Parties

(1)Cumbria County Council of Cumbria House, 117 Botchergate, Carlisle, Cumbria, CA1 1RD (Council).

(2)The party whose details are set out in the Annual Budget Forecast (Provider).

Background

(A)The Council placed a contract notice [REFERENCE] on [DATE] in the Official Journal of the European Union inviting potential providers (including the Provider) to tender for the provision of Early Years Provision.

(B)The Provider was awarded a place on the Council’s Framework and is a Provider of care within the Council’s area.

(C)The Council is aware that Parents wish to use the Provider as the provider of Services for their Child and as a result the Counciland the Provider have agreed to enter into this contract for provision of the Services in accordance with the Framework Agreement.

Agreed terms

1.Definitions and Interpretation

1.1The definitions and rules of interpretation in this clause apply in this agreement.

Allotted Time:means the number of hours of the Service per week that the Parents and Child are eligible to receive based on their Eligibility.

Annual Budget Forecast: means the form ordering services in accordance with the Framework Agreement, on the basis of these terms and conditions, with the Provider and the Council setting out the estimated Charges for the term of this Contract.

Authorised Representatives: the persons respectively designated as such by the Council and the Provider in accordance with the Framework Agreement.

Bribery Act: 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.

Charges: the charges which shall become due and payable by the Council to the Provider in respect of the Services in accordance with the provisions of this agreement, as set out in Schedule 1.

Child/Children: means an individual(s) of the Relevant Age who is/are Eligible to receive the Services

Commencement Date:the start date set out in the Annual Budget Forecast

Data Processor: shall have the same meaning as set out in the Data Protection Act 1998.

Data Protection Legislation: the Data Protection Act 1998 (DPA), 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, the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the General Data Protection Regulation 2016 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.

EIRs: the Environmental Information Regulations 2004 (SI 2004/3391) together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such regulations.

Eligibility: the eligibility for receipt of the Services as determined in accordance with clause 9

EYFS: the statutory framework for the Early Years Foundation Stage

FOIA: 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.

Framework: means the Council’s framework for early years provision.

Framework Agreement: means the agreement entered into by the Council and the Provider for early years provision.

Funded Period: means each school term and the school holiday immediately following the term

Guidance: means the Council’s Guidance on Services as updated from time to time.

Information: has the meaning given under section 84 of FOIA.

Insolvency Event: where:

(a)the Provider suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

(b)the Provider commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;

(c)a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);

(d)an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Provider (being a company);

(e)the holder of a qualifying floating charge over the assets of the Provider (being a company) has become entitled to appoint or has appointed an administrative receiver; (i) a person becomes entitled to appoint a receiver over the assets of the Provider or a receiver is appointed over the assets of the Provider;

(f)the Provider (being an individual) is the subject of a bankruptcy petition or order;

(g)a creditor or encumbrancer of the Provider attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

(h)any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (a) to (g) (inclusive);

(i)the Provider suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(j)the Provider (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

Law: any law, statute, subordinate legislation within the meaning of section 21(1) of the Interpretation Act 1978, bye-law, enforceable right within the meaning of section 2 of the European Communities Act 1972, regulation, order, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements of any regulatory body with which the Provider is bound to comply;

Local Authority: means the Council and other equivalent authorities for other areas of the United Kingdom.

Measures: means those activities outlined at Schedule 3 as updated by the Council from time to time by notice to the Provider.

Necessary Consents: all approvals, certificates, authorisations, permissions, licences, permits, regulations and consents necessary from time to time for the performance of the Service including without limitation registration with Ofsted.

Ofsted: means the Office for Standards in Education, Children’s Services and Skills and/or such equivalent or other body or independent inspectorate as approved by central government from time to time

Parent: means a parent, guardian or care giver of any relevant Child.

Parent Declaration Form: means the form at Schedule 4 of this agreement.

Personal Data: shall have the same meaning as set out in the Data Protection Act 1998.

