STRATEGIC PARTNERING AGREEMENT
(1) [ ]
and
(2) [ ]
and
(3) [ ]
NHS LIFT SPA V5 09/08/06 14h28
Note: A Lease Plus Agreement is to be used where land is owned by Liftco. Where land is not owned by Liftco, please refer to the Land Retained Agreement.
Contents
Item / Page1 DEFINITIONS, INTERPRETATION AND CONSTRUCTION 2
2 PURPOSE AND CONDUCT OF THE PARTIES 2
3 COMMENCEMENT, DURATION AND EXPIRY OF THIS CONTRACT 5
4 PROJECT DOCUMENTS 7
5 PROPERTY MATTERS 7
6 NEW PROJECTS 9
7 EXISTING SERVICE PROVIDERS 9
8 SERVICES OBLIGATIONS 9
9 EXCLUSIVE NATURE OF THIS AGREEMENT 11
10 PRICE AND PAYMENT FOR THE SERVICES 12
11 ECONOMIC AND MONETARY UNION 16
12 PARTIES REPRESENTATIVES 16
13 VALUE FOR MONEY 17
14 MANAGEMENT OF THE PARTNERING 19
15 WARRANTIES AND INFORMATION 21
16 INDEMNITIES 22
17 INSURANCE 26
18 INTELLECTUAL PROPERTY RIGHTS 29
19 TRANSFER OF EMPLOYMENT 30
20 SITE SECURITY AND PERSONNEL ISSUES 31
21 TRANSITION/HANDOVER ON EXPIRY AND TERMINATION 33
22 PARTICIPANT DEFAULT 33
23 LIFTCO EVENTS OF DEFAULT 35
24 FORCE MAJEURE 40
25 CORRUPT GIFTS AND FRAUDULENT PAYMENTS 40
26 AGENCY AND PARTICIPANT'S STATUTORY AUTHORITY 42
27 ASSIGNMENT AND SUB-CONTRACTING 42
28 PERFORMANCE OF SUBCONTRACTORS 44
29 CONFIDENTIALITY 44
30 FREEDOM OF INFORMATION 47
31 CHANGE IN PARTIES TO THE PARTNERING AGREEMENT 48
32 TERMS OF OCCUPATION OF PREMISES PROVIDED BY LIFTCO 48
33 DISPUTE RESOLUTION 49
34 ORDER OF PRECEDENCE OF DOCUMENTS 49
35 NO RECOURSE TO PUBLIC FUNDS 50
36 NOT USED 50
37 RECORDS AND OPEN BOOK ACCOUNTING 50
38 PERSONAL DATA 51
39 LIABILITY OF THE PARTICIPANTS 52
40 PROHIBITED ACTS 52
41 NOTICES 52
42 AMENDMENTS 53
43 WAIVER 53
44 NO AGENCY 53
45 ENTIRE AGREEMENT 53
46 SEVERABILITY 54
47 COUNTERPARTS 54
48 COSTS AND EXPENSES 54
49 NO PRIVITY 54
50 MITIGATION 54
51 FURTHER ASSURANCE 54
52 GOVERNING LAW AND JURISDICTION 54
53 GENERAL ASSISTANCE AND CO-OPERATION AND PARTICIPANT UNDERTAKINGS 55
Schedule 1 58
Schedule 2 79
Part I 80
Part II 81
Schedule 3 82
SCHEDULE 4 114
Schedule 4 114
Schedule 5 120
Appendix 1 128
Schedule 6 131
Schedule 7 132
Part I 132
SCHEDULE 8 134
Schedule 8 134
Schedule 9 136
Schedule 10 137
Schedule 11 138
Schedule 12 149
Schedule 13 154
Part I 155
Part II 156
Schedule 14 158
Schedule 15 159
Schedule 16 160
Part I 160
Part IA 161
Part II 162
Part III 176
Schedule 17 186
Part 1 186
Appendix 1 199
Part 2 - Method Statement 202
Schedule 18 203
SCHEDULE 19 207
Schedule 19 207
Part 1 207
Part 2 – Relevant Service Transfer Dates 220
Part 3 – First Employee List 221
SCHEDULE 20 222
Schedule 20 222
Schedule 21 228
Part 1 Commercially Sensitive Information 228
Part 2 228
Schedule 22 229
Schedule 23 239
NHS LIFT Standard Form Strategic Partnering Agreement
Version 5
IMPORTANT NOTICE
This is the fifth version of the NHS LIFT standard form of Strategic Partnering Agreement (SPA) the intention of which is to minimise the time and costs of dealing with legal issues relating to LIFT. Partnerships for Health Limited (PfH) and the Department of Health (DH) expects the standard form SPA to be used substantially un-amended. A certain degree of customisation of the standard form SPA will be necessary to reflect the individual features of particular schemes. However project specific justification must be given to any such customisation and must be approved by PfH/DH.
