YO30 6NP (Professional Service Company),

(each a “Party” and together the “Parties”).

WHEREAS

(A) The Council wishes, in view of the Professional Service Company’s relevant skills, knowledge and experience to appoint the Professional Service Company to provide the Services (as defined below) to the Council.

(B) The Professional Service Company has agreed to provide the Services to the Council on and subject to the terms and conditions of this Agreement.

IT IS AGREED as follows

1. INTERPRETATION

1.1 In this Agreement unless the context otherwise requires the following provisions shall have the meanings given to them below:

Bribery Act means the Bribery Act 2010 and any subordinate legislation made under that Act from time to time together with any guidance or codes of practice issued by the relevant government department concerning the legislation.

Best Value Duty means the duty imposed by section 3 of the Local Government Act 1999 as amended, and under which the Council is under a statutory duty to continuously improve the way its functions are exercised, having regard to a combination of economy, efficiency and effectiveness and to any applicable guidance issued from time to time

Capacity means as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity;

Commencement Date means 1st January 2015;

Council Representative means the person designated as such in Schedule 3 or as may be notified in writing by the Council to the Professional Service Company from time to time;Council Property means all data, documents, books, manuals, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the activities, interests or affairs of the Council (including but not limited to

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the Services) or its customers and business contacts, and any equipment, keys, hardware or software provided for the Professional Service Company or the Professional Team’s use by the Council during the Engagement, and any data or documents (including copies) produced, maintained or stored by the Professional Service Company or the Professional Team on the Council or the Professional Service Company's computer systems or other electronic equipment during the Engagement;

Commercially Sensitive Information means information of a commercially sensitive nature relating to the Professional Service Company, its intellectual property rights or its business, which the Professional Service Company has identified to the Council and indicated that, if disclosed by the Council, would cause the Professional Service Provider significant commercial disadvantage or material financial loss;

Confidential Information means information, data and material of any nature and in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of the Council for the time being confidential to the Council and trade secrets including, without limitation, technical data and know-how relating to the Council or any of its suppliers, customers, agents, distributors, shareholders, management or business contacts, including in particular (but not limited to) any information, data and material which either Party may receive or obtain in connection with this Agreement and which relates to the activities, interests, obligations and duties of the Council and/or in relation to the Services:

(a) which comprises Personal Data or Sensitive Personal Data;

(b) the release of which is likely to prejudice the interests of the Council or the Professional Service Company respectively; or

(c) which is a trade secret; or

(d) that the Professional Service Company creates, develops, receives or obtains in connection with this Engagement, whether or not such information (if in anything other than oral form) is marked confidential;

Data Controller shall have the same meaning as set out in the Data Protection Act;

Data Subject shall have the same meaning as set out in the Data Protection Act;

Data Processor shall have the same meaning as set out in the Data Protection Act;

Data Protection Act means the Data Protection Act 1998;

Data Protection Legislation: the Data Protection Act, the EU Data Protection Directive 95/46/EC, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner;

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Engagement means the engagement of the Professional Service Company by the Council on the terms of this Agreement;

Environmental Information Regulations means the Environmental Information Regulations 2004 together with any guidance and/or codes of practice issued by the Information Commissioner or relevant governmental department in relation to such regulations;

Expiry Dates means 31st December 2015.

Fees means the fees payable by the Council to the Professional Service Company in consideration of the due performance of he Services as specified in clause 4;

FOIA means the Freedom of Information Act 2000, and any subordinate legislation made under the Act from time to time, together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation;

Information has the meaning given under section 84 of FOIA;

Insurance Policies means professional indemnity insurance cover of at least £1 million, and public liability insurance cover of at least £5million.

Intellectual Property Rights means patents, patent application, know-how, rights to inventions, copyright and related rights, moral rights, trade marks, trade names and domain names, service marks, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;

Month means calendar month;

Monthly Highlight Report means the report in the form determined by the Council’s Verto project management system;

Personal Data means personal data as defined by the Data Protection Act;Pre-Contractual Statement means any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the Engagement other than as expressly set out in this Agreement or any documents referred to in it;

Professional Service Company Personnel: all employees, agents, consultants and contractors of the Professional Service Company (including but not limited to the Professional Team) or of any sub-contractor;

Professional Team means Roy Wallington and/or any other individual nominated by the Professional Service Company as agreed by the Council;

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Prohibited Act means the following:

(a) to directly or indirectly offer, promise or give any person working for or engaged by the Council a financial or other advantage to:

(i) induce that person to perform improperly a relevant function or activity; or

(ii) reward that person for improper performance of a relevant function or activity;

(b) to directly or indirectly request, agree to receive or accept any financial or other advantage as an inducement or a reward for improper performance of a relevant function or activity in connection with this Agreement;

(c) committing any offence:

(i) under the Bribery Act;

(ii) under legislation creating offences concerning fraudulent acts;

(iii) at common law concerning fraudulent acts relating to this Agreement or any other contract with the Council; or

(iv) defrauding, attempting to defraud or conspiring to defraud the Council;

Request for Information means a request for information or an apparent request under the Code of Practice on Access to Government Information, FOIA or the Environmental Information Regulations;

Sensitive Personal Data has the meaning given in the Data Protection Act;

Services means the services described in Schedule 1 or as amended from time to time in accordance with clause 3.5;

Substitute means a substitute for the Professional Team appointed under the terms of clause 3.4;

Termination Date the date of termination of this Agreement, however arising;

VAT means value added tax as provided for in the Value Added Tax Act 1994 (as amended) and any tax replacing the same or of a similar nature;

Working Day means any day save for Saturday, Sunday and a public holiday in England;

Works means all calculations, data, records, reports, documents, papers, drawings, designs, ideas, inventions, discoveries, improvements, developments, innovations, transparencies, photos, graphics, logos, typographical arrangements, software, programs, specifications and all other materials in whatever form, including but not limited to hard copy and electronic form, prepared or developed by the Professional Service Company or the Professional Team in connection with the provision of the Services.