Prohibited Act: the following constitute Prohibited Acts:

(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 or common law concerning fraudulent acts;
(iii)defrauding, attempting to defraud or conspiring to defraud the Council.

(d)any activity, practice or conduct which would constitute one of the offences listed under clause 1.1(c), if such activity, practice or conduct had been carried out in the UK.

Provider’s Personnel: all employees, staff, other workers, agents and consultants of the Provider and any Sub-Contractors who are engaged in the provision of the Services from time to time.

Record of Progress: means an ongoing plan for the development of a Childs learning as part of the Services

Register: the register of providers held by the Council who are capable of providing the Services.

Regulated Activity: shall have the same meaning as set out in Part 1 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006.

Regulated Activity Provider: shall have the same meaning as set out in section 6 of the Safeguarding Vulnerable Groups Act 2006.

Relevant Age:means the age set out in documents referred to in the Specification as applicable.

Remediation Notice: a notice served by the Council in accordance with clause 36.1.

Request for Information: a request for information or an apparent request under the Code of Practice on Access to Government Information, FOIA or the EIRs.

SEND:Children with special educational needs and/or disabilities

Services: the provision of early years free entitlement for Children in accordance with this agreement, as more particularly described in the Specification

Setting: the location for delivery of the Services

Significant Failure:when:

  1. the Provider receiving an Ofsted report of “inadequate”, or any other equivalent grading;
  2. any action by the provider, whether in relation to the Services and this agreement or otherwise, which in the reasonable opinion of the Council, has or may cause significant harm to the reputation of the Council;
  3. the Provider fails to promote British values
  4. the Provider breaches the provisions of this agreement three or more times in any 6 month period

Specification: means schedule 1 of the Framework Agreement

Term: the period set out in the Annual Budget Forecast

Termination Date: the date of expiry or termination of this agreement.

Working Day: Monday to Friday, excluding any public holidays in England and Wales.

1.2Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.

1.4The schedules, and those documents referred to therein, form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes them.

1.5Words in the singular shall include the plural and vice versa.

1.6A reference to a statute or statutory provision 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.

1.7A reference to writing or written includes faxes and email.

1.8Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.

1.9A reference to a document is a reference to that document as varied or novated (in each case, other than in breach of the provisions of this agreement) at any time.

1.10References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule.

1.11Where there is any conflict or inconsistency between the provisions of the agreement, such conflict or inconsistency shall be resolved according to the following order of priority:

(a)The Annual Budget Forecast

(b)the clauses of the agreement;

(c)the Specification;

(d)the schedules to this agreement;

2.Term

2.1This agreement shall take effect on the Commencement Date and shall continue for the Term.

Key Local Authority Responsibilities

3.local authority responsibilities

3.1The Council shall, from time to time, set out the support on offer locally to meet the needs of children with special educational needs and/or disabilities (SEND) as well as its expectations of providers.

3.2The Council may offer reasonable assistance to the Provider from time to time as requested by the Provider in relation to safeguarding and promoting the welfare of children and young people.

3.3Subject to the terms of this agreement the Council shall:

(a)Fund, as set out in this agreement, places for two-, three- and four-year-old Children with the Provider if it is judged ‘good’ or ‘outstanding’ by Ofsted, or where the Provider is a childminder registered with a childminder agency judged ‘effective’ by Ofsted; and

(b)Fund, as set out in this agreement, places for three- and four-year-old Children wherethe Provider if it is judged ‘requires improvement’ by Ofsted or, if the Provider is a childminder registered with a childminder agency, judged ‘effective’ by Ofsted

if Parents wants their Child to take up their free place with the Provider and the Provider is willing to accept the Council’s funding and the terms of this agreement

Key Provider Responsibilities

4.Provider responsibilities

4.1The Provider shall comply with the requirements of all relevant regulatory bodies and all requirements of HMRC in accordance with all relevant Laws throughout the Term. Failure to comply with this clause4.1 shall entitle the Council to immediately terminate this agreement.

