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Freedom of Information Act 2000 Information Request: IR2078064 Date of Request: 07/11/2014 Date of Disclosure: 05/12/2014 Request and Devon County Council Response (in blue bold text) In response to Information Request No IR1904264, you emailed a reply to me on November 3, attaching a report by the DCC Head of Economy and Enterprise to DCC Cabinet dated September 10, 2014. Two questions arise in connection with this report on which I would like further clarification: Question 1: In this document, Section 5, Financial Considerations, there is a table showing how the current BDUK match funding of £19.167M has been arrived at. At the bottom of this table, there is an amount shown as "Additional funding available.....£3.583M". This is commented on below the table as follows: ** where additional match is secured by the County Council and its partners, BDUK has indicated it is possible to draw down the balance of the £22.75m BDUK allocation for a certain time period. Please can you specify what is meant by "a certain time period". The use of the word "certain" means that the time period referred to has been defined. Is this a number of days, weeks, months or years and if it is one of these (as it must be) what is the number? Devon County Council does not hold a recorded definition of the “certain time period” referred to in the report. Therefore, in accordance with Section 3(2) of the Freedom of Information Act 2000, this information is not held. Question 2: More than once, the report refers to an existing "Collaboration Agreement between partners", most notably in Section 9, Legal Considerations, under Programme Governance. Please specify who the partners referred to are and provide a copy of the "Collaboration Agreement between partners" as referred to. Devon County Council can confirm that the partners referred to are:
Somerset County Council
Devon County Council
Torbay Council
Bath and North East Somerset Council
North Somerset Council Please find the Collaboration Agreement attached.
Page 1 of 26
DATED
------------
COLLABORATION AGREEMENT
FOR THE DELIVERY OF THE LOCAL BROADBAND PLAN IN DEVON AND
SOMERSET
BETWEEN
Bath and North East Somerset Council
Devon County Council
North Somerset Council
Somerset County Council
Torbay Council
Page 2 of 26
THIS AGREEMENT is dated [DATE]
PARTIES
The Parties to this Agreement are:
(1) BATH and NORTH EAST SOMERSET COUNCIL of The Guildhall
High Street Bath BA1 5AW (“B&NES”)
(2) DEVON COUNTY COUNCIL of County Hall Topsham Road Exeter
Devon EX2 4QD (“Devon”)
(3) NORTH SOMERSET COUNCIL of Town Hall Walliscote Grove
Road Weston-super-Mare BS23 1UJ (“North Somerset”)
(4) SOMERSET COUNTY COUNCIL of County Hall Taunton Somerset
TA1 4DY (“Somerset”)
(5) TORBAY COUNCIL of Town Hall Castle Circus Torquay TQ1 3DR
(“Torbay”)
Throughout this agreement jointly referred to as the Authorities
1 BACKGROUND
1.1 The Authorities have resolved to work together to ensure delivery of
the Devon and Somerset Local Broadband Plan which aims to promote
economic growth and residential benefit through access to faster
broadband across the Area, typically in rural and more remote localities
1.2 In furtherance of this aim the Authorities have been successful in their
application to secure funding from BDUK to assist the Authorities in
procuring a broadband supplier
1.3 In addition to BDUK Funding the Authorities intend both jointly and
through their individual Authorities to secure funding and benefits from
other sources
1.4 The Authorities wish to record the basis on which they will collaborate
with each other to achieve the successful delivery of the Local
Broadband Plan and this Agreement sets out:
(a) the key objectives of the Programme;
(b) the principles of collaboration;
(c) the governance structures the Authorities will put in place; and
Page 3 of 26
(d) the respective roles and responsibilities the Authorities will have
during the Programme.