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1.2 The headings in this Agreement are inserted for convenience only and shall not affect its construction.

1.3 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.5 Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.

1.6 The Schedules to this Agreement form part of (and are incorporated into) this Agreement.

2. TERM OF ENGAGEMENT

2.1 The Council shall engage the Professional Service Company and the Professional Service Company shall make available to the Council the Professional Team to provide the Services on the terms of this Agreement.

2.2 The Engagement shall be deemed to have commenced on the Commencement Date and shall, unless otherwise terminated in accordance with the terms of this Agreement, expire upon 31st of December 2015.

2.3 The Council shall have the option to extend the duration of this Agreement by a further period of up to three months (such period to be determined by the Council). If the Council intends to exercise this option it must give notice to such effect to the Professional Service Company no later than two (2) month prior to the Expiry Date.

3. DUTIES

3.1 During the Engagement the Professional Service Company shall, and where appropriate shall procure that the Professional Team shall:

(a) provide the Services with all due care, skill and ability, obey all lawful directions of the Council relating to its performance of the Services and use its or his best endeavours to promote the interests of the Council;

(b) promptly give to the Council all such information and reports as it may reasonably require in connection with matters relating to the provision of the Services and, where applicable, the interests and activities of the Council;

(c) ensure that the Services and its performance thereof comply with all the requirements of any Act of Parliament, statutory instrument or order or any other regulation having the force of law or bye-law and all regulatory requirements and policies of the Council relevant to the Professional Service Company's business and/or the Council’s activities, duties and obligations from time to time in force which are or may become applicable to the Services (including but not limited to the Council’s health and safety procedures); and

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(d) keep and maintain detailed records of all things done in relation to the provision of the Services (to be provided to the Council upon request) and shall provide the Council on the last Working Day of each calendar month with a Monthly Highlight Report of its work on the Services; and

(f) ensure that whilst on Council premises, the Professional Service Company and/or the Professional Team shall:

(i) carry the identity pass issued by the Council at all times;

(ii) comply with any requirements and instructions (including but not limited to health and safety and security issues) that may be given by an authorised representative of the Council;

(iii) comply with any request by an authorised representative of the Council to leave the Council’s premises immediately; and

(iv) notify the Council as soon as he becomes aware of any health and safety hazards or issues which arise in relation to the Services.

3.2 The Professional Service Company and shall procure that the Professional Team shall comply with all pre-commencement employment checks as required by law or guidance and as instructed by the Council. The Professional Service Company shall, where required, provide evidence of compliance with such checks within seven (7) Working Days of the date of this Agreement.

3.3 If the Professional Team is unable to provide the Services due to illness or injury the Professional Service Company shall advise the Council of that fact as soon as reasonably practicable. For the avoidance of doubt, no Fees shall be payable in accordance with clause 4 in respect of any period during which the Services are not provided.

3.4 The Professional Service Company may, with the prior written approval of the Council and subject to the following proviso, appoint a suitably qualified and skilled Substitute to perform the Services instead of the Professional Team, provided that the Substitute shall be required to enter into direct undertakings with the Council, including with regard to confidentiality. If the Council accepts the Substitute, the Professional Service Company shall continue to invoice the Council in accordance with clause 4 and shall be responsible for the remuneration of the Substitute.

3.5 Any request by either Party to amend the scope or execution of the Services shall be submitted in writing to the Council Representative. If the Parties agree that any services are additional to those covered in Schedule 1 the Parties will use their reasonable endeavours to agree a reasonable additional fee for those services, provided always, that no additional fee will be payable unless such additional services and proposed fee have been agreed in writing by the Council Representative.

3.6 The Professional Service Company shall use reasonable endeavours to ensure that the Professional Team is available at all times on reasonable notice to provide such assistance or information as the Council may require.

3.7 Unless specifically authorised by the Council in writing, the Professional Service Company shall not, and shall procure that the Professional Team shall not:

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(a) have any authority to incur any expenditure in the name of or for the account of the Council; or

(b) hold itself out as having authority to bind the Council.

3.8 The Professional Service Company shall, and shall procure that the Professional Team shall, comply with all reasonable standards of safety and comply with the Council's health and safety procedures from time to time in force at the premises where the Services are provided and report to the Council any unsafe working conditions or practices.

3.9 The Professional Service Company shall, and shall procure that the Professional Team shall, comply with all relevant Council policies including but not limited to the electronic communications policy, health and safety policy and equal opportunities policy.

