FOI request reveals Wirral Council issued 168 Fixed Penalty Notices (mainly for alleyway dumping)

FOI request reveals Wirral Council issued 168 Fixed Penalty Notices (mainly for alleyway dumping)

FOI request reveals Wirral Council issued 168 Fixed Penalty Notices (mainly for alleyway dumping)

                                                           

Wirral Council Environmental Streetscene Services Contract page 122 Schedule 2 - Nominees to the Partnering Agreements

Yesterday, Wirral Council responded to a Freedom of Information Act request I made last month for minutes of the meetings of the Partnering Board (which comprises of Wirral Council and Biffa Waste Services Limited) for the last year.

The minutes of the Partnering Board meetings of the 10th March 2015, 18th December 2014, 21st October 2014 and 14th July 2014 contain some interesting information.

Below are extracts from the minutes that hopefully will be of wider public/political interest starting with the meeting held on the 14th July 2014. I have submitted an internal review request to Wirral Council for the minutes without the names of Wirral Council employees redacted. RE stands for Roger Edwards, FPN stands for fixed penalty notices, MS stands for Mark Smith, Cllr BM for Councillor Bernie Mooney and VO stands for variation order.

2. ANNUAL REVIEW
….
Noted garden waste has now exceeded last year’s figure and hope to get to 40,000 properties. RE queried about incentives for signing up however XX noted we have to be very careful as the £5 reduction online has raised objections by some residents and opposition members and that XX is exploring alternative cost effective payment mechanisms. However, XX advised we can market to people who signed up last year who have not signed up this year and there are around 3,000 who have not re-signed.

Street Cleansing
….
The Entry Investigation Team has been introduced and 28 FPNs have been issued as a result of this.

7. AOB

Possible Industrial Action Update
RE updated that Biffa offered pay settlement to the workforce of 1.8% in line with RPI – the request from the workforce was 6%. RE advised the workforce have decided to ballot for industrial action before any decision made. RE is working hard to resolve this situation. The industrial action is planned for Fri 18 July.

There are parts of the minutes of the meeting held on the 21st October 2014 that will be of wider interest too:

Managing Down Demand – Missed Collections

XX have been looking at all the missed bin calls we had in for 2010-14 and the breakdown of unjustified (which was about half) to give an idea of the proportion of calls coming in. The 3 main reasons for unjustified bins are: bin not out, entry work and access issues. Disputes occur where resident is told the PDA said bin not out and they disagree. XX wants to look at the dispute figures and drill down i.e. is it the resident at fault, is it the crew not using the PDA properly etc. When a resident does not agree with PDA data this causes a lot of work in the back office. There could be an education issue here reminding residents that 7am is the time rounds start and the crews can come to roads at different times each week.

If we do some re-training around contamination to show the importance of the PDA and show the impact of not using the PDA correctly that should be beneficial. RE noted if we do not have confidence in the PDA data then everything else becomes difficult.”


Alleyway Dumping

XX advised had over 600 referrals for the Waste Investigate Unit (WIU) and issued 168 FPNs to mainly the Seacombe/Birkenhead areas. XX noted we need to do some work around where issuing the FPNs. 5 court cases regarding litter have gone well with the offenders being fined and this information is on the Council website. XX hoping to do full leaflet drop to relevant properties to say what we are doing and what success we have had. Currently drafting up a second leaflet to get out before Christmas to all terraced properties to highlight the good work we have been doing.

XX noted some new anti-social behaviour laws which are coming out and she is looking if we can go down this route with landlords. XX going to be looking at the licensing scheme and if we can make that work for us by adding in further conditions (Selective Licensing scheme). MS noted when speak to Senior Members of the Council enforcement is now an issue they are behind it. Noted 260 good neighbourhood packs have gone out to a variety of areas.”

From the meeting held on the 18th December 2014:

Alleyway Dumping

XX advised the Waste Investigation Unit are doing a fantastic job. XX noted an incident where a disgruntled member of the public, because of his threatening behavior, was issued with an ASBO. Main issue is the Courts are only letting us take 5 cases a week. Legal services need to approach the courts to get more time to hear more cases. XX plans to do another leaflet drop after Christmas to highlight to the public the financial costs of failing to manage their waste responsibly, or through ignoring fixed penalty charges. XX next steps are to meet the selective licensing team. Birkenhead and Seacombe have been identified as a selective licensing areas which means we can prescribe to landlords what they must do re bins and as Birkenhead and Seacombe are where the most is, it is hoped this will have a significant impact over time.”

