YORhub Frameworks

DATED the ? day of ? 201[?]
(1) / [ ? ]COUNCIL
(2) / [Partnership Client/Framework User?]

ACCESS AND CONFIDENTIALITY AGREEMENT

relating to information provided in connection with access to the following YORhubFramework Agreements: -

YORbuild2 Contractors Framework Agreement – North/ East/ South/ West Area*

YORcivil Contractors Framework Agreement – North & East/ South & West Areas*

YORconsult Consultants Framework Agreement – North & East/ South & West* Areas

Ref:[ ]

Page 1 of 15

Issue No.1 31 Mar 16YORhub Access and Confidentiality Agreement02.A.01

YORhub Frameworks

THIS AGREEMENT is made the ? day of ? 201[?]

BETWEEN:

(1)[ Contracting Authority ] COUNCIL whose main offices are at [ address ] (the ‘Council’) and

(2)[Partnership Client/Framework User? ]whose main offices are at [ address ] (the ‘Partnership Client’)

BACKGROUND

(1)The Council has participated in a regional initiative to secure the establishmentand management of regional Construction Framework Agreementsfor use by public and third sector organisations principally in the Yorkshire and Humber region.

(2)The ‘YORhub suite of Framework Agreements’ (comprising YORbuild2 Contractors Framework Agreement North, East, South West, YORcivil Contractors Framework Agreement North and East, South and West and YORconsult Consultants Framework Agreement North and East and South and West)have been procured in accordance with The Public Contracts Regulations 2006.

(3)The Partnership Client has requested permission to use one or more of the ‘YORhub suite of Framework Agreements’

(4)The Council is prepared to permit the Partnership Client to use the ‘YORhub suite of Framework Agreements’,subject to the Partnership Client:

(4.1)paying any fees referred to in this Agreement;

(4.2)entering into this Access and Confidentiality Agreement with the Council, governing the terms and conditions upon which access is available to the Frameworks; and

(4.3)obtaining prior written approval from the Council for each call off project they wish to be procured under this agreement, in accordance with the call off letter template in Schedule 2.

(5)The Partnership Client has agreed to enter into the Agreements referred to in Background clause (4.2).

operative provisions

1Interpretation and definitions

In this Agreement, unless otherwise specified:

1.1words denoting the masculine gender, shall include the feminine gender;

1.2words in the singular, shall include the plural and vice versa;

1.3words denoting persons, shall include corporations, incorporated or unincorporated associations and partnerships;

1.4a reference to any statutory provisions, shall include, unless the context otherwise requires, any statutory provisions superseding or re-enacting those statutory provisions and, any reference to a specific statutory provision shall include a reference to any statutory provision superseding or reenacting that statutory provision;

1.5a reference to clauses or schedules, shall, be a reference to a clause or a schedule to this Agreement and, references to a sub-clause shall be a reference to a sub-clause of the clause in which the reference appears;

1.6the headings and sub-headings in this Agreement are for ease of reference only and shall not be taken into account in its construction or interpretation;

1.7the following words and expressions have the meanings set out below:

1.7.1‘Call Off’ means the arrangements for a package of work in relation to the Project and which is to be provided under the terms of the Framework being accessed, including all the processes prior to the award of a contract and any contract subsequently awarded;

1.7.2the ‘Framework(s)’ means one or more of the Frameworks being Accessed from the YORhub suite of Framework Agreements(comprising the YORbuild2 Contractors Framework Agreement North, East, South and/or West, the YORcivil Contractors Framework Agreement North and East, and/or South and West and the YORconsult Consultants Framework Agreement North and East and/ or South and West); and

1.7.3the ‘Project(s)’means a project beingcalled off from one of the YORhub suite of Framework Agreements

1.7.4The ‘Fee’ means the cost to the Partnership Client for accessing the Frameworkand any other agreed additional services as set out in the call-off letter inSchedule 2. When accessing the YORconsult Consultants Frameworksand YORbuild2 Contractors Frameworks the Fee is included within the Supplier’s Framework rates and will be recovered by the Council from the Supplier.