3.10 The Professional Service Company may use a third party to perform any administrative, clerical or secretarial functions which are reasonably incidental to the provision of the Services provided that:

(a) the Council will not be liable to bear the cost of such functions; and

(b) at the Council's request the third party shall be required to enter into direct undertakings with the Council, including with regard to confidentiality.

3.11 In accordance with the Council’s policies, in delivering the Services the Professional Service Company shall procure that the Professional Team shall not exceed 48 hours work per week.

4. FEES

4.1 The Council shall pay the Professional Service Company the fees set out in Schedule 2. These fees are inclusive of all costs, disbursements but exclusive of VAT. In each quarter during the Engagement the Professional Service Company shall submit to the Council an invoice which gives details of the services performed against each stage of services which the Professional Team or any Substitute has undertaken during the period, the Services provided and the amount of the fee payable (plus VAT, if applicable) for the Services during that period.

4.2 In consideration of the provision of the Services during the Engagement, the Council shall pay each invoice submitted by the Professional Service Company in accordance with clause 4.1 within 30 (thirty) days of receipt.

4.3 The Council shall be entitled to deduct from the Fees (and any other sums) due to the Professional Service Company any sums that the Professional Service Company may owe to the Council at any time.

4.4 Payment in full or in part of the Fees claimed under this clause 4 or any expenses claimed under clause 5 shall be without prejudice to any claims or rights of the Council against the Professional Service Company or the Professional Team in respect of the provision of the Services.

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5. EXPENSES

5.1 The Professional Service Company or the Professional Team shall be reimbursed for the cost of travel to locations outside of the city boundaries and incurred in the cause of the Engagement and will be afforded car parking facilities via the Council’s scratch card system when required.

6. OTHER ACTIVITIES

6.1 Nothing in this Agreement shall prevent the Professional Service Company or the Professional Team from being engaged, concerned or having any financial interest in any Capacity in any other business, trade, profession or occupation during the Engagement provided that:

(a) such activity does not cause a breach of any of the Professional Service Company's obligations under this Agreement; and

(b) the Professional Service Company shall not, and shall procure that the Professional Team shall not, engage in any such activity if it relates to another local authority without the prior written consent of the Council Representative.

7. CONFIDENTIAL INFORMATION

7.1 The Professional Service Company acknowledges that in the course of the Engagement it and the Professional Team will have access to Confidential Information. The Professional Service Company has therefore agreed to accept the restrictions in this clause 7.

7.2 The Professional Service Company shall, and shall procure that the Professional Team shall, take all necessary precautions to ensure that all Confidential Information obtained from the Council under or in connection with this Agreement is treated as confidential and not disclosed (without prior approval from the Council) subject to clause 7.4 and otherwise than to the extent necessary for the purpose and performance of the Agreement.

7.3 Where it is considered necessary in the opinion of the Council, the Professional Service Company and the Professional Team shall sign a confidentiality undertaking in a form approved by the Council before commencing work in connection with this Agreement.

7.4 The Professional Service Company shall not, and shall procure that the Professional Team shall not, (except in the proper course of its or his duties) either during the Engagement or at any time after the Termination Date, use or disclose to any third party (and shall use its best endeavours to prevent the publication or disclosure of) any Confidential Information, without the prior written consent of the Council. This restriction does not apply to:

(a) any use or disclosure of Confidential Information authorised by the Council or required by law; or

(b) any Confidential Information which is already in, or comes into, the public domain otherwise than through the Professional Service Company's or the Professional

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Team unauthorised disclosure or breach of this Agreement or other acts or omissions by the Professional Service Company or the Professional Team.

7.5 At any stage during the Engagement, the Professional Service Company will promptly on request return all and any Council Property and/or Confidential Information in its or the Professional Team possession to the Council.

7.6 This clause 7 shall remain in force without limit in time in respect of Confidential Information which comprises Personal Data. Save as aforesaid and unless otherwise expressly set out in the Agreement, this clause 7 shall remain in force for a period of three (3) years after the termination or expiry of this Agreement.

7.7 In the event that the Professional Service Company fails to comply with this clause 7, the Council reserves the right to terminate this Agreement by notice in writing with immediate effect.

8 FREEDOM OF INFORMATION

8.1 The Professional Service Company acknowledges that the Council is subject to the requirements of FOIA and the Environmental Information Regulations and shall assist and co-operate with the Council (at the Professional Service Company's expense) to enable the Council to comply with these Information disclosure requirements.

8.2 The Professional Service Company shall and shall procure that the Professional Team shall:

(a) transfer the Request for Information to the Council as soon as practicable after receipt and in any event within three (3) days of receiving a Request for Information;

(b) provide the Council with a copy of all Information in its possession or power in the form that the Council requires within seven days (or such other period as the Council may specify) of the Council requesting that Information; and

(c) provide all necessary assistance as reasonably requested by the Council to enable the Council to respond to a Request for Information within the time for compliance set out in section 10 of FOIA or regulation 5 of the Environmental Information Regulations.

8.3 The Council shall be responsible for determining at its absolute discretion whether Commercially Sensitive Information and/or any other Information:

(a) is exempt from disclosure in accordance with the provisions of FOIA or the Environmental Information Regulations;

(b) is to be disclosed in response to a Request for Information.