2 INTERPRETATION
2.1 In this Agreement unless the text otherwise requires the following
expressions have the following meanings:-
“Agreement” means this agreement comprising the terms and
conditions together with the schedules attached hereto
“Area” means the administrative areas of B&NES Devon North
Somerset Plymouth Somerset and Torbay
“The Authorities” means the parties named at the beginning of this
Agreement and “Authority” shall mean any one of the Authorities as the
context dictates
“Bidders” means those economic entities which have been appointed
to BDUK Broadband Delivery Framework and which are eligible to bid
in the Call Off process
“BDUK” means Broadband Delivery UK a team within the Department
of Culture Media and Sport
“BDUK Funding” means a sum in the region of thirty million pounds
awarded by BDUK to the Authorities towards the delivery of the
Programme
“BDUK Funding Agreement” means the agreement entered into by the
Lead Authority and BDUK to secure the BDUK Funding
“Broadband Agreement” means the agreement for the delivery of and
subsequent management of broadband provision across the Area
“Call Off Process” means the procurement competition run by the
Authorities following the establishment of the BDUK framework to
appoint the Preferred Bidder
“Commencement Date” means the date that this Agreement is
executed by the Authorities
Page 4 of 26
“Delivery and Service Phase” means the period from the
commencement of any Programme Agreements (which ever is earliest)
until the termination of any of the Programme Agreements (which ever
is the last to terminate)
“Lead Authority” means Somerset whom the Authorities have agreed
shall lead the Programme
“Local Broadband Plan” means the Devon and Somerset Local
Broadband Plan set out at Schedule E submitted by the Authorities and
which has been accepted by BDUK as the basis of the award of BDUK
Funding and for securing other funding sources
“Loss” and “Losses” include any loss and liability directly suffered by
the Authorities or any of them together with any damage expense
liability or costs (including costs on an indemnity basis where ordered
by a Court) reasonably incurred in contesting any claim to liability and
quantifying such loss and liability
“Memorandum of Understanding” means the document dated the 19th
July 2011 and signed by Somerset on behalf of the Authorities and
BDUK to support the Programme until replaced by the BDUK Funding
Agreement
“Post Delivery and Service Phase” means the period from the
completion of the Delivery and Service Phase until such time as all
Authorities obligations, responsibilities and liabilities under the
Programme and any Programme Agreements have ceased
“Preferred Bidder” means the Bidder selected by the Programme Board
as preferred bidder to implement the Broadband Agreement
“The Principles” mean the principles set out in Clause 4
“The Procurement Process” means that phase of the Programme
relating to the selection of the Preferred Bidder
“The Programme” means the shared objective of the Authorities to
deliver and sustain the Local Broadband Plan including any
amendments across the Area
“The Programme Agreements” means all agreements entered into by
the Lead Authority which will facilitate the delivery of the Programme
Page 5 of 26
“The Programme Board” means the entity comprising the Officers and Members set out in clause 7 and having the overall responsibility for ensuring the Programme is delivered
“Programme Cost Sharing Scheme” means the principles and
arrangements set out in Schedule A for determining the allocation of
costs and any income arising from the Procurement Phase and the
Delivery and Service Phase
“The Programme Director” means the person appointed for the overall
co- ordination and effective delivery of the Local Broadband Plan
“The Programme Manager” means the person appointed to manage the day to day running of the Programme
“The Statutory Officers” means the Head of Paid Service, the Chief Finance Officer and the Monitoring Officer for each of the Authorities
2.2 Reference to any statute or statutory provision includes a reference to
that statute or statutory provision as amended, extended or re enacted
from time to time
2.3 Words importing the singular include the plural, words importing any
gender include every gender, words importing persons include bodies
corporate
2.4 The clauses and paragraph headings and titles appearing in the
Agreement are for reference only and shall not effect its construction or
interpretation.
3 TERM
3.1 This Agreement shall come into effect on the Commencement Date
and shall continue in force in respect of the Authorities until the expiry
of the Post Delivery and Service Phase unless terminated earlier in
accordance with the terms of this agreement
3.2 If the Authorities consider it expedient to do so this Agreement may be
reviewed and the Agreement amended or a supplementary agreement
entered into so it more accurately reflects each Authority’s obligations
liabilities and commitments
Page 6 of 26
4 GENERAL PRINCIPLES OF COLLABORATION
4.1 The Authorities agree to adopt the following principles when carrying out
the Programme:
(a) To collaborate and co-operate. To establish and adhere to the
governance structure set out in this Agreement to ensure that activities
are delivered and actions taken as required;
(b) To be accountable. To take on, manage and account to each other
for performance of the respective roles and responsibilities set out in
this Agreement;
(c) To be open. To communicate openly about major concerns, issues
or opportunities relating to the Programme;
(d) To learn, develop and seek to achieve full potential. To share
information, experience, materials and skills to learn from each other
and develop effective working practices, work collaboratively to identify
solutions, eliminate duplication of effort, mitigate risk and reduce cost;
(e) To adopt a positive outlook. To behave in a positive, proactive
manner;
(f) To adhere to statutory requirements and best practice. To comply
with applicable laws and standards including EU procurement rules,
data protection and freedom of information legislation;
(g) To act in a timely manner. To recognise the time-critical nature of
the Programme and respond accordingly to requests for support;
(h) To manage stakeholders effectively;
(i) To deploy appropriate resources. To ensure sufficient and
appropriately qualified resources are available and authorised to fulfil
the responsibilities set out in this Agreement; and
(j) To act in good faith to support achievement of the key objectives
contained in the Local Broadband Plan and compliance with these
Principles.
