DATED 2009
VELINDRE NHS TRUST (1)
and
PUBLIC HEALTH WALES NATIONAL HEALTH SERVICE TRUST (2)
______
TRANSFER OF ASSETS AND LIABILITIES
______
Morgan Cole
www.morgan-cole.com
- 5 -
THIS AGREEMENT is made the day of 2009
PARTIES
(1) VELINDRE NHS TRUST, an NHS Trust established pursuant to the Velindre National Health Service Trust (Establishment) (Amendment) Order 2002 and having premises at Unit 2 Charnwood Court, Parc Nantgarw, Nantgarw, Cardiff, CF15 7QZ (“Velindre”) and
(2) PUBLIC HEALTH WALES NHS TRUST, an [NHS Trust] established pursuant to the Public Health Wales National Health Service Trust (Establishment) Order 2009 and having premises at Unit 1 Charnwood Court, Parc Nantgarw, Nantgarw, Cardiff CF15 7QZ (“Public Health Wales”),
each a “Party” and together, “the Parties”, which terms include their respective successors in title or in the exercise of their functions
BACKGROUND
A. In accordance with the Velindre National Health Service Trust (Establishment) (Amendment) Order 2002 (SI 2199), the functions of Velindre were extended to include the function of managing and providing a range of public health, health protection and advisory services, child protection services, microbiological laboratory services, services relating to the surveillance, prevention and control of communicable diseases, Screening Services (as defined) and the services undertaken by the Welsh Cancer Intelligence and Surveillance Unit which includes but is not limited to the collection, analysis and dissemination of information about cancer incidence, mortality and survival within the resident population “(the Public Health Services”).
B. By means of an Agreement dated 27 August 2003 and made between the Welsh Assembly Government (“WAG”) and Velindre, WAG further specified the range of the Public Health Services which Velindre was to provide.
C. In accordance with the Velindre National Health Service Trust (Establishment) (Amendment) Order 2009, the functions of Velindre were amended to exclude the Public Health Services which are no longer to be performed by Velindre.
D. The Agreement dated 27 August 2003 was terminated by WAG by letter addressed to Mrs Allison Williams, Interim Chief Executive of Velindre NHS Trust dated 24th August 2009.
E. In accordance with the Public Health Wales National Health Service Trust (Establishment) Order 2009 SI 2058 (W.177), the Public Health Wales was established to perform a number of functions which included the Public Health Services.
F. Velindre and Public Health Wales wish to enter into an agreement setting out the terms necessary to facilitate the transfer of the property, rights and liabilities arising from the establishment of Public Health Wales and the transfer of the Public Health Services by WAG from Velindre to Public Health Wales.
G. This Agreement sets out the terms (referred to in recital F above) on which the transfer will take place.
H. It is intended that all transfers of all assets, liabilities, and contracts (including contracts of employment) shall be legally binding and be of full force and effect. However whilst the Parties are both NHS bodies they wish to agree that their sole remedy for breach or alleged breach of any obligation under or in connection with this Agreement is limited to the dispute resolution procedure set out in clause 14.