8.4 In no event shall the Professional Service Company or the Professional Team respond directly to a Request for Information unless expressly authorised to do so by the Council.

8.5 The Professional Service Company acknowledges that the Council may, acting in accordance with the Secretary of State for Constitutional Affairs' Code of Practice on the discharge of public authorities' functions under Part 1 of FOIA (issued under

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section 45 of FOIA, November 2004), be obliged under FOIA or the Environmental Information Regulations to disclose Information:

(a) without consulting with the Professional Service Company or the Professional Team, or

(b) following consultation with the Professional Service Company and/or the Professional Team and having taken its views into account.

provided always that where clause 8.5(b) applies the Council shall, in accordance with any recommendations of the Code, take reasonable steps, where appropriate, to give the Professional Service Company advanced notice, or failing that, to draw the disclosure to the Professional Service Company's attention after any such disclosure.

8.6 The Professional Service Company shall ensure that all Information produced in the course of this Agreement or relating to this Agreement is retained for disclosure and shall permit the Council to inspect such records as requested from time to time.

8.7 The Professional Service Company acknowledges that any lists or schedules provided by it outlining Confidential Information are of indicative value only and that the Council may nevertheless be obliged to disclose Confidential Information in accordance with clause 8.5.

9. DATA PROTECTION

9.1 With respect to the Parties' rights and obligations under this Agreement, the Parties agree that the Council is the Data Controller and that the Professional Service Company is the Data Processor.

9.2 The Professional Service Company shall procure that the Professional Team consents to the Council holding and processing data relating to him for legal, personnel, administrative and management purposes and in particular to the processing of any Sensitive Personal Data relating to the Professional Team including, as appropriate:

(a) information about the Professional Team physical or mental health or condition in order to monitor sickness absence;

(b) the Professional Team racial or ethnic origin or religious or similar beliefs in order to monitor compliance with equal opportunities legislation;

(c) information relating to any criminal proceedings in which the Professional Team has been involved, for insurance purposes and in order to comply with legal requirements and obligations to third parties.

9.3 The Professional Service Company shall, and shall procure that the Professional Service Company Personnel involved in the provision of this Agreement shall, comply with any notification requirements under the Data Protection Legislation and both parties will duly observe all their obligations under the Data Protection Legislation, which arise in connection with this Agreement.

9.4 Notwithstanding the general obligation in clause 9.3, where the Professional Service Company is processing Personal Data as a Data Processor for the Council, the Professional Service Company shall ensure that it has in place appropriate technical

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and contractual measures to ensure the security of the Personal Data (and to guard against unauthorised or unlawful processing of the Personal Data and against accidental loss or destruction of, or damage to, the Personal Data), as required under the Seventh Data Protection Principle in Schedule 1 to the Data Protection Act; and

(a) provide the Council with such information as the Council may reasonably require to satisfy itself that the Professional Service Company is complying with its obligations under the Data Protection Legislation;

(b) only process such Personal Data as is necessary to perform its obligations under this Agreement, and only in accordance with any instruction given by the Council under this Agreement;

(c) promptly notify the Council of any breach of the security measures required to be put in place pursuant to clause 9.3; and

(d) ensure it does not knowingly or negligently do or omit to do anything which places the Council in breach of the Council's obligations under the Data Protection Legislation.

9.5 The Professional Service Company shall, and shall procure that the Professional Team shall,

(a) notify the Council (within two (2) Working Days), if he receives:

(i) a request from a Data Subject to have access to that person's Personal Data; or

(ii) a complaint or request relating to the Councils obligations under the Data Protection Legislation;

(b) provide the Council with full co-operation and assistance in relation to any complaint or request made, including by:

(i) providing the Council with full details of the complaint or request;

(ii) complying with a data access request within the relevant timescales set out in the Data Protection Legislation and in accordance with the Council's instructions;

(iii) providing the Council with any Personal Data he holds in relation to a Data Subject (within the timescales required by the Council); and

(iv) providing the council with any information requested by the Council

9.6 The Professional Service Company shall comply at all times with the Data Protection Legislation and shall not perform its obligations under this Agreement in such a way as to cause the Council to breach any of its applicable obligations under the Data Protection Legislation.

9.7 The Professional Service Company acknowledges and agrees that subject always to the Data Protection Act, the Council reserves the right from time to time to:

(a) intercept, for the purposes of monitoring and/or recording, any communication made through any system capable of transmitting communications including

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but not limited to telephone, electronic mail, facsimile, voicemail or internet facility provided by the Council; and

(b) use any information obtained as a result of any intercepted communication for the purposes permitted by the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000.

9.8 The Professional Service Company will indemnify the Council and its successors and assigns from any and all claims, proceedings and all liability, loss, costs and expenses arising from or in connection with any breach by the Professional Service Company or the Professional Service Company Personnel of the obligations set out in this clause 9.

9.9 The provisions of this clause 9 shall apply during the continuance of this Agreement and indefinitely after its expiry or termination.

10. INTELLECTUAL PROPERTY

10.1 The Professional Service Company warrants to the Council that it has obtained from the Professional Team a written and valid assignment of all existing and future Intellectual Property Rights in the Works and of all materials embodying such rights and a written irrevocable waiver of all the Professional Team’s statutory moral rights in the Works, to the fullest extent permissible by law, and that the Professional Team has agreed to hold on trust for the Professional Service Company any such rights in which the legal title has not passed (or will not pass) to the Professional Service Company. The Professional Service Company agrees to provide to the Council a copy of this assignment on or before the date of this Agreement.