5 STATUS OF THE AGREEMENT
5.1 The Authorities agree that the Agreement shall take the form of a
legally binding relationship and the mutual commitments between them
Page 7 of 26
created by the Agreement shall from the Commencement Date be
construed accordingly
5.2 This Agreement, including the Annexes, may only be varied by the
written agreement of the Parties
6 OFFICERS
6.1 Where appropriate the Authorities will make such of their officers
available as necessary for the purposes of implementing the
Programme to undertake such duties as are reasonably required by the
Programme Board
6.2 When working on the Programme such officers shall act under the
direction of the Programme Director
7 PROGRAMME GOVERNANCE
7.1 Overview
The governance structure set out in Clause 8 is the structure for the
development and delivery of the Programme
7.2 Guiding principles
The following guiding principles are agreed. Programme Governance will:
(a) provide strategic oversight and direction;
(b) be based on clearly defined roles and responsibilities at organisation,
group and, where necessary, individual level;
(c) align decision-making authority with the criticality of the decisions required;
(d) be aligned with Programme scope and may therefore require changes
over time;
(e) leverage existing organisational, group and user interfaces;
(f) provide coherent, timely and efficient decision-making, and
(g) correspond with the key features of the Programme governance
arrangements set out in this Agreement
Page 8 of 26
8 THE PROGRAMME BOARD, THE PROGRAMME DIRECTOR AND
PROGRAMME MANAGER
8.1 The Programme Board, Programme Director and Programme Manager
shall have assigned to them the functions set out in schedules C and D
respectively
8.2 The Programme Board shall consist of
8.2.1 The Cabinet Members of Devon and Somerset with
responsibility for economic development in their respective
authorities
8.2.2 The Chief Executives of Devon and Somerset
8.2.3 A nominated senior officer from B&NES, Devon, North Somerset
and Somerset
8.2.4 A representative from BDUK
8.2.5 A representative each from the Heart of the South West Local
Enterprise Partnership and the West of England Local
Enterprise Partnership
8.3 The governance arrangements for the operation of the Programme
Board shall be as set out in Schedule D
9 LIABILITIES IMMUNITY AND INDEMNITY
9.1 Member and Officer Liability
9.1.1 When working as a member of the Programme Board the
members shall be deemed to be representing their own Authority even
when the particular matter under consideration relates to or also relates
to another Authority.
9.1.2 When working on the Programme officers shall be deemed to be
working on behalf of both their employing authority and made available
Page 9 of 26
and working on behalf of the other Authorities under Section113 of the
Local Government Act 1972.
9.1.3 Both members and officers shall be treated as falling within the
statutory immunity provided by section 265 of the Public Health Act
1875
9.2 Indemnities of the Authorities to Devon in respect of the Procurement
Process
9.2.1 Devon is administering the Call Off Process to appoint the
Preferred Bidder and other contractors in respect of the other
Programme Agreements
9.2.2 The Authorities shall indemnify Devon in such proportions as are
set out in Schedule A against all Losses incurred by Devon arising out
of the procurement processes conducted under the Public Contracts
Regulations 2006 or otherwise where Devon has acted in good faith
and exercised the reasonable care and skill expected of a local
authority administering a procurement process in similar circumstances
9.2.3 The indemnity provided under clause 9.2.2 on the part of the
Authorities shall not extend to Losses incurred by reason of gross
negligence , gross misconduct, fraud, breach of law or duty on Devon’s
part or any act or omission by Devon which is contrary to proper local
government law or practice
9.3 Indemnities of the Authorities in respect of the Programme Agreements
9.3.1 The Lead Authority shall indemnify the other Authorities for any
Losses arising and incurred by them as a result of the Lead Authority’s
failure in its capacity as the contracting authority and/or accountable
body to comply with the terms of the Broadband Agreement, the
BDUK Funding Agreement, the Programme Agreements or any of
them. The other Authorities confirm that they have read and
understood the conditions of the BDUK Funding Agreement and each
Authority agrees individually to indemnify the Lead Authority against
any act or omission of that individual Authority which has caused the
Lead Authority to contravene or cause a breach of the Broadband
Agreement and the BDUK Funding Agreement once entered into.