1.7.5 ‘Confidential Information’ means:

1.7.5.1all data, information, drawings, specifications, documents and other data or information that the Council, a consultant or a supplier may have imparted or, may from time to time impart, to the Partnership Client relating to the Council’s business, the Frameworks, any Call Off or otherwise and including any technical specifications and contractual information; and

1.7.5.2all data, information, drawings, specifications, documents and other data or information that the Partnership Client may have imparted or, may from time to time impart, to the Council, a consultant or asupplier relating to the Partnership Client’s business, the Frameworks any Call Off or otherwise and including any technical specifications and contractual information.

1.7.6‘Suppliermeans a supplier appointed to one or more of the Frameworks by the Council.

2Statutory powers

2.1This Agreement is completed pursuant to the powers of the Council and the Partnership Client arising pursuant to the Local Authorities (Goods and Services) Act 1970, the Local Government Act 2003 and the Localism Act 2011 and all other enabling powers.

3The Partnership Client’s undertakings

3.1In consideration of the Council allowing the Partnership Client to use the Framework and providing any assistancedescribed in clause 4, the Partnership Client undertakes and agrees with the Council as provided in clause 3.2.

3.2The Partnership Client undertakes and agrees with the Council as follows:

3.2.1the Partnership Client shall only access the Framework to secure the delivery of the Projects approved by the Council;

3.2.2any Call Off by the Partnership Client shall be procured in accordance with the terms and conditions of the Framework. This includes the selection process and the conditions of contract that apply to the individual Call Off. There will be no substantive change to the terms and conditions applied to the Framework;

3.2.3in awarding a Call Off and managing the Project, the Partnership Client shall not act in any way that is discriminatory, improper or has the effect of distorting competition;

3.2.4the Partnership Client shall be the employer and shall be responsible for the day to day management of the Projectin relation to each Call Off the Partnership Client makes under this Agreement;

3.2.5any Call Off by the Partnership Client accessing the YORhub suite of Framework Agreements will use the following contract forms:

a)For the YORcivil Contractors Framework Agreement (North and East or South and West) the NEC3 suite of contracts.

b)For the YORbuild2Contractors Framework Agreement (North, South, East or West) the NEC3 suite of contracts is recommended although the JCT forms of contract may also be used.

c)For the YORconsult Consultants Framework Agreement (North and East or South and West)the NEC3 suite of contractsis recommended although other forms of contract are permitted. Where the Partnership Client uses any other form of consultancy contract they shall comply with the “YORconsult guidance note for using contract forms other than the NEC3 PSC” available on the YORhub.net website;

3.2.6the Partnership Client will provide to the Council such information as the Council requires in respect of the performance of the Supplierappointed under any particular Call Off so as to enable the Council to maintain its records relating tothe Supplier’s performance. This will include the timely completion of performance reports (RAG reports) at quarterly intervals throughout the commission;

3.2.7the Partnership Client must document all dealings with the Supplier to ensure a clear and precise audit trail;

3.2.8the Partnership Client shall save harmless and fully indemnify the Council from and against any and all loss, damage, liability, claims, actions, costs and expenses whatsoever arising out of or in connection with this Agreement, the use by Partnership Client and / or it’s employee’s, servants, agents, contractors, sub-contractors or subsidiaries of the Framework or any Call Off or use by the Partnership Client of information provided by the Council;

3.2.9For theYORcivil Contractors Framework Agreement (North and East or South and West) the Partnership Client shall pay the Feearising from Partnership Client’s use of the Framework and any other agreed additional services provided pursuant to this Agreement where relevant at the pricesset out in the call-off letter inSchedule 2or such other charge as the Council may from time to time impose in substitution thereof.The Fee for accessing the YORconsult Consultants Frameworksand the YORbuild2 Frameworksand receiving the basic service from the Council is included within the Supplier’s rates and will be recovered by the Council from the Supplier. The Partnership Client shall pay the Council’s costs for any other agreed additional services provided pursuant to clause 4 of this Agreement at the rates or such other charge as set out in the call-off letter in Schedule 2;