10.2 The Professional Service Company hereby assigns to the Council all existing and future Intellectual Property Rights in the Works and all materials embodying such rights to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under this Agreement, the Professional Service Company holds legal title in such rights and Works on trust for the Council.

10.3 The Professional Service Company undertakes:

(a) to keep confidential details of all Works;

(b) whenever requested to do so by the Council and in any event on the termination of the Engagement, promptly to deliver to the Council all correspondence, documents, papers and records on all media (and all copies or abstracts of them), recording or relating to any part of the Works and the process of their creation which are in its or the Professional Team’s possession, custody or power;

(c) not to register nor attempt to register any of the Intellectual Property Rights in the Works, unless requested to do so by the Council; and

(d) to do all acts necessary to confirm that absolute title in all Intellectual Property Rights in the Works has passed, or will pass, to the Council,

and confirms that the Professional Team has given written undertakings in the same terms to the Professional Service Company.

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10.4 The Professional Service Company warrants to the Council that:

(a) it has not given and will not give permission to any third party to use any of the Works, nor any of the Intellectual Property Rights in the Works;

(b) it is unaware of any use by any third party of any of the Works or Intellectual Property Rights in the Works; and

(c) the use of the Works or the Intellectual Property Rights in the Works by the Council will not infringe the rights of any third party,

and confirms that the Professional Team has given written undertakings in the same terms to the Professional Service Company.

10.5 The Professional Service Company agrees to indemnify the Council and keep it indemnified at all times against all or any costs, claims, damages or expenses incurred by the Council, or for which the Council may become liable, with respect to any intellectual property infringement claim or other claim relating to the Works supplied by the Professional Service Company to the Council during the course of providing the Services. The Professional Service Company shall maintain adequate liability insurance coverage and ensure that the Council's interest is noted on the policy, and shall supply a copy of the policy to the Council on request. The Council may at its option satisfy this indemnity (in whole or in part) by way of deduction from any payments due to the Professional Service Company.

10.6 The Professional Service Company acknowledges that, except as provided by law, no further fees, remuneration or compensation other than those provided for in this Agreement are due or may become due to the Professional Service Company in respect of the performance of its obligations under this clause 10.

10.7 The Professional Service Company undertakes to execute all documents, make all applications, give all assistance and do all acts and things, at the expense of the Council and at any time either during or after the Engagement, as may, in the opinion of the Council, be necessary or desirable to vest the Intellectual Property Rights in, and to register them in, the name of the Council and to defend the Council against claims that works embodying Intellectual Property Rights infringe third party rights, and otherwise to protect and maintain the Intellectual Property Rights in the Works. The Professional Service Provider confirms that the Professional Team has given written undertakings in the same terms to the Professional Service Company.

10.8 The Professional Service Company irrevocably appoints the Council to be its attorney in its name and on its behalf to execute documents, use the Professional Service Company’s name and do all things which are necessary or desirable for the Council to obtain for itself or its nominee the benefit of this clause 9. A certificate in writing, signed by any director of the Council, that any instrument or act falls within the authority conferred by this Agreement shall be conclusive evidence such is the case so far as any third party is concerned.

11. INSURANCE AND LIABILITY

11.1 The Professional Service Company shall have liability for and shall indemnify the Council for any loss, liability, costs (including reasonable legal costs), damages or

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expenses arising from any breach by the Professional Service Company or the Professional Team or any Substitute engaged by it of the terms of this Agreement including any negligent or reckless act, omission or default in the provision of the Services and shall accordingly maintain in force during the Engagement full and comprehensive Insurance Policies.

11.2 The Professional Services Provider shall not be responsible for any decision or action

taken by the Council as a result of the Services provided.

11.3 The Professional Service Company shall ensure that the Insurance Policies are taken out with reputable insurers acceptable to the Council and that the level of cover and other terms of insurance are acceptable to and agreed by the Council.

11.4 The Professional Service Company shall on request supply to the Council copies of such Insurance Policies and evidence that the relevant premiums have been paid.

11.5 The Professional Service Company shall notify the insurers of the Council’s interest and shall cause the interest to be noted on the Insurance Policies.

11.6 The Professional Service Company shall comply (and shall procure that the Professional Team complies) with all terms and conditions of the Insurance Policies at all times. If cover under the Insurance Policies shall lapse or not be renewed or be changed in any material way or if the Professional Service Company is aware of any reason why the cover under the Insurance Policies may lapse or not be renewed or be changed in any material way, the Professional Service Company shall notify the Council without delay.

12. TERMINATION

12.1 Either Party may voluntarily terminate this Agreement by giving the other Party not less than one month’s written notice at any time after the Commencement Date.