9.3.2 The other Authorities shall use their reasonable endeavours to
assist the Lead Authority in complying with its obligations under the
Page 10 of 26
Programme Agreements so as to ensure the delivery of the
Programme
9.3.3 The Authorities shall indemnify the Lead Authority in such
proportions as are set out in Schedule A against any Losses which
may arise despite the Lead Authority properly performing or
discharging its role as Lead Authority under this Agreement and any of
the Programme Agreements, in accordance with the authority given to
it by or pursuant to this Agreement
9.3.4 The indemnity under clause 9.3.3 shall not extend to any Losses
incurred by reason of gross negligence, gross misconduct, fraud,
breach of duty or law on the Lead Authority’s part or any act or
omission by the Lead Authority which is contrary to proper local
government practice or local government law
9.4 General Indemnity of the Authorities
9.4.1 Where with the consent of the Programme Board any Authority
undertakes any task in relation to the Programme then the other
Authorities (including the Lead Authority) shall indemnify that Authority
in such proportions as are set out in Schedule A against any Losses
which may arise despite that Authority properly performing or
discharging such tasks as have been allocated to it
9.4.2 The indemnity under clause 9.4.1 shall not extend to any losses
incurred by reason of gross negligence, gross misconduct, fraud,
breach of duty or law on the task performing Authority’s part or any act
or omission by that Authority which is contrary to proper local
government practice or local government law
9.4.3 The Authorities shall remain liable for any losses or liabilities
incurred due to their own or their employee's actions
10 LEAD AUTHORITY
10.1 The Lead Authority shall act on behalf of the Authorities in leading the
Programme. In particular it shall:
10.1.1 Carry out the functions set out in Schedule B to this Agreement
10.1.2 In its capacity either as the accountable body and /or contracting
party to the Programme Agreements ensure compliance with their
Page 11 of 26
terms and condition and carry out the obligations under them so as not
to jeopardise the Programme or the funding of the Programme
10.1.3 The Lead Authority shall act under the direction of the
Programme Board
11 INTELLECTUAL PROPERTY
11.1 Subject to agreement to the contrary in any Programme Agreements all
intellectual property in any material created by or on behalf of the Programme
shall be jointly owned by the Authorities in such proportions as are set out in
Schedule A
11.2 Each Authority warrants that any intellectual property created by its
officers for the purposes of the Programme will not infringe any third parties
intellectual property rights
12 COST ALLOCATION
12.1 Subject to the indemnities given in clause 9 the Authorities shall
contribute towards the costs of the Programme costs in the amounts
set out in Schedule A of this Agreement
13 ESCALATION
13.1 If any Authority has any issues concerns or complaints about the
Programme or the Agreement that Authority shall notify all the other
Authorities concerned who shall seek to resolve the issue by a process
of consultation between the Chief Executives of the relevant parties. If
the issue is not resolved within 14 days the matter shall be referred to
the Programme Board which shall decide on the appropriate course of
action. If the matter is unable to be resolved at the Programme Board
it may be dealt with under the Dispute Resolution Procedure set out in
clause 20
13.2 If any Authority receives any written enquiry complaint or claim from a
third party (including but not limited to requests for information under
the Freedom of Information Act 2000 or the Environmental Regulations
Page 12 of 26
2004) in relation to the Programme the matter shall be promptly
referred to the Programme Board (or its nominated representative).
Any Authority receiving such an enquiry shall, unless it is impractical in
all the circumstances not to do so, only respond to such an enquiry
after the matter has been considered by the Programme Director
14 TERMINATION
14.1 This Agreement shall begin on the Commencement Date and shall
expire upon the termination of the Post Delivery and Service Phase.