Transparency Code

The code is about being more transparent about what we publish for the public to see and waste collection is one of the things requiring more details including publishing a version of the contract. XX are going to look at refreshing the contract, redacting certain bits and then send to Biffa to consider. Agreed a good idea would be a half day session with both parties to look at updating and modernizing the contract.”

Finally from the meeting held on the 10th March 2015.

Action Log

50 Street Cleansing Transitional Money

MS advised there is £116,000 available. XX is currently working on a briefing note recommending how that money could be used. MS has the authority to spend this money however he would get endorsement from Cllr BM first.

64 Benchmarking Data

XX advised some of the information required is deemed as commercially sensitive and there is a strong reluctance to share this information at the moment. MS felt we do need to be getting to a stage where we have the mechanism in place to demonstrate value for money from this contract. XX also safeguard the financial position of Biffa. XX to send through further details to XX & SC showing exactly what it is we are looking for.

67. Contract under the Transparency Code

XX has started this piece of work. By the end of April we have to publish the contract on Council website. XX noted his intention to incorporate the VOs and XX send to Biffa to redact the finance. XX commented that there are inaccuracies in the contract in relation to execution on the ground but nothing of serious concern. MS noted as we are signing off a significant VO if there are any anomalies we need to resolve them before we publish.

CONTRACT PERFORMANCE OVERVIEW

SC queried whether there had been any thought about the garden waste service passing to Biffa? MS advised if Biffa want to put an offer to the Council formally they were welcome to.

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18 more pages of the Wirral Council Schools PFI contract including the Bebington High headlease

18 more pages of the Wirral Council Schools PFI contract including the Bebington High headlease

18 more pages of the Wirral Council Schools PFI contract including the Bebington High headlease

                                                  

Wirral Council has a Schools PFI contract with Wirral Schools Services Limited. The contract is very long, too long to fit in one blog post.

The first 17 pages of the contract have been previously published here, followed by the next 6 pages and the next 38 pages of the mammoth contract here.

What I scanned in today was part of one of the schedules about land. Included below is the Bebington headlease along with the index page for the schedules.

Wirral Borough Council Wirral Schools Services Limited PFI contract cover page
Wirral Borough Council Wirral Schools Services Limited PFI contract cover page

CONFORMED COPY

(1) WIRRAL BOROUGH COUNCIL

(2) WIRRAL SCHOOLS SERVICES LIMITED


SCHEDULES VOLUME 1

(SCHEDULES 1-3)


Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 1 (Land) to Schedule 3 (Works) page 1 of 4
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 1 (Land) to Schedule 3 (Works) page 1 of 4