3.2.10the Partnership Client will have permission to access electronic copies of NEC3 contract documentation held on the YORhub.net secure network for Projects accessing the YORhub Frameworks only, when available and in accordance with the following provisions:

3.2.10.1Permitted uses: the Partnership Client may:

  • Search, view, retrieve and display the documentation.
  • Print single or multiple copies of individual items taken from the documentation.
  • Make electronic copies of individual items taken from the documentation forstorage on the Partnership Clientsmachine only.
  • Distribute single copies of individual items taken from the documentation inprint or electronic form to other Partnership Clients only;

3.2.10.2Prohibited uses: the Partnership Clientshall not:

  • remove or alter the authors’ names or affiliations or the publishers copyright notices or other means ofidentification or disclaimers as they appear in the documentation.
  • systematically make print or electronic copies of multiple extracts of the documentation for any purpose other than as explicitly permitted under clause 3.2.10.1 above.
  • provide or make available by electronic means to any third party a retained electronic copy of any part of the NEC3 contract documentation held on the YORhub.net secure networkother than as permitted above.
  • mount or distribute any part of the documentation on any electronic network, including but not limited to the Internet and the World Wide Web, other than the Secure YORhub.net securenetwork and as permitted above.
  • without the publisher’s explicitwritten permission:
  • Use the whole or any part of the documentation for sale, reward orexploitation other than as expressly permitted by this Agreement.
  • Publish, distribute or make available the documentation, works based on the documentation or works which combine it with any other material, other thanas permitted in this Agreement.
  • Alter, abridge, adapt or modify the documentation on a computer screen. For the avoidance of doubt, no alteration of the words or theirorder is permitted;

3.2.11The Partnership Client agrees to permit the Council to include details of the Call Off and Project and the Partnership Clients Logo(s) within publicity/marketing material including but not limited to websites, presentation/event supporting material and promotional publications. Where the Project has a site signboard the Partnership Client also agrees to the inclusion of a promotional logo relevant to the framework agreement; and

3.2.12The Partnership Client agrees to apply the recommended tendering and lead-in periods to Call-Off Projects as set out below wherever possible:

Procurement Route / Traditional (Contractor builds only) / D&B
Single Stage
Works contracts up to £1m
Baseline tender period / 3-4 weeks / 4-6 weeks
Lead-in period / 2-3 weeks / 6-8 weeks
Works contracts over £1m up to £10m
Baseline tender period / 4-5 weeks / 5-6 weeks
Lead-in period / Min 4 weeks / 8 weeks
Works contracts over £1m
Baseline tender period / 4-6 weeks / 5-8 weeks
Lead-in period / Min 4 weeks / Min 8 weeks

4The Council’s obligations

4.1In consideration of the Partnership Client paying the costs set out in this Agreement, the Councilundertakes and agrees with the Partnership Client as provided in clause 4.2

4.2The Councilundertakes and agrees with Partnership Client as follows:

4.2.1the Council will provide assistance to the Partnership Client as set out in Schedule 1. This includesadvice to the Partnership Client on the procurement, quality competition and tender award of a Call Off and advice on project management in relation to any Call Off under the terms of the Framework;

4.2.2the Council will provide any other advice and assistance in relation to a Call Off under the Framework as agreed between the parties as set out in the call-off letter in Schedule 2. Where required and agreed between the parties the Council will keep timesheets to evidence all charges for any additional services made pursuant to the terms of this Agreement.;

4.2.3the Council will provide any other advice and assistance in relation to a Call Off under the Framework as agreed between the parties.

4.2.4the Council will permit the Partnership Client to access electronic copies of NEC3 contract documents, subject to the terms referred to in clause 3.2.10 above.