14.2 If 75% of the Authorities serve notice on the Programme Board to the
effect that they wish to withdraw from this agreement and their
participation in the Programme then this Agreement shall terminate in
twelve months from receipt of the notice
14.3 Where the Agreement is terminated under clause 14.2 the Authorities
shall be entitled to the repayment of any uncommitted and/or unspent
revenue contributions in such proportions as are set out in Schedule A
15 WITHDRAWAL
15.1 Each Authority acknowledges that the withdrawal of it from the
Programme and from this Agreement will have consequences for the
delivery of the Programme and that additional costs may be incurred by
other Authorities and that such withdrawal could result in the
Programme being delivered late or not being delivered at all
15.2 The costs of withdrawal during the Procurement Phase may include but
are not limited to:
a) the cost of undertaking a new procurement exercise
b) the cost of the remaining parties seeking additional funding
c) the costs arising from the possible breach of the Programme
Agreements or any of them
d) claims from Bidders in respect of wasted procurement costs
Page 13 of 26
e) costs arising from the delayed rollout of the Programme
15.3 The costs of withdrawal during the Delivery and Service Phase of the
Programme may include but are not limited to:
a) any claim which the other parties to the Programme Agreements
may have against the Lead Authority as a result of the Lead Authority
being unable to comply with the Programme Agreements or any of
them
b) the cost arising in the procurement of new contracts or negotiating
new contracts with the Broadband Provider or other contractors
15.4 Any Authority may withdraw from this Agreement by giving three
months written notice to the Programme Board during the Procurement
Phase and twelve months written notice during the Delivery and
Service Phase
15.5 Each Authority agrees that in the event that it gives notice of
withdrawal to the others it will indemnify the others against any Losses
which the remaining Authorities may suffer as a result of its withdrawal
from the Agreement
16 CONSEQUENCES OF WITHDRAWAL OR TERMINATION
16.1 Where this Agreement is terminated under Clause 14.2 or an Authority
withdraws under clause 15.4
16.1.1 The Agreement shall continue in force in respect of any financial
liabilities which have or may arise out of the performance of the
Agreement or the Programme
16.1.2 The Agreement shall remain in force in respect of any liability of
any Authority to indemnify the others under any provision of this
Agreement and
16.1.3 The procedures as set out in clause 20 of the Agreement shall
remain in force in respect of any other matters arising from the
performance of or withdrawal or termination of any Authority under this
agreement
Page 14 of 26
16.2 Where an Authority withdraws from this Agreement it shall not be
entitled to any reimbursement of its contributions as set out in
Schedule A
17 WITHDRAWAL OR REDUCTION OF FUNDING OR CHANGE IN
LAW
17.1 The Authorities acknowledge that the arrangements set out in this
Agreement are designed to facilitate the delivery of the Programme by
the application of BDUK Funding and other funding. If such funding
proves not to be available or proves to be less than anticipated by the
Authorities or as a consequence of any Change in Law it is no longer
possible to complete the Programme the Authorities shall work
together to develop alternative proposals so as to achieve, as far as
possible within the financial or legal constraints, agreed aspects of the
Programme
17.2 If, following the best endeavours of the Authorities it is not possible to
develop alternative proposals all Authorities shall be entitled to
withdraw from this agreement without further consequences (save for
any existing claims or indemnities arising from this Agreement or any
Programme Agreements or otherwise but for the avoidance of doubt
excluding claims under clause 15.5) and this Agreement shall
terminate. For the avoidance of doubt any contributions made by any of
the Authorities will not be refunded
18 CONFIDENTIAL INFORMATION
18.1 Subject to clause 19 the Authorities shall at all times keep confidential
(and procure that their respective employees agents consultants and
sub contractors shall keep confidential) all Confidential Information
concerning the Programme or the business or affairs of the other
Authorities which may now or at any other time be in their possession
and shall not disclose it without the consent of the Authority to whom
the information relates
18.2 For the purposes of the Agreement “Confidential Information” means
information imparted to any Authority, their employees, consultants or
sub contractors (“the Receiving Party”) which was imparted to the
Receiving Party on the basis that it is to be kept confidential or would
Page 15 of 26
by its nature normally be regarded as being confidential or to the
knowledge of the Receiving Party was obtained by the other Authorities
on the basis that it would be kept confidential or is of commercial value