CONFORMED COPY

INDEX OF SCHEDULES

SCHEDULE     HEADING
SCHEDULE 1 LAND
Part 1 Bebington Headlease
Part 2 Hilbre Headlease
Part 3 Park High Headlease
Part 4 Prenton High Headlease
Part 5 South Wirral High Headlease
Part 6 Wallasey Headlease
Part 7 Not used
Part 8 Weatherhead Headlease
Part 9 Wirral Girls Headlease
Part 10 Bebington Underlease
Part 11 Hilbre Underlease
Part 12 Park High Underlease
Part 13 Prenton High Underlease
Part 14 South Wirral High Underlease
Part 15 Wallasey Underlease
Part 16 Not used
Part 17 Weatherhead Underlease
Part 18 Wirral Girls Underlease
Part 19 Plans
SCHEDULE 2 FINANCIAL MATTERS
Part 1 Lender’s Direct Agreement
Part 2 The Council’s Design and Building Contract Direct Agreement
Part 3 The Council’s Support Services Management Direct Agreement
Part 4 Design and Building Contract Performance Guarantee
Part 5 Support Services Management Agreement Performance Guarantee
Part 6 Initial Senior Funding Agreements
Part 7 Other Initial Funding Agreements
Part 8 Rules for Refinancing
SCHEDULE 3 WORKS
Part 1 Design Development Procedure
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 3 (Works) to Schedule 9 (Insurance) page 2 of 4
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 3 (Works) to Schedule 9 (Insurance) page 2 of 4
Part 2 Prohibited Materials
Part 3 Schedule of Key Dates
Part 4 Outline Design Documents
Part 5 The Completion Standards
Part 6 Decant Programme Methodology
Appendix 1 Decant Programme: Park High
Appendix 2 Decant: Further Obligations
Part 7 Handback Requirements
Part 8 Project Programme
Part 9 Construction Site Rules
Part 10 Handback Survey
SCHEDULE 4 PAYMENTS
Part 1 Definitions
Part 2 Services Contract Payment
Part 3 Performance Deduction Look-Up Table
Part 4 Table of Service Units per School
Part 5 Monitoring
Part 6 Utility Services
Part 7 Third Party Use
Part 7A Catering
Part 8 Value for Money Testing
Appendix 1 Form of Performance and Payment Report
SCHEDULE 5 ACCOMMODATION SERVICES OUTPUT SPECIFICATIONS
SCHEDULE 6 SUPPORT SERVICES OUTPUT SPECIFICATIONS
Part 1 Building and Asset Maintenance Output Specification
Part 2 Support Service Requirements and Performance Tables
Part 3 Service Level Agreements
Part 4 Service Level Agreements Alteration Procedure
SCHEDULE 7 REPORTS AND RECORDS
Part 1 Reports
Part 2 Records
SCHEDULE 8 VARIATIONS
Variation Notice
SCHEDULE 9 INSURANCE
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 9 (Insurance) to Schedule 19 (Admission Agreements and Bonds)  page 3 of 4
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 9 (Insurance) to Schedule 19 (Admission Agreements and Bonds) page 3 of 4
Part 1 The Part 1 Insurance Period
Part 2 The Part 2 Insurance Period
Appendix 1 Endorsements
Appendix 2 Broker’s Letter of Undertaking
Appendix 3 Business Interruption Insurance – the Authority’s Obligations as Insurer
Appendix 4 Schedule of Insured Parties
SCHEDULE 10 LIAISON COMMITTEE
SCHEDULE 11 COMPENSATION ON TERMINATION
Part 1 Definitions
Part 2 Project Co Default
Part 3 Authority Default
Part 4 Notice by the Authority
Part 5 Force Majeure, Uninsurability and Planning Challenge
Part 6 Corrupt Gifts
SCHEDULE 12 DISPUTE RESOLUTION
SCHEDULE 13 SENIOR REPRESENTATIVES
SCHEDULE 14 COMPENSATION EVENTS
SCHEDULE 15 METHODOLOGY FOR ASBESTOS
Appendix 1 MB Wirral Policy
Appendix 2 Asbestos Survey Risk Assessment
SCHEDULE 16 LIQUIDATED DAMAGES
SCHEDULE 17 QUALITY SYSTEMS
Part 1 Design and Build Period Quality System
Part 2 Operational Period Quality System
Appendix A Quality Policy
Appendix B Certificate of Approval
Appendix C Proposed QA Implementation Plan
Appendix D Contact Directory
Appendix E Local Procedures
SCHEDULE 18 EMPLOYEES
Part 1 Employee Information
Part 2 Terms and Conditions of Employment
SCHEDULE 19 ADMISSION AGREEMENTS AND BONDS
Part 1 Jarvis Workspace FM Limited
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 19 (Admission Agreements and Bonds) to Schedule 24 (New Moveable Equipment Schedule of Rates)  page 4 of 4
Wirral Borough Council Wirral Schools Services Limited PFI contract Index of Schedules Schedule 19 (Admission Agreements and Bonds) to Schedule 24 (New Moveable Equipment Schedule of Rates) page 4 of 4
Part 2 Compass Group PLC
Part 3 MTL Commercial Limited
SCHEDULE 20 STAFF SECURITY PROTOCOL
SCHEDULE 21 OPERATIONAL SITE RULES
SCHEDULE 22 DRAFT TRANSITIONAL SERVICES AGREEMENT
SCHEDULE 23 CITY LEARNING CENTRE
SCHEDULE 24 NEW MOVEABLE EQUIPMENT SCHEDULE OF RATES
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 1 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 1 of 13

SCHEDULE 1

LAND

Part 1

Bebington Headlease

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 2 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 2 of 13

DATED                2001


(1) WIRRAL BOROUGH COUNCIL

(2) WIRRAL SCHOOLS SERVICES LIMITED


HEADLEASE

-of-

Bebington High School, Bebington Road

Bebington, Merseyside


THIS LEASE IS A NEW TENANCY FOR THE

PURPOSES OF THE LANDLORD AND TENANT

(COVENANTS) ACT 1995

ROWE & MAW

20 Black Friars Lane

London EC4V 6HD

Tel: 020 7248 4282

Fax: 020 7248 2009

Ref: 709/476/27909.00001

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 3 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 3 of 13