5Agreements, declarations and undertakings

The parties to this Agreement agree and declare as follows:

5.1The consent to use the YORhub suite of framework agreements is at the sole discretion of the Council which may be withdrawn at any time. The availability of the Suppliers resources may, inter alia, be a factor in withdrawing any such consent but any decision by the Council to withdraw consent is not limited solely to the Suppliersresources. For the avoidance of doubt, the decision is at the sole discretion of the Council.

5.2The Partnership Client has satisfied itself and will continue to satisfy itself regarding all aspects of the YORhub suite of Framework Agreementsincluding but not limited to:

5.2.1the adequacy of the YORhub suite of Framework Agreements for the Partnership Client’s purposes;

5.2.2compliance of the Frameworkwith the EU procurement directives, the Public Contracts Regulations 2006 any other statutory or regulatory provision, the Partnership Client’s own procurement arrangements and requirements and the Partnership Client’s own funding arrangements and requirements.

5.2.3the Call Off process including the selection and the appointment of the Supplier;

5.2.4all aspects of the contract documentation and any other documentation, including any documentation issued or made available by the Council; and

5.2.5the legal and financial status, technical capability and capacity, health and safety record, equal opportunities standards, records and systems and insurances of the Supplier.

5.3This Agreement does not impose any contractual obligation or liability on the Council and no warranty is given or implied that the Framework meets the requirements of the Partnership Client.

5.4The Council will supply to the Partnership Client full details of the selection process that must be followed in the selection of a Supplier and the award of a Call Off by granting access to the YORhub.net processes and procedures.

5.5There is no obligation on the part of the Partnership Client to proceed with the award of a Call Off under the terms of this Agreement. It can withdraw at any time but in doing so it will be responsible for paying to the Council and, if appropriate, the Supplier, any fees, costs or expenses incurred by them up to the point of withdrawal by the Partnership Client.

5.6Any costs due to the Council pursuant to this Agreementif not paid by the Partnership Client on the due date, shall be a debt recoverable by action and shall bear interest at 3% above the base lending rate of the Council’s bank from the due date until the date of payment (but excluding that date).

5.7This Agreement will survive the termination of each Framework accessed for a period of 6 years.

5.8The obligations set out in this Agreement shall remain binding upon the parties regardless of the existence of any copies of the Confidential Information held or retained by any party.

5.9The parties to this Agreement, undertake and mutually agree with each other that they:

5.9.1will receive and hold any Confidential Information in the strictest confidence whether the same came into the respective party’s possession before or after the date of this Agreement and, will use their best endeavours to take all security precautions necessary to ensure the safekeeping of any Confidential Information and to prevent it's unauthorised disclosure to third parties;

5.9.2shall use such Confidential Information and all other data solely for the purposes of the Framework and all Call Offs made pursuant to them and that they shall not at any time during or any time after the completion expiry or termination of the Framework or any Call Offs, use the Confidential Information for the respective party’s own purposes or disclose the same whether directly or indirectly to any third party without the prior written consent of the other party;

5.9.3shall not themselves or through any employees, servant, agent, contractor, sub-contractor or subsidiary sell or otherwise deal in any Confidential Information;

5.9.4shall only make copies of any Confidential Information as strictly necessary for the operation of the Frameworks and Call Offs and, shall not copy or store the Confidential Information electronically outside of the respective party’s usual place of business;

5.9.5shall ensure that their respective employees, servants, agents, contractors, sub-contractors and subsidiaries are only given access to any Confidential Information on a need to know basis for the purposes of dealing with the Frameworks and Call Offs and that those employees, servants, agents, contractors, sub-contractors and subsidiaries are informed of the confidential nature of the Confidential Information and are contractually bound to safeguard the Confidential Information;

5.9.6shall maintain the safe custody of all Confidential Information and return it in the same condition as it was when first forwarded, save for any modification that may be required to ensure that it can be used on or in the party's systems and the party receiving the Confidential Information shall be liable for any loss or deterioration of it (save for normal wear); and