12.2 Notwithstanding the provisions of clause 2.2 and 12,1, the Council may terminate the Engagement with immediate effect without notice and without any liability to make any further payment to the Professional Service Company (other than in respect of amounts accrued prior to the Termination Date) if at any time:

(a) the Professional Service Company or the Professional Team commits any gross misconduct affecting the interests, activities, duties or obligations of the Council;

(b) the Professional Service Company or the Professional Team commits any serious or repeated breach or non-observance of any of the provisions of this Agreement or refuses or neglects to comply with any reasonable and lawful directions of the Council;

(c) the Professional Team is convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed);

(d) the Professional Service Company or the Professional Team is in the reasonable opinion of the Council negligent or incompetent in the performance of the Services;

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(e) the Professional Service Company is declared bankrupt or makes any arrangement with or for the benefit of his creditors or has a county court administration order made against him under the County Court Act 1984;

(f) the Professional Service Company makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an administration or winding-up order is made or an administrator or receiver is appointed in relation to the Professional Service Company;

(g) the Professional Team fails to provide the Services for an aggregate period of 20 consecutive days period; or

(h) the Professional Service Company or the Professional Team commits any fraud or dishonesty or acts in any manner which in the opinion of the Council brings or is likely to bring the Professional Team, Professional Service Company or the Council into disrepute or is materially adverse to the interests of the Council ;

(i) the Professional Service Company or the Professional Team commits any breach of the Council’s policies and procedures; or

(j) the Professional Service Company or the Professional Team commits any offence under the Bribery Act 2010.

12.3 The rights of the Council under clause 12.2 are without prejudice to any other rights or remedies that it might have at law to terminate the Engagement or to accept any breach of this Agreement on the part of the Professional Service Company as having brought the Agreement to an end. Any delay by the Council in exercising its rights to terminate shall not constitute a waiver of these rights.

12.4 Without prejudice to clause 12.3, neither Party shall have a claim against the other by virtue of the early termination of this Agreement pursuant to this clause 12.

13. OBLIGATIONS ON TERMINATION

13.1 On the Termination Date the Professional Service Company shall, and shall procure that the Professional Team shall:

(a) immediately deliver to the Council all Council Property which is in its or his possession or under its or his control;

(b) irretrievably delete or destroy any information or data relating to the Council stored on any magnetic or optical disk or memory and all matter derived from such sources which is in its or his possession or under its or his control outside the premises of the Council. For the avoidance of doubt, the contact details of business contacts made during the Engagement are regarded as Confidential Information and as such, must be deleted from personal social or professional networking accounts; and

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(c) provide a signed statement to the Council that it or he has complied fully with its or his obligations under this clause 13.

14. STATUS

14.1 The relationship of the Professional Service Company (and the Professional Team) to the Council will be that of independent contractor and nothing in this Agreement shall render it (nor the Professional Team) an employee, worker, agent or partner of the Council and the Professional Service Company shall not hold itself out as such and shall procure that the Professional Team shall not hold himself out as such.

14.2 This Agreement constitutes a contract for the provision of services and not a contract of employment

14.3 The Professional Service Company warrants that it is not nor will it prior to the cessation of this Agreement, become a managed service company, within the meaning of section 61B, Income Tax (Earnings and Pensions) Act 2003.

15. RECORDS AND AUDIT

15.1 Without prejudice to the obligation to provide reports contained in clause 3.1(e), the Professional Service Company shall keep and maintain to the satisfaction of the Council until six (6) years after the Agreement has expired or otherwise terminated, or as long a period as may be agreed between the Parties, full and accurate records of the Agreement including:

(a) the Services provided under it (including but not limited to records of the work performed and hours worked),

(b) costs incurred and payments made by the Council; and

(c) all expenditure reimbursed by the Council

by the Professional Service Company in connection with the Services.

15.2 The Professional Service Company shall on request afford the Council or its representatives such access to and the right to make copies of those records as may be required by the Council in connection with this Agreement.

16. WARRANTY

16.1 The Professional Service Company warrants and represents that:

(a) it has full capacity and authority to enter into this Agreement;

(b) at all times during the term of this Agreement the Professional Service Company shall be an independent contractor and nothing in this Agreement shall create a partnership or joint venture or relationship of employer and employee or principal and agent between the Council and the Professional Service Company;

(c) the Services will be delivered in accordance with the law and good industry practice and by suitably skilled and trained Professional Service Company Personnel;

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(d) any software, electronic or magnetic media, hardware or computer system used or produced by the Professional Service Company in connection with the Agreement shall not cause any damage, loss or erosion to or interfere adversely or in any way with the compilation, content or structure of any data, database, software or other electronic or magnetic media, hardware or computer system used by, for or on behalf of the Council on which it is used or with which it interfaces or comes into contact.

17. ADVERTISING

The Professional Service Company shall not without the prior written consent of the Council Representative advertise or announce that it is carrying out work for the Council in advance of the Council giving such consent.

18. PREVENTION OF BRIBERY

18.1 The Professional Service Company:

(a) shall not, and shall procure that all Professional Service Company Personnel shall not, in connection with this Agreement commit a Prohibited Act;

(b) shall, and shall procure that all Professional Service Company Personnel shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act (Relevant Requirements);

(c) warrants, represents and undertakes that it is not aware of any financial or other advantage being given to any person working for or engaged by the Council, or that an agreement has been reached to that effect, in connection with the execution of this Agreement, excluding any arrangement of which full details have been disclosed in writing to the Council before execution of this Agreement; and

(d) shall promptly report to the Council any request or demand for any undue financial or other advantage of any kind received by the Professional Service Company or the Professional Team in connection with the performance of this Agreement.