CONTENTS

Clause Subject Matter Page
     
1. Definitions and Interpretation 4
2. Demise and Rents 6
3. Tenant’s Covenants 6
4. Landlord’s Covenants 8
5. Agreements and Declarations 8
6. New Tenancy 9
Schedule 1 (The Premises)
Schedule 2 (Easements and Rights granted)
Schedule 3 (Rights excepted and reserved)
Schedule 4 (The documents (if any) containing incumbrances to which the Premises are subject)
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 4 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 4 of 13

THIS LEASE made the        day of        2001

BETWEEN:

WIRRAL BOROUGH COUNCIL of Town Hall, Brighton Street, Wallasey, Wirral, Merseyside, CH44 8ED (the “Landlord”); and

WIRRAL SCHOOLS SERVICES LIMITED having its registered office at Frogmore Park, Watton-at-Stone, Hertfordshire SG14 3RU (registration number 4115637) (the “Tenant”).

WITNESSES as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this lease the following expressions have the respective specified meanings (subject to any particular interpretation required by clause 1.2):

“Adjoining Premises” means any land or buildings neighbouring or adjoining or adjacent to the Premises;

“Buildings” means the buildings now or hereafter during the Term at the Premises and “Building” means any one of them;

“Permitted Use” means use of the Premises to comply with the obligations and exercise the rights of the Tenant under the Project Agreement;

“Perpetuity Period” means the period of eighty years from the date hereof which is the perpetuity period applicable to this lease;

“Plan” means the plan attached hereto;

“Premises” means the Premises described in Schedule 1;

“Project Agreement” means the agreement entitled Project Agreement made between (1) the Landlord and (2) the Tenant dated                              and as varied from time to time under Clause 32 thereof or supplemented or any other agreement superseding that agreement or substituted for that agreement and in either case expressed to be made subsequent to it;

“Rent” means a peppercorn, if demanded, per annum;

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 5 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 5 of 13

“Service Media” means all sewers drains pipes gullies gutters ducts mains channels wires cables conduits flues and any other conducting media;

“Services” means soil water electricity gas compressed air telecommunications signals and other liquids gasses or signals capable of passing along or through Service Media; and

“Term” means a term of 30 years from and including the date hereof subject to the provisions for the prior determination of the Term hereinafter contained;

1.2 Interpretation

(1) Words importing the singular include the plural and vice versa and words importing one gender shall include both genders.

(2) Where a party comprises more than one person covenants and obligations of that party take effect as joint and several covenants and obligations.

(3) A covenant by the Tenant not to do (or omit) any act or thing also operates as a covenant not knowingly to permit or suffer it to be done (or omitted) and to prevent (or as the case may be to require) it being done.

(4) References in this lease to:

(a) any clause sub-clause schedule or paragraph is a reference to the relevant clause sub-clause schedule or paragraph of this lease and clause and schedule headings shall not affect the construction of this lease;

(b) the Premises shall be construed as extending to any part of the Premises and shall include all and each and every part of any:

(i) Buildings from time to time thereon;

(ii) Service Media within the Premises and exclusively serving the Premises;

(iii) additions alterations and improvements thereto; and

(iv) Landlord’s fixtures and fittings therein;

(c) any statute (whether generally or specifically) shall include all derivative instruments orders regulations and in each case any re-enactment or modification thereof from time to time.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 6 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 6 of 13

2. DEMISE AND RENTS

Subject to compliance by the Tenant with its obligations under the Project Agreement the Landlord DEMISES unto the Tenant ALL THAT the Premises TOGETHER WITH the easements and rights (in common with the Landlord and all others with its authority or otherwise from time to time entitled thereto) specified in Schedule 2 which shall enure for the benefit of the Tenant and all those expressly authorised by the Tenant EXCEPT AND RESERVING to the Landlord and all other persons from time to time entitled to the rights mentioned in Schedule 3 TO HOLD the Premises unto the Tenant for the Term SUBJECT to:

(a) the provisions contained or referred to and rights granted to any party in the documents specified in schedule 4 insofar as they relate to the Premises;

YIELDING AND PAYING therefor during the Term to the Landlord the Rent payable annually in advance the first payments being made on the date hereof.