AGREEMENT
1. INTERPRETATION
1.1 In this Agreement and in the Schedules (unless the context otherwise requires):-
“Agreement” means this agreement including the Schedules;
“Assets” means the benefit of the Contracts, the Debts, the Equipment, the Goodwill, the Intellectual Property, the Records and all other property rights and assets belonging to Velindre relating exclusively to the Public Health Services at the Transfer Date;
“Completion” means completion of the transfer of the Assets in accordance with clause 9;
“Contracts” means all contracts, grants, licences and engagements in force or pending and offers of contracts, grants, licences and engagements at the Transfer Date to which Velindre are party (or grantee) exclusively in connection with the Public Health Services including without limitation those contained in Schedule 2;
“Debts” means all book and other debts and prepayments belonging to Velindre exclusively in connection with the Public Health Services at the Transfer Date;
“Employment Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended;
“Equipment” means the office stocks, stationery (but excluding stationery bearing the registered charity number of Velindre) and advertising and promotional material, equipment, loose chattels and items of a similar nature as are used by Velindre exclusively in connection with the Public Health Services at the Transfer Date including without limitation the equipment contained in Schedule 2;
“Freehold Property” the freehold property from which Velindre has delivered Public Health Services, particulars of which are set out in Part 2 of Schedule 4;
“Future Assets” means assets received by Velindre after the Transfer Date relating exclusively to the Public Health Services;
“Goodwill” means the exclusive right for Public Health Wales to represent itself as carrying on the activities in continuation of the Public Health Services including the benefit of the Contracts, instructions and engagements exclusively relating to the Public Health Services;
“Intellectual Property” means trade marks, designs, and applications for any of the foregoing; the right to apply for registration of any of the foregoing and any similar or analogous rights; copyright, database rights, know-how, or similar experience available to the Transferring Employees, drawings, blueprints, plans, specifications, dates and descriptive materials, technical files and reports, insofar as the above exclusively relate to or were exclusively developed for the purpose of the Public Health Services;
“Leasehold Properties” means the leasehold properties from which Velindre has delivered Public Health Services, particulars of which are set out in Part 1 of Schedule 4 and Leasehold Property means any of them;
“Properties” means the Freehold Property and the Leasehold Properties;
“Parties” means Public Health Wales and Velindre;
“Public Health Services” means the public health, health protection and advisory services, child protection services, microbiology laboratory services, services relating to the surveillance, prevention and control of communicable diseases, Screening Services and the services undertaken by the Welsh Cancer Intelligence and Surveillance Unit which includes but is not limited to the collection, analysis and dissemination of information about cancer incidence, mortality and survival within the resident population carried on by Velindre prior to the Transfer Date and as further described in the chart set out in Schedule 1 ;
“Records” means all the information and records of Velindre exclusively or mainly in relation to the Public Health Services, including all accounting, financial, marketing, sales, supply, personnel, administrative, management and technical information, correspondence and literature in whatever media it is held or recorded, catalogues, advertising and all other documents, papers and records (however stored);
“Schedule” means a schedule to this Agreement;
“Screening Services” means the services undertaken by Breast Test Wales, Cervical Screening Wales, Newborn Hearing Screening Wales and Bowel Screening Wales and Antenatal Screening Wales;
“Transfer Date” means the 1st October 2009;
“Transferring Employees” means the persons who are assigned to the provision of the Public Health Services
“WAG” means the Welsh Assembly Government as established by the Government of Wales Act 2006, and includes any successor to it in the exercise of the relevant functions.
1.2 In this Agreement:
1.2.1 the clause headings are included for convenience only and shall not affect the construction of this Agreement;
1.2.2 words denoting the singular shall include the plural and vice versa;
1.2.3 words denoting any gender shall include a reference to the other gender;
1.2.4 references to persons shall be deemed to include references to natural persons, firms, partnerships, companies, corporations, associations, organisations, foundations and trusts (in each case whether or not having separate legal personality);
1.2.5 a reference to any statute or statutory provision will be construed as a reference to that statute or provision as amended, extended, consolidated or reenacted (whether before or after the date of this Agreement and whether with or without modification) from time to time and will include any order, regulation, instrument or other subordinate legislation made under the relevant statute.
2. TRANSFER OF ASSETS
2.1 Subject to the terms and conditions of this Agreement and in consideration of the mutual promises in this Agreement, Velindre transfers to Public Health Wales on the Transfer Date the Assets with full title guarantee.
2.2 Velindre will transfer promptly to Public Health Wales all Future Assets provided that such transfer does not constitute a breach of trust by Velindre and subject to any necessary consents.
2.3 Notwithstanding clause 2.1 and the transfer of the Intellectual Property to Public Health Wales, Public Health Wales acknowledges and undertakes that it will hold on trust the Intellectual Property (or such intellectual property as may in the future subsist) for the benefit of NHS Wales.