in relation to the Programme but shall not include any information
which is for the time being in the public domain otherwise than by
reason of its wrongful disclosure by the Receiving Party
18.3 Each Authority shall indemnify and keep indemnified the other
Authorities against all Losses incurred by the others in respect of any
breach of this Clause by an Authority disclosing Confidential
Information
18.4 This clause shall survive the termination of this Agreement
19 FREEDOM OF INFORMATION ACT 2000 (“FOIA”) AND
ENVIRONMENTAL INFORMATION REGULATIONS 2004 (“EIR”)
19.1 Each Authority acknowledges that they are all subject to the
requirements of FOIA and the EIR and each Authority shall provide
reasonable assistance and co operation (at their own expense) so as
to enable each of the other Authorities to comply with these information
disclosure obligations
19.2 Where an Authority (“the Receiving Authority”) receives a request for
information under FOIA or EIR which relates to this Agreement or the
Programme it shall circulate it as soon as possible and in any event
within five days of receipt to the other Authorities and shall use all
reasonable endeavours to consult with the others prior to any
disclosure
19.3 Each Authority acknowledges that where an Authority has received a
request for information that Authority is responsible for determining in
its absolute discretion whether such information is exempt from
disclosure under the FOIA or the EIR and the Receiving Authority may
disclose such information without consulting the other Authorities or
following consultation and having taken the other Authorities views into
account
20 DISPUTE RESOLUTION
Page 16 of 26
20.1 If having failed to resolve any dispute under clause 13 the Authorities
will attempt to settle the dispute by mediation in accordance with the
Centre for Dispute Resolution (“CEDR”) Model Mediation Procedure
20.2 To initiate any mediation any Authority may give notice in writing to the
other Authorities requesting mediation of the dispute and shall send a
copy to CEDR. The Authorities shall co operate with any person
appointed as mediator and provide him with such information and other
assistance as he shall require and will pay his costs as he shall
determine
21 SEVERANCE
If any condition provision or clause of this Agreement shall become or
be declared by any court of competent jurisdiction to be void invalid
illegal or unenforceable in any way, such invalidity or unenforceability
shall not impair or affect any other provision all of which shall remain in
full force and effect
22 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding
between the Authorities and supersedes any previous agreement or
understanding between the Authorities relating to the subject matter of
the Agreement
23 WAIVER
23.1 The failure to exercise or delay the exercising of any right or remedy
provided by this Agreement or by law does not constitute a waiver of
such right or remedies or a waiver of any other rights or remedies
23.2 A waiver of a breach of any of the terms of the Agreement or of a
default under the Agreement does not constitute a waiver of any other
breach or default and shall not affect the terms of the Agreement.
Page 17 of 26
23.3 A waiver of a breach of any of the terms of the Agreement or of a
default under the Agreement will not prevent an Authority from
subsequently requiring compliance with the waived obligation
24 GENERAL
24.1 Nothing contained or implied herein shall prejudice or affect the
Authorities rights and power, duties and obligations in the exercise of
their functions as local authorities and / or in any other capacity and all
rights, powers, discretions, duties and obligations of the Authorities
under all Laws may at all times be fully and effectively exercised as if
the Authorities were not party to this agreement and as if this
Agreement had not been made
24.2 No Authority shall represent itself as being an agent, partner or
employee of any other Authority except to the extent specified by this
Agreement
24.3 The Agreement shall be covered by the law of England and shall be
subject to the jurisdiction of the Courts of England and Wales
24.4 This Agreement is personal to the Authorities and no Authority shall
assign, transfer or purport to assign or transfer to any other person any
of its rights or sub contract any of its obligations under it
24.5 No person other than the Authorities shall be entitled to enforce any of
the terms of this Agreement under the Contracts (Rights of Third
Parties) Act 1999
24.6 Any notices required or permitted to be given by one Authority to any of
the other Authorities shall be in writing and addressed to the Chief
Executive of the other Authority at their principal office
Signed for and on behalf of BATH
AND NORTH EAST SOMERSET
COUNCIL
Signature: ............................................
Name: ............................................
Position: ............................................
Date: ............................................