4.2The Provider must implementthe EYFSand have clear safeguarding policies and procedures in place that link to Guidance for recognising, responding, reporting and recording suspected or actual abuse.

4.3The Provider shall undertake the Measures set out in Schedule 3 as amended by the Council from time to time by notice to the Provider.

4.4The Provider shall at all times maintain its registration as a provider of nursery, school or care services with OFSTED and the Providershalltake all such actions as are necessary to ensure that its registration is not invalidated or terminated (save that this clause does not oblige the Provider to undertake any appeal).

4.5Providers must ensure that meals, snacks and drinks are healthy, balanced and nutritious; and involve Parents to promote healthy eating and lifestyles.

4.6The Provider shall provide Parents will all relevant information in relation to the Services and the current policies and procedures used by the Provider.

5.Supply of Services

5.1The Provider shall provide the Services to the Parents and Children for the Council with effect from the Commencement Date and for the duration of this agreement in accordance with the provisions of this agreement.

5.2The Provider shall deliver the Services consistently to all Parents, irrespective of the Allotted Time each Parent is entitled to and regardless of whether they opt to pay for optional services or consumables. The Provider shall clearly communicate to Parents details about the days and times that they offer the Services, along with their other services and charges. All Children accessing the Services must receive the same quality and access to provision.

5.3In the event that the Provider does not comply with the provisions of clauses5.1 or 5.2 in any way, the Council may terminate this agreement in accordance with Clause 36.

5.4Where the Provider wishes to offer any Child less than the Allotted Time per week provision of the Services over the course of the Funding Period this must be agreed in writing with the Council not less than one Funding Period prior to the commencement of the reduction in Service Provision.

5.5Where the Provider fails to obtain the Councils consent, the Council shall have the option of terminating this Agreement in accordance with clause 36.

5.6The Provider shall perform its obligations under this agreement (including those in relation to the Services) in accordance with all applicable Law regarding health and safety and child protection.

6.personnel used to provide the services

6.1At all times, the Provider shall ensure that:

(a)each of the Provider's Personnel is suitably qualified, adequately trained and capable of providing the applicable Services in respect of which they are engaged;

(b)there is an adequate number of Provider's Personnel to provide the Services properly; and

(c)only those people who are authorised by the Provider (under the authorisation procedure to be agreed between the parties) are involved in providing the Services;

Safeguarding

7.Safeguarding

7.1The Provider must follow the EYFS and have clear safeguarding policies and procedures in place that are in line with the Council’s guidance and procedures for responding to and reporting suspected or actual abuse and neglect. A lead practitioner (whose details shall be provided to the Council within 5 Working Days of request) must take responsibility for safeguarding and all staff must have training to identify signs of abuse and neglect. The Provider must have regard to ‘Working Together to Safeguard Children’ 2015 guidance, as updated and replaced from time to time.

8.Vulnerable Groups Act 2006

8.1The parties acknowledge that the Provider is a Regulated Activity Provider with ultimate responsibility for the management and control of the Regulated Activity provided under this agreement and for the purposes of the Safeguarding Vulnerable Groups Act 2006

8.2The Provider shall:

(a)ensure that all individuals engaged in Regulated Activity are subject to a valid enhanced disclosure check for regulated activity undertaken through the Disclosure and Barring Service (DBS);

(b)monitor the level and validity of the checks under this clause 8 for each member of the Provider’s Personnel; and

(c)not employ or use the services of any person who is barred from, or whose previous conduct or records indicate that he or she would not be suitable to carry out Regulated Activity or who may otherwise present a risk to Children.

8.3The Provider warrants that at all times for the purposes of this agreement it has no reason to believe that any person who is or will be employed or engaged by the Provider in the provision of the Services is barred from the activity in accordance with the provisions of the Safeguarding Vulnerable Groups Act 2006 and any regulations made thereunder, as amended from time to time.

8.4The Provider shall immediately notify the Council of any information that it reasonably requests to enable it to be satisfied that the obligations of this clause 8 have been met.