18.2 The Professional Service Company shall:

(a) if requested, provide the Council with any reasonable assistance, at the Council's reasonable cost, to enable the Council to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with the Bribery Act;

(b) ensure that all persons associated with the Professional Service Company (including but not limited to the Professional Team or other persons who are performing services in connection with this Agreement comply with this clause 19; and

(c) within 30 Working Days of the Commencement Date, certify to the Council in writing (such certification to be signed by an officer of the Professional

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Service Company) compliance with this clause 18 by the Professional Service Company and all persons associated with it, including the Professional Team, and all other persons for whom the Professional Service Company is responsible under clause 18.2(b). The Professional Service Company shall provide such supporting evidence of compliance as the Council may reasonably request.

18.3 The Professional Service Company shall have and shall maintain throughout the term of this Agreement an anti-bribery policy and procedure (which shall be disclosed to the Council) including but not limited to adequate procedures under the Bribery Act to:

(a) prevent any Professional Service Company Personnel from committing a Prohibited Act; and

(b) to ensure compliance with the Relevant Requirements,

and shall enforce them where appropriate.

18.4 For the purpose of this clause 18:

(a) the meaning of adequate procedures and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act and section 8 of that Act respectively; and

(b) a person associated with the Professional Service Company includes but is not limited to any Substitute for the Professional Team.

18.5 If any breach of clause 18.1 is suspected or known, the Professional Service Company must notify the Council immediately.

18.6 If the Professional Service Company notifies the Council that it suspects or knows that there may be a breach of clause 18.1, the Professional Service Company must respond promptly to the Council's enquiries, co-operate with any investigation, and allow the Council to audit books, records and any other relevant documentation. This obligation shall continue for one (1) year following the expiry or termination of this Agreement.

18.7 If the Professional Service Company or Professional Service Company Personnel (in all cases whether or not acting with the Professional Service Company's knowledge) breaches clause 18.1 or 18.2, the Council may:

(a) terminate this Agreement by written notice with immediate effect (in accordance with clause 12) and recover from the Professional Service Company the amount of any Loss suffered by the Council resulting from the termination; and

(b) recover in full from the Professional Service Company any other Loss sustained by the Council in consequence of any breach of those clauses.

18.8 Any notice of termination under clause 18.7 must specify:

(a) the nature of the Prohibited Act;

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(b) the identity of the party whom the Council believes has committed the Prohibited Act; and

(c) the date on which this Agreement will terminate.

18.9 Despite clause 20 (Dispute Resolution), any dispute relating to:

(a) the interpretation of this clause 18; or

(b) the amount or value of any gift, consideration or commission,

shall be determined by the Council and its decision shall be final and conclusive.

18.10 Any termination under clause 18.7 will be without prejudice to any right or remedy which has already accrued or subsequently accrues to the Council.

19. DISCRIMINATION

19.1 The Professional Service Company shall not and shall procure that the Professional Team shall not, unlawfully discriminate within the meaning and scope of any law (including but not limited to the Equality Act 2010), enactment, order, or regulation relating to discrimination (whether in age, race, gender, religion, disability, sexual orientation or otherwise) in employment.

19.2 The Professional Service Company shall take all reasonable steps to secure the observance of clause 20.1 by all servants, employees or agents of the Professional Service Company (including but not limited to the Professional Team) and all suppliers and sub-contractors employed in performance of this Agreement.

20. DISPUTE RESOLUTION

20.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute) then the Parties shall follow the procedure set out in this clause:

(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Council Representative and Professional Team shall attempt in good faith to resolve the Dispute;

(b) if the Council Representative and Professional Team are for any reason unable to resolve the Dispute within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to the Assistant Director for Transformation for the Council and Director of the Professional Service Company who shall attempt in good faith to resolve it; and

(c) if the Assistant Director for Transformation for the Council and Director of the Professional Service Company are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a Party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting

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mediation. A copy of the ADR notice should be sent to CEDR Solve. The mediation will start not later than 15 days after the date of the ADR notice and unless agreed otherwise by the Parties, each Party shall bear its own costs and the charges and expenses of CEDR and the mediator shall be borne equally by the Parties.

20.2 If the Parties fail to reach agreement in the mediation within twenty (20) Working Days of the mediator being appointed or such longer period as the Parties may agree in writing, then either Party may refer the Dispute to the courts of England in accordance with clause 28.

20.3 Nothing shall prevent either Party from commencing court proceedings relating to any Dispute at any time if either Party requires either:

(a) an order (whether interim or final) restraining the other Party from doing any act or compelling the other Party to do any act; or

(b) protection for a right which would otherwise become statute-barred.

21. BEST VALUE

21.1 The Professional Service Company acknowledges that the Council is a best value authority for the purposes of the Local Government Act 1999 and the Professional Service Company must to the extent reasonably practicable co-operate with and assist the Council in fulfilling its Best Value Duty.

21.2 In addition to the Professional Service Company’s obligations under clause 21.1, where reasonably requested by the Council, the Professional Service Company shall (at its own cost) participate in any relevant Best Value Duty reviews and/or benchmarking exercises (including without limitation providing information for such purposes) conducted by the Council and shall assist the Council with the preparation of any Best Value performance plans.