3. TENANT’S COVENANTS

The Tenant COVENANTS with the Landlord:

3.1 Pay rent

To pay the Rent without deduction set-off or counterclaim at the times and in the manner aforesaid.

3.2 Use

Not to use the Premises for anything other than the Permitted Use.

3.3 Easements

(1) Not to obstruct any window or light or abandon any easements from time to time enjoyed by the Premises.

(2) To give immediate written notice to the Landlord of any encroachment on or circumstances which might result in the acquisition of any easement or other right over the Premises and at the Tenant’s expense to take or join in such proceedings or take such other steps as the Landlord may require to prevent any such acquisition.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 7 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 7 of 13

3.4 Incumbrances

To comply with all covenants and other matters relating to the Premises (and in particular those contained or referred to in the documents specified in schedule 4) so far as they are enforceable and still subsisting.

3.5 Alienation

(a) The Tenant shall not assign, underlet, charge, hold on trust for another, part with or share possession or occupation of the whole or any part or parts of the Premises except as may be permitted or required by this lease. For the avoidance of doubt, nothing in this Clause 3.5(a) shall prevent the Tenant from charging the whole of the Premises in favour of any person providing funding under the Funding Agreement (as defined in the Project Agreement) from time to time.

(b) Notwithstanding the terms of Clause 3.5(a) the Tenant must assign the whole of the lease to a permitted assignee of the Tenant’s interest under the Project Agreement, such assignment of this lease to take place simultaneously with the assignment of the Project Agreement.

(c) The Tenant shall not underlet any part or the whole of the Premises without the consent of the Landlord save that the Tenant shall be permitted to grant an underlease of the whole of the Premises to the Landlord on the date hereof in the form of the underlease annexed to the Project Agreement.

3.6 Overriding lease

If at any time during the Term the Landlord shall grant a tenancy of the reversion immediately expectant on the determination of this lease whether persuant to section 19 Landlord and Tenant (Covenants) Act 1995 or otherwise any covenant on the part of the Tenant to obtain the consent of the Landlord under this lease to any dealing shall be deemed to include a further covenant also to obtain the consent of the lessor under such tenancy to such dealing.

3.7 Permit Entry

To permit the Landlord and any others authorised by the Landlord to enter the Premises on reasonable notice at reasonable times (except in emergency) to ascertain that the covenants on the part of the Tenant in this lease are being observed and performed and to enable the Landlord to exercise his rights or fulfil its obligations

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 8 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 8 of 13

under the Project Agreement subject to complying with the obligations of the Landlord under the Project Agreement.

3.8 Project Agreement

The parties to this lease agree that where the provisions of this lease and the Project Agreement conflict, the terms of the Project Agreement shall prevail.

4. LANDLORD’s COVENANT

The Landlord covenants with the Tenant that the Tenant paying the rents and complying with its obligations under this lease and the Project Agreement may peaceably hold and enjoy the Premises during the Term without any interruption by the Landlord or any person lawfully claiming through under or in trust for it.

  1. AGREEMENTS AND DECLARATIONS

PROVIDED ALWAYS AND IT IS AGREED AND DECLARED

5.1 Exclusions

(1) The Tenant shall not have the benefit of any easement right or privilege other than those expressly hereby granted.

(2) Any rights granted or reserved by this lease in respect of anything which does exist at the date hereof shall be effective only if it comes into existence before the expiry of the Perpetuity Period.

(3) The Landlord gives no express or implied warranty that the Permitted Use will be or remain a lawful or authorised use under the Planning Acts or otherwise.

(4) So far as the law shall allow the right of the Tenant (or any undertenant) to compensation on quitting the Premises is excluded.

5.2 Notices

Clause 54.10 of the Project Agreement shall apply in respect of any notices or other communications served or required to be served hereunder.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 9 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 9 of 13

5.3 Termination

If the Project Agreement is terminated for any reason or expires the Term shall automatically determine without notice but without prejudice to any claim by one party in respect of any antecedent breach of any obligation of the other under this lease.

5.4 Exclusion of Landlord and Tenant Act 1954

Having been authorised to do so by an order of the            Court made on            under section 38(4) of the Landlord and Tenant Act 1954 (as amended) the parties agree that the provisions of sections 24 to 28 inclusive of the Landlord and Tenant Act 1954 (as amended) shall be excluded in relation to the tenancy hereby created.

  1. NEW TENANCY

This lease is a new tenancy for the purposes of the Landlord and Tenant (Covenants) Act 1995.