Page 18 of 26
Signed for and on behalf of DEVON
COUNTY COUNCIL
Signature: ............................................
Name: ............................................
Position: ............................................
Date: ............................................
Signed for and on behalf of NORTH
SOMERSET COUNCIL
Signature ............................................
Name ............................................
Position ............................................
Date ............................................
Signed for and on behalf of
SOMERSET COUNTY COUNCIL
Signature ............................................
Name ............................................
Position ............................................
Date ............................................
Signed for and on behalf of TORBAY
COUNCIL
Signature ............................................
Name ............................................
Position ............................................
Date ............................................
Page 19 of 26
SCHEDULE A
PROGRAMME COST SHARING SCHEME
These Authorities shall commit the following sums over a four year period as
a maximum contribution to the revenue costs of the Programme:
B&NES £175,000
DEVON £1,000,000
NORTH SOMERSET £250,000
SOMERSET £1,000,000
TORBAY £50,000
These Authorities shall commit the following sums over a four year period as
a maximum contribution to the capital costs of the Programme:
B&NES £690,000
DEVON £10,000,000
SOMERSET £10,000,000
All figures exclude VAT, and in the event of a change in VAT legislation over
the life of the Programme, VAT liabilities are excluded in this Agreement
Revenue contributions shall be paid quarterly in arrears from the date of this
Agreement, backdated to 1 April 2011, based on total expenditure incurred in
that quarter and apportioned to each authority according to the proportion of
total revenue contributions. Sums shall become payable on receipt of a valid
invoice from the Lead Authority. When an Authority’s contribution level has
been reached that Authority shall have no further liability to make any
payment in connection with this agreement save in respect of any indemnities
given in clause 9, 18 or otherwise. Authorities are free to make their
contributions in advance to the Lead Authority. In this event, the Lead
Authority shall hold such contribution separately and distinctly in an
earmarked reserve against future costs of the programme
Capital contributions shall be made promptly in accordance with the needs of
the Programme Agreements, and to support the payments schedule when
agreed with the Provider and BDUK
The Authorities acknowledge and agree:
1 that their contributions shall not be ring fenced to any particular project,
area or part of the Programme and that the decision of the Programme Board
as to how these contributions are to be spent shall be final
Page 20 of 26
2 that their contributions are not conditional on
a the achievement of 85% superfast and 100% improved connectivity
in any particular area
b a proportion of premises in any particular area receiving either
superfast or improved connectivity
c a definitive number of businesses in any particular area being
supported or trained
d one area being “rolled out” before another
e any Authority receiving funding to deliver a particular part of the
Programme in a particular area
3 that the Lead Authority will report financial performance to the Programme
Board on a regular basis, and will provide year-end statements of
contributions and expenditure
4 that the Programme does not have a formal contingency set aside. In the
event that officers involved in the Programme consider that the contributions
as set out above may become insufficient, then this will be reported to the
Programme Board for resolution
The revenue costs shall comprise of:
1 The Salary and on costs reasonably incurred by the Authorities as detailed
in the Local Broadband Plan in employing and supporting the Programme
Director and other officers calculated pro rata in respect of the time they
actually spend working on the Programme
2 Consultants Fees including but not limited to
Legal Advisors
Technical Advisors
PR Advisors
Marketing Advisors
Monitoring and Evaluation Advisors
Demand Stimulation Consultants
Skills Development Consultants
3 Costs incurred for the purposes of the Programme on the instruction of the
Lead Authority the Programme Board or the Programme Director
Page 21 of 26
PROGRAMME LOSS / INCOME SHARING SCHEME
The proportion of contribution to Losses and / or Income under Clause 9 and
other relevant clauses of the Agreement is calculated from relative revenue
contributions:
B&NES 7.1%
DEVON 40.4%
NORTH SOMERSET 10.1%
SOMERSET 40.4%
TORBAY 2.0%
Elements of the Programme that would create liabilities after the Term of this
Agreement will become subject to a separate agreement
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SCHEDULE B
ROLE OF THE LEAD AUTHORITY
The Lead Authority shall
1 Negotiate the Grant Funding with BDUK
2 Complete and enter into the Programme Agreements
3 Oversee the Implementation of the Programme Agreements
4 Ensure compliance with the terms of the Programme Agreements
5 If necessary, enforce the terms of the Programme Agreements
6 Monitor and evaluate the processes and the outcomes of the Programme
7 Carry out project management during all phases of the Programme
including development, procurement, delivery and operation
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SCHEDULE C
FUNCTIONS OF THE PROGRAMME DIRECTOR AND PROGRAMME
MANAGER
The Programme Director is responsible for the overall co-ordination of the
Programme ensuring that the Programme is delivered effectively and on time
through out the Procurement Phase and through to the Delivery and Service
Phase .In particular she shall:
Be responsible for the overall co ordination and delivery of the Programme
through the Programme delivery team
Be the principal advisor on the Programme to the Programme Board, the
Authorities Cabinet Members Senior Officers and others as required .