3. CONTRACTS
3.1 In respect of the Contracts:
3.1.1 Velindre shall on the Transfer Date assign or hold to the order of Public Health Wales or procure the assignment to the order of Public Health Wales of all the Contracts which are capable of assignment without the consent of other parties;
3.1.2 in the case of those of the Contracts not so capable of assignment Velindre shall, as soon as practicable following Completion, use reasonable endeavours to obtain all necessary consents for the assignment of the same or to arrange the novation thereof on terms acceptable to Public Health Wales (acting reasonably); and
3.1.3 in respect of the benefit of the Contracts unless and until consents are obtained or assignment or novation is effected (and in respect of the burden of performance of the Contracts after the Transfer Date, unless and until such novation is effected) Velindre shall, at the option of Public Health Wales, following Completion either:
3.1.3.1 unless contractually prevented from doing so, sub-contract the same to Public Health Wales on the same terms (making changes to those terms where the context requires) and for the same remuneration as applied to the Contracts in question; or
3.1.3.2 act in connection therewith in all respects as Public Health Wales may from time to time reasonably direct (provided that Public Health Wales has agreed to pay Velindre its reasonable costs arising in connection therewith);
And use reasonable endeavours to procure that (without prejudice to the generality of the foregoing) Public Health Wales may perform the obligations and liabilities arising under the Contracts in question so far as any such obligation or liability arises on or after the Transfer Date and full benefit of all contractual rights, benefits and claims thereunder arising on or after the Transfer Date shall vest in and be held on trust by Velindre for Public Health Wales absolutely.
4. TRANSFERRING EMPLOYEES
4.1 The Parties acknowledge and agree that they believe that the transfer of the Public Health Services by WAG from Velindre to Public Health Wales will constitute a “relevant transfer” for the purposes of the Employment Regulations and that such transfer will take effect in its entirety on the Transfer Date.
4.2 Velindre warrants to Public Health Wales that the Transferring Employees are all employees of Velindre. Velindre warrants that there are no agreements or other arrangements, whether or not legally binding, between Velindre and the Transferring Employees which have not been disclosed.
4.3 The Parties acknowledge and agree that, pursuant to the Employment Regulations, the Contracts of Employment between Velindre and the Transferring Employees (save insofar as such contracts relate to any occupational pension scheme) will have and be deemed to have had effect on the Transfer Date as if originally made between Public Health Wales and the Transferring Employees. The Parties shall comply in all respects with the obligations imposed on either of them by the Employment Regulations in respect of the Transferring Employees (whether or not it shall be determined by an Employment Tribunal or a Court of any instance/jurisdiction that any or all of the Transferring Employees were not entitled to protection, whether wholly or in part, under the Employment Regulations).
4.4 Public Health Wales shall indemnify and keep indemnified Velindre from and against any and all claims, demands, actions, proceedings, damages, compensation, awards, fines, costs and expenses (including legal expenses on an indemnity basis) and all other liabilities whatsoever which relate directly or indirectly, or otherwise in connection with:-
4.4.1 The employment by Public Health Wales of the Transferring Employees or arise out of any act or omission by Public Health Wales in relation to any of the Transferring Employees on or after the Transfer Date;
4.4.2 The failure by Public Health Wales to comply with the provisions of Regulations 13 and 14 of the Employment Regulations; and
4.4.3 Any action by any Transferring Employee as a result of any failure by Public Health Wales to provide benefits comparable to those provided by Velindre prior to the Transfer Date.
4.5 Each Party will inform the other as soon as is reasonably practicable of it becoming aware of any matter which may lead to a claim by it against the other party for indemnification in respect of matters governed by clause 4.4 and shall not settle or compromise any claim by any person to which clause 4.4 relates without the prior consent of the other party (such consent not to be unreasonably withheld or delayed). Furthermore, each party agrees to co-operate with the other in relation to any claim.
4.6 So far as it is aware, Velindre has, at all relevant times, complied with all its obligations in relation to Transferring Employees and save as disclosed, there are no claims in existence or capable of arising, pending or threatened by any Transferring Employee in respect of their employment or its termination by Velindre.
4.7 Public Health Wales shall indemnify and keep indemnified Velindre from and against all claims, costs, demands, liabilities and expenses (including legal expenses on an indemnity basis) whatsoever arising out of or in connection with a Transferring Employee and the identity of their employer changing by the virtue of the Employment Regulations and/or this Agreement and/or the termination of his employment or a substantial change or proposed change to the terms of his or her employment or working conditions as a result of any act or omission of Public Health Wales whether such claims arise before, on or after the Transfer Date.
4.8 Public Health Wales shall facilitate continued access for the Transferring Employees to the NHS Pension Scheme with effect from the Transfer Date.