IN WITNESS whereof this lease has been duly executed as a deed (but not delivered until) the day and year first above written.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 10 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 10 of 13

SCHEDULE 1

(The Premises)

The land and buildings and structures known as Bebington High School Higher Bebington Road Bebington Merseyside shown for the purpose of identification only edged in red on the Plan.

SCHEDULE 2

(Easements and Rights granted)

1. Subject to the Tenant not interfering with any rights granted to any tenant under any lease existing at the Execution Date full right and liberty at any time at the cost of the Tenant to divert (both to the whole and any part of it) the route of any Service Media which the Landlord has the right to use pursuant to Schedule 3 of this Lease whether temporarily or permanently provided that:-

1.1 the Tenant shall give reasonable prior written notice of any such diversion to the Landlord and any other person so entitled;

1.2 all works of diversion shall be carried out in a proper and workmanlike manner in accordance with good practice current at the time and with good quality suitable and sufficient materials as to provide the Landlord and any other person so entitled with Service Media of at least equivalent size quality and capacity to those with are being diverted;

1.3 so far as possible the passage or running of the Services through such Service Media shall not be disrupted and the Tenant will provide temporary arrangements during any period of diversion of permanent Service Media.

2. A right to build upon and to demolish maintain repair replace and renew any buildings upon the Premises to enable the Tenant to comply with or perform its obligations and exercise its rights under the Project Agreement.

3. A right of support and shelter for the Premises from any Adjoining Premises owned by the Landlord.

4. A right (subject to the provisions of paragraph 1 of this Schedule) to the free and uninterrupted passage and running of all services from and to the Premises through and

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 11 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 11 of 13

along all Service Media from time to time within but not exclusively serving any Adjoining Premises.

SCHEDULE 3

(Rights excepted and reserved)

1. A right for the Landlord and all those authorised by the Landlord to enter upon the Premises for the purpose of fulfilling any obligations on the part of the Landlord pursuant to the Project Agreement and for all purposes mentioned in this lease but subject to complying with the obligations of the Landlord in the Project Agreement.

2. A right (subject to the provisions of paragraph 1 of Schedule 2 of this Lease) to the free and uninterrupted passage and running of all services from and to any Adjoining Premises through and along all Service Media from time to time within but not exclusively serving the Premises.

3. A right for the Landlord and all those authorised by the Landlord to enter those parts of the Premises which are not built upon at all reasonable times (having regard to the Tenant’s obligations under the Project Agreement) on giving reasonable notice (except in emergency) and the right to inspect construct lay maintain repair replace alter or renew any Service Media and to make connections to any Service Media within the Premises the person exercising this right doing as little damage and causing as little inconvenience as possible and making good any damage to the Premises thereby occasioned and carrying out all works in a proper and workmanlike manner in accordance with good practice current at the time and with good quality suitable and sufficient materials and at no time shall the exercise of the Landlord’s rights under this paragraph 3 interfere with the Tenant’s obligations under the Project Agreement.

4. All rights of light or air now subsisting or which might (but for this exception) be acquired over any other land.

5. A right to build upon and demolish maintain repair replace and renew any buildings upon any part of any Adjoining Premises owned by the Landlord and any other land owned by the Landlord in such manner as the Landlord may think fit.

6. A right of support and shelter from the Premises for any Adjoining Premises owned by the Landlord.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 12 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 12 of 13

Schedule 4

(The documents containing incumbrances to which the Premises are subject)

The rights, reservations, covenants and other matters referred to in the Registers of Title Number MS435412.

Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 13 of 13
Wirral Borough Council Wirral Schools Services Limited PFI contract Schedule 1 Land Part 1 Bebington Headlease page 13 of 13

THE COMMON SEAL of WIRRAL )
BOROUGH COUNCIL )
was affixed to this Deed in the )
presence of
: )

…………………………………….
As authorised officer

THE COMMON SEAL of WIRRAL )
SCHOOL SERVICES LIMITED )
was hereunto affixed in the presence of:)

Director

Director/Secretary

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EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake

EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake

EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake

                                                                          

Surjit Tour (left) at a recent meeting of Wirral Council's Standards and Constitutional Oversight Committee
Surjit Tour (left) at a recent meeting of Wirral Council’s Standards and Constitutional Oversight Committee

The background to this story is that last year Wirral Council accidentally divulged to me around two hundred people’s names, dates of birth, national insurance numbers, job titles and whether they were in the Merseyside Pension Fund (that Wirral Council administers) or not.