22. COSTS

Each of the Parties shall pay and be responsible for any costs or expense incurred by it in connection with the negotiation and entry into this Agreement.

23. NOTICES

23.1 Any notice given under this Agreement shall be in writing and signed by or on behalf of the Party giving it and shall be served by delivering it personally, or sending it by pre-paid recorded delivery or registered post to the relevant Party at (in the case of the Council) the address set out in Schedule 3 and (in the case of the Professional Service Company) his last known address. Any such notice shall be deemed to have been received:

(a) if delivered personally, at the time of delivery; or

(b) in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting; and

23.2 In proving such service it shall be sufficient to prove that the envelope containing the notice was addressed to the address of the relevant Party and delivered either to that

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address or into the custody of the postal authorities as a pre-paid recorded delivery or registered post.

24. ENTIRE AGREEMENT

Each Party on behalf of itself acknowledges and agrees with the other Party that:

(a) this Agreement together with any documents referred to in it constitutes the entire agreement and understanding between the Professional Service Company and the Council and supersedes any previous arrangement, understanding or agreement between them relating to the Engagement (which shall be deemed to have been terminated by mutual consent);

(b) in entering into this Agreement neither party has relied on any Pre-Contractual Statement; and

(c) the only rights and remedies available to it or arising out of or in connection with any Pre-Contractual Statement shall be for breach of contract. Nothing in this Agreement shall, however, limit or exclude any liability for fraud.

25. VARIATION

No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the Parties.

26. COUNTERPARTS

This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.

27. THIRD PARTY RIGHTS

27.1 Except as expressly provided elsewhere in this Agreement a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists, or is available, apart from under that Act.

27.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any person that is not a party to this Agreement.

28. GOVERNING LAW AND JURISDICTION

28.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.

28.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

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IN WITNESS WHEREOF this Agreement has been signed for and behalf of the Parties on the date first above written

SIGNED for and behalf of CITY OF YORK COUNCIL by:

Duly Authorised Signatory

……………………………

Name: …………………….. Position …………………………

In the presence of:

Name: …………………….. Position …………………………

SIGNED for and behalf of PRESENT SOLUTIONS SERVICES LTD by:

Director

…………………………….

In the presence of:

Name: …………………….. Position …………………………

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SCHEDULE 1 - THE SERVICES

The Services Provider shall provide leadership, guidance, advice and service in order to deliver programme design, engagement and authorisation for the Older Persons’ Accommodation Programme and summarised by the following:

Date Outcome Contracted value to outcome

July 2015 a) Close old plan and Executive agree new outline plan

b) Business Case for new plan by executive

£50k

October 2015

c) Glen Lodge extension funded and on Capital Programme

£30k

December 2016

d) Consent to close first OPH

£20k

The following services will be performed should the Contract be extended subject to Clause 2.3.

Date Outcome Contracted value to outcome

March 2016 e) Business case for Burnholme agreed by Members (Q3 2015/16) and procurement begun (Q4 2015/16)

£30k

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SCHEDULE 2

PAYMENT SCHEDULE

PART 1 - FEES

The Fees will be staged payments as set out in schedule one payable monthly in accordance with clause 4. For the avoidance of doubt the Fees shall not exceed the total amount of £130,000 (one hundred and thirty thousand pounds) during the term of this Agreement.

PART 2 - PAYMENT TERMS

1.1 Invoices in respect of each and every payment under this Agreement shall be expressed in the lawful currency of the United Kingdom,. Invoices shall be submitted by the Professional Service Provider on the last Working Day of each month during the Engagement addressed to:

Email: invoices@york.gov.uk

1.2 Invoices must not have copies attached and shall include the following:

(a) the project title and invoice reference number;

(b) the Council’s contract/ purchase order number;

(c) expense submissions shall be itemised under headings such as - printing, travel, meals, other items;

(e) VAT registration No (if applicable). VAT shall be shown separately (please note that only valid VAT invoices shall be processed for payment. Any invoice which does not meet VAT criteria shall be rejected);

(f) the date.

1.3 Payment shall be made by the Council to the Professional Service Company, in the lawful currency of the United Kingdom, within thirty (3)0 days from receipt of correct invoices.

1.4 Any queries regarding invoicing and progress of payments should be directed to the Council Representative.

1.5 A copy of all invoices supported by a record of the Professional Service Company and Professional Team’s work performed for the period covered by the invoice shall be submitted to the Council Representative within five (5)Working Days of the end of the relevant period if so requested in order to ensure that the Council Representative is satisfied that the Services covered by the relevant invoice have been performed.

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SCHEDULE 3 - CONTRACT MANAGEMENT

The Council's personnel referred to in the Agreement are:-

Council Representative:

Name: Stewart HallidayAddress: West Offices, Station Rise, York YO1 6QT

Tel: 01904 553402e-mail: stewart.halliday@york.gov.uk

The addresses for notices referred to in Clause 23 are:

Notices to the Council

Name: Stewart HallidayAddress: West Offices, Station Rise, York YO1 6QT

Tel: 01904 553402e-mail: stewart.halliday@york.gov.uk

Notices to the Professional Service Provider

Contact name: Roy WallingtonAddress:

Tel: e-mail:

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