Users of this standard form should be aware of the following points:
1 In compiling this version PfH has considered deviations from the previously published version of standard form agreed on signed deals and the views of public and private sector lawyers. To the extent that a point has not been addressed in a particular way it is because PfH has taken the view that it is not appropriate for inclusion.
Accordingly, there may be points on which the private and public sectors have to "agree to disagree", PfH do not propose to enter into negotiations on these amendments. The majority of points regularly raised by the private sector have been included and it is PfH's hope that all parties will regard this draft as representing a genuine compromise between their respective interests. This will mean that standardisation will have a chance to bed down and this version of this standard form can be seen as the finishing point and not the starting point for negotiations leaving the parties to focus their legal resources on project specific issues and details of the nature of the service to be delivered.
2 The use of this version of the standard SPA is mandatory on all schemes which have yet to reach preferred bidder stage. On those projects which are already at preferred bidder stage it is for both parties to agree whether they wish to use this version of the SPA but if it is used it must be used in its entirety (i.e. all amendments must be incorporated). If the parties elect not to use this version then no amendments to version 5 of the standard SPA can be agreed without the prior consent of PfH/DH.
3 The standard form contract contains a number of footnotes which identify certain key issues which the parties will need to consider when using it. The footnotes have been reviewed and revised as part of this process. However, this is not an exhaustive list, and the standard form SPA will therefore need to be analysed and reviewed in detail to ensure that it is tailored to the requirements of each project and that its terms (and their impact) are clearly understood by the Participant(s). Customisation should not however extend to the parties seeking to change the substance of commercial terms or making unnecessary drafting amendments. All changes to the standard form contract require the prior approval of PfH and, for tranches over £25 million (where the NHS is taking responsibility, i.e. entering into the Lease Plus Agreement), DH.
4 All parties are reminded that LIFT is a true partnership in every sense of the word and the value of further debate over insubstantial issues should be considered in this light. Both PfH and the public sector shall thereby be positively motivated to work with the private sector to avoid or mitigate the impact of any issues that may arise over the lifetime of the project.
5 The standard form SPA is not a replacement for independent, specialist advice and the public sector must ensure that they have taken appropriate legal, financial and technical advice before using this document.
6 The standard form SPA should be used in conjunction with guidance issued by PfH and DH from time to time.
7 This notice and the footnotes should be removed as appropriate before finalisation of the document for execution and/or submission to bidders.
8 Where tranches of schemes have a capital value in excess of £25 million (where the NHS is taking responsibility, i.e. entering into the Lease Plus Agreement), DH approval must be sought. Local Authorities entering into a Lease Plus Agreement should seek the necessary approvals from the relevant Government department.
9 Should you have any questions on the draft you are asked to contact .
THIS AGREEMENT is made on [ ] 20[ ]
BETWEEN
(1) [ ] Limited, a company registered in England (registration number [ ]) whose registered office is at [ ] ("Liftco");
(2) [ [ of [ ]’
(3) [ ] of [ ];
RECITALS
(A) The DoH, pursuant to the Health and Social Care Act 2001, has committed to introducing new solutions to the investment needs of community based care services. PUK and DoH have set up PfH for the purposes of enabling supporting and investing in local health economies, through the setting up of a number of public/private joint venture companies ("Lift JVs") to deliver improved facilities and services. PfH's investments in Lift JVs will help deliver a significant part of the Government's targets in the health sector as set out in the NHS Plan of July 2000.
(B) The current policy of the DoH is to implement such investment projects through Lift JVs, and DoH expects there to be at least three waves of Lift JVs, selected before the end of 2002, involving at least 42 local health economies. Liftco will be one of the [insert which wave of LIFT] wave of Lift JVs.
(C) [The [local authority] have agreed to enter into this Agreement pursuant to their powers contained in [specific reference to statutory provision] in order to enable investment in certain health and social care services provided by them.]
(D) [The [voluntary sector or charitable organisation] has agreed to enter into this Agreement pursuant to their powers contained in [specific reference].]