This is my response to Wirral Council (and ICO on this matter).

Dear Surjit Tour, Caroline Flint (ICO) and others,

Thank you Mr. Tour for your letter of 28th April 2015 (your reference ST/CG) and the email from ICO’s Caroline Flint dated 30th April 2015 (ICO case reference number RFA0568370). As both communications cover the same topic I am writing this joint response in reply.

I will deal first with an error in the response in the email from ICO. The first sentence in that email states “Thank you for raising your concern with us about Wirral Metropolitan Borough Council’s (Wirral MBC’s) handling of your personal data.”

None of the personal data that this matter relates to is about myself.

Moving to Mr. Tour’s letter of the 28th April 2015, paragraph 2 correctly states that I requested “eight lengthy contracts/leases” (one of which is the PFI contract with Wirral Schools Services Limited that this matter relates to).

Although not implicitly stated, it is implied that I was provided with eight lengthy contracts/leases and that this request “did impose a considerable strain on the officers”.

However four were not provided (the BAM Nuttall contract came into effect during the 2014/15 financial year, the development agreement (dated 9/1/2008) and bond (dated 6/10/2008) with Pochin Land and Development Limited (relating to the Birkenhead ASDA Compulsory Purchase Order) was refused and so was Wirral Council’s agreement with Neptune Developments with regards to the Birkenhead Masterplan proposals).

Two leases were provided (I would estimate each at being around 200 pages long). Two contracts were also provided (including the PFI contract) which are each around 500-1000 pages long. In the case of one of the leases (the New Brighton Marine Point lease) two entire copies of the lease were provided (when I only asked for one). As one of the two copies provided of that lease has a Land Registry official copy stamp on it (so presumably the copying was done by Land Registry) I would respectfully point out that the “considerable strain on the officers” referred to in your letter in making a second copy of that lease (then providing a second copy of that lease to myself with the Land Registry copy) was unnecessary.

In the last sentence of your letter you refer to Regulation 9 of the Accounts and Audit (England) Regulations 2011 which requires the documents to be made available for public inspection twenty working days before the date appointed by the auditor for local government electors to exercise their rights to either ask questions or make an objection.

For the 2013/14 audit, this date was the 18th August 2014. Therefore in order to comply with the regulations the documents should have been made available in the twenty working days leading up to the 18th August 2014 (which was the 21st July 2014 to the 15th August 2014).

As specified in your letter the PFI contract was available for inspection by myself on the 12th September 2014 (a month later than the timescale in the legislation you refer to). The copy of the PFI contract I was given on the 12th September 2014 was incomplete and it was the following month before I received the missing pages of the contract (which was after the accounts for that year had been closed by the auditor).

There were similar problems with the member expense forms as those given to me in September 2014 were also incomplete (or related to the wrong financial year) with the rest given to me in October 2014.

Therefore as the information was provided a month (or in some cases two months) later than the legislation specified I dispute your assertion that “The difficulties were compounded by the short timescales permitted by Regulation 9 of the Accounts and Audit (England) 2011 to produce the documents you had requested that related to the accounts of the Council”.

Had the documents been open for inspection and I had received copies prior to the 18th August 2014 (in compliance with the regulation you refer to) I would agree with you, however they were not.

Moving to the points made in page three of your letter, I was unaware (until I read your letter) of the existing right of inspection to admission agreements under schedule 2 Part 3 paragraph 11 of the Local Government Pension Scheme Regulations 2013.

I refer you to one of the admission agreements in the PFI contract specifically Schedule 19, Part 3, page 4/5 of the PFI Contract:

“3 (i) The Administering Authority shall from the date referred to in paragraph (ii) of this clause admit to participate in the benefits of the Scheme every employee of the Transferee Admission Body –

(a) whose name appears in the List annexed to this Agreement where he is identified as being a member of the Scheme by virtue of being an employee of the Administering Authority (hereinafter referred to as “the List”) or

(b) whom, by notice in writing given to the Administering Authority, the Transferee Admission Body may from time to time nominate provided that any person so nominated must be eligible to become a member of the Scheme.”

The Administering Authority referred to is Wirral Council. Therefore the list of names, dates of birth, job descriptions, NI numbers is of former Wirral Council staff whose employer was changed from Wirral Council to that of the PFI contractor.