Be responsible for all aspects of the Programme including budgets,
selection and supervision of external consultants
Provide formal and informal written and verbal reports to the Programme
Board, the Authorities and Officers of the Authorities
Manage and communicate major programme risks
Manage stakeholder involvement and expectations
Ensure the programme complies with contracting, procurement and
financial regulations
Carry out any other duties that are relevant to the scope and purpose of
the role as delegated by the Programme Board
The Programme Manager is responsible for the day to day running of the
Programme. General responsibilities include the coordination and
management of the Programme Team and working with the Programme
Director to report progress and issues to the Programme Board.
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SCHEDULE D
GOVERNANCE ARRANGEMENTS OF THE PROGRAMME BOARD
The Programme Board is responsible for monitoring and ensuring that the
Programme is delivered in accordance with the Local Broadband Plan
The Programme Board shall ensure that where significant variations risks or
changes are identified which may affect the successful delivery of the
Programme these matters are raised with the relevant Authorities in
accordance with their constitutions together with recommendations to vary the
Local Broadband Plan or alternative remedial action
In particular the Programme Board shall:
1 Facilitate the Local Broadband Plan across the Area, exercising through the
respective Executive Members of Devon and Somerset the powers of
delegation from these authorities. Where the Chief Executive of either Devon
or Somerset is of the view that in respect of a particular decision their
Executive Member does not have the necessary delegation then such
decision shall be referred back to that Authority’s Cabinet and taken in
accordance with that Authority’s constitution.
2 To monitor the implementation of the Programme against any approved
business case.
3 Ensure the Programme is properly managed.
4 Give direction to the Authorities in the implementation of the Programme
Meetings of the Programme Board
1 Programme Board membership is defined in Clause 8.
2 The Programme Board shall meet at least once every two months and at
such other times as may be necessary for the effective implementation of the
Programme
3 The Secretary to the Programme Board shall be the Programme Manager
4 Notices of meetings shall be sent out by the Secretary and shall include
such matters and reports as may be submitted by:
4.1 Any member of the Programme Board
4.2 A Statutory Officer of either Devon or Somerset
4.3 The Programme Director
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5 The Programme Manager shall produce a record of all the proceedings of
the Programme Board. Where any discussions at the Programme Board
result in a Cabinet Decision being required the Chief Executives of Devon and
Somerset shall ensure that such decisions are made in accordance with their
respective Authorities constitution
6 In addition to members of the Programme Board the following persons shall
be entitled to attend and speak at meetings of the Programme Board:
6.1 A Statutory Officer of Devon or Somerset
6.2 The Programme Director and Programme Manager
6.3 Any advisor or consultant involved in the Programme
6.4 Any Member, Official, Officer or Employee of the Authorities that
are not represented on the Programme Board.
6.5 Any Contractor to any Programme Agreements
7 It is the intention of the Programme Board that any decision made by it
should be made by consensus. Where it has not been possible to reach a
consensus a vote will be taken. Voting rights shall be as follows:
Bath and North East Somerset Council 1 Vote
BDUK 2 Votes
Devon County Council 2 Votes
North Somerset Council 1 Vote
Somerset County Council 2 Votes
with the Chair exercising an extra casting vote if needed.
8 Commencing in March 2012 the Chair of the Programme Board shall rotate
on a six monthly basis between Devon County Council and Somerset County
Council.
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SCHEDULE E
LOCAL BROADBAND PLAN AND ADDENDA
1. Local Broadband Plan April 2011, revised June 2011
2. Addendum to Local Broadband Plan to incorporate Bath and North
east Somerset, dated 18 April 2012