(E) This Agreement establishes the long term strategic partnering between Liftco and the Participants relating, inter alia, to the delivery of improved health and social care services in the Area.
1 DEFINITIONS, INTERPRETATION AND CONSTRUCTION
1.1 This Agreement shall be interpreted according to the provisions of Schedule 1 (Definitions and Interpretation).
2 PURPOSE AND CONDUCT OF THE PARTIES
Aim
2.1 The parties agree that it is the purpose of this Agreement, the Shareholders' Agreement and the Project Agreements and any amendments adopted by the parties to establish a long term partnering relationship between Liftco and the Participants and to provide appropriate accommodation to the Participants and others involved in providing health and social care in the Area.
2.2 The parties agree that it is a further aim of this Agreement, and any amendments adopted by the parties, to foster the provision of high quality health and social care in the Area by the development and provision of high quality accommodation and services to the health and social care community in the most cost effective manner. The parties agree that the exemplar of a successful Lift JV included in Schedule 18 is mutually agreed and aspirational and they plan to develop the relationship established under this Agreement to achieve a similar outcome.
2.3 The aim of this Clause 2 is to identify the high level principles which underpin the delivery of the parties' obligations under this Agreement and to set out key factors for a successful relationship between the parties. Whilst it is recognised that these principles are difficult to measure in isolation, the successful implementation of the Project Agreements, the Shareholders Agreement and this Agreement will depend on the Participants' ability effectively to co-ordinate and combine their expertise, manpower and resources in order to deliver an integrated approach to health and social care in the Area under this Agreement.
Principles
2.4 The principles referred to in Clause 2.3 are:
2.4.1 to develop close working relationships between Liftco and the Participants at all levels;
2.4.2 to focus on achieving the best value for money operational performance within agreed timescales;
2.4.3 to set in place business and cultural processes to enable the Participants and Liftco to establish and agree challenging time and performance objectives, and to meet or better them;
2.4.4 to recognise each other's needs, constraints, limitations, capabilities, roles and responsibilities to achieve mutually beneficial outcomes;
2.4.5 to identify, by regular monitoring, weaknesses and strengths in the relationship between and amongst the Participants and Liftco and to work together to overcome the weaknesses and to build on the strengths;
2.4.6 to commit to the early recognition and resolution of differences, conflicts and disputes between and amongst the Participants and Liftco in a 'no surprises' environment;
2.4.7 to appoint within each of the Participants and Liftco, co-ordinators at senior level who will support, defend and promote the long term strategic partnering between them and its principles of operation;
2.4.8 to develop openness and trust in a transparent information and data sharing environment; and
2.4.9 in accordance with the Sex Discrimination Act 1975, the Disability Discrimination Act 1995, the Human Rights Act 1998 and the Race Relations Act 1976, Employment Equality (Sexual Orientation) Regulations 2003 and Employment Equality (Religion and Belief) Regulations 2003 to positively promote equal opportunities by combating discrimination on the grounds of race, ethnicity, religion, nationality, gender, disability or sexuality and promoting good relations between all sections of the community in 'everything we do' including:
(a) delivering high quality local health services for end users; and
(b) working with the local community and partners in the public, private or voluntary sectors.
Mutual Objectives
2.5 This Agreement, under which, inter alia, a framework is established for the delivery of a range of services designed to assist in the integrated delivery of health and social care services in the Area, aims to ensure that the following essential components are embraced and adhered to by Liftco and the Participants:
2.5.1 Liftco and the Participants agree and commit themselves to agreed mutual objectives at the outset of this Agreement and each party's individual long-term goals are made known to, and understood by, the other parties;
2.5.2 these mutual objectives are kept under review through meetings and effective communications;
2.5.3 Liftco and the Participants benefit from 'open book' relationships in accordance with Clause 37 (Records and Open Book Accounting);
2.5.4 in its dealings with parties to the Supply Chain Agreements for the delivery of individual Projects, Liftco will seek to act in a manner consistent with the principles in Clause 2.4 and will seek to ensure that each of such parties is aware of and is able to contribute to the mutual objectives agreed with the Participants from time to time in accordance with this Clause 2.5; and
2.5.5 without prejudice to the provisions of Clause 29 (Confidentiality), all discussions between the parties are treated with mutual confidentiality.
Problem Resolution
2.6 Liftco and the Participants adopt an agreed systematic approach to problem resolution which recognises the principles contained in Clause 2.4.6. and:
2.6.1 seeks solutions without apportioning blame;