You state in the second paragraph on page 3 “The amount of any such deficit would be determined by such factors as salary and age of the employee”. However the list does not include salary details of employees. Therefore as this information does not form part of the admission agreement or annexed list I dispute your statement that “That information would therefore be relevant to any assessment of the financial risk to the Council brought about by the PFI Contract.”

I might also point out that the admission agreement refers to a bond or indemnity with an insurer (Schedule 18 Parts 3 pages 14-17) to cover this sort of situation which reduces the risk of such liabilities falling on Wirral Council. Unfortunately the name of the insurer is not provided on the copy of the contract I have but the admission agreement states this insurance is to a limit of £67,000 (for that admission agreement which is one of three in the contract).

As I am publishing this response to ICO and Mr. Tour, I am also publishing the email from ICO that it refers to and the letter from Mr. Tour.

I have made a determination as data controller (see s.32 of the Data Protection Act 1998) that having regard to the special importance of the public interest in freedom of expression, the fact that I’m publishing my response (which could lead to confusion unless the email from ICO and letter from Wirral Council is also published at the same time), ICO’s view that Wirral Council breached the Data Protection Act 1998 as well as other reasons, that it is in the public interest for these documents to be published.

Finally, although I appreciate your point about whether s.34 of the Data Protection Act 1998 applies to the list is a matter for Wirral Council and ICO to come to a view on, at the very least there appears (from my perspective) to have been maladministration on the part of Wirral Council.

Providing documents requested during the audit outside the timescales you referred to in your letter and indeed in some cases after the accounts were closed prevented me from exercising my right to object to the auditor or to ask questions of the auditor before the accounts were closed at the end of September 2014.

As you are Monitoring Officer for Wirral Council, I draw your attention to section 5A of the Local Government and Housing Act 1989 and the duty of a Monitoring Officer to write a report (circulated to all councillors, the Chief Executive and the Chief Financial Officer) and for this report to be considered at a future Cabinet meeting within a set time period if there has either been a contravention of any enactment or rule of law by the authority or maladministration. I therefore await your response as to whether you will be writing such a report.

Yours sincerely,

John Brace

=======================================================================

from: casework@ico.org.uk
to: john.brace@gmail.com
date: 30 April 2015 at 15:42
subject: Data Protection Concern: RFA0568370[Ref. RFA0568370]

30 April 2015

Case Reference Number RFA0568370

Dear Mr Brace

Thank you for raising your concern with us about Wirral Metropolitan Borough Council’s (Wirral MBC’s) handling of your personal data.

We want to know how organisations are doing when they are handling information rights issues. We also want to improve the way they deal with the personal information they are responsible for. Reporting your concerns to us will help us do that.

Our role is not to investigate or adjudicate on individual concerns but we will consider whether there is an opportunity to improve the practice of the organisations we regulate. We do this by taking an overview of all concerns that are raised about an organisation with a view to improving their compliance with the Data Protection Act 1998 (DPA).

From the information provided to us it does appear that Wirral Council has breached the DPA as it has acknowledged disclosing third party data in error. Wirral MBC has stated they have recovered the information disclosed inappropriately. They have also specified that requests made under the Audit Act in the future should not include any personal information which would enable particular individuals to be identified unless the requester can demonstrate that the disclosure is in the public interest to the extent that it should override the individual’s right to privacy.

It is now Wirral Metropolitan Borough Council’s responsibility to explain to us how it intends to improve its information rights practices in relation to reducing the possibility of such inappropriate disclosures in the future. Although we do not intend to write to you again, we will keep the concerns raised on file. This will help us over time to build up a picture of Wirral MBC’s information rights practices.

Thank you for bringing this matter to our attention.

If you are dissatisfied with the service you have received, or would like to provide us with feedback of any kind, please let me know. Further information can also be found on our website by following the following link https://ico.org.uk/concerns/complaints-and-compliments-about-us/complain-about-us/

Yours sincerely

Caroline Flint
Case Officer
01625 545 258


The ICO’s mission is to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

If you are not the intended recipient of this email (and any attachment), please inform the sender by return email and destroy all copies. Unauthorised access, use, disclosure, storage or copying is not permitted.
Communication by internet email is not secure as messages can be intercepted and read by someone else. Therefore we strongly advise you not to email any information, which if disclosed to unrelated third parties would be likely to cause you distress. If you have an enquiry of this nature please provide a postal address to allow us to communicate with you in a more secure way. If you want us to respond by email you must realise that there can be no guarantee of privacy.
Any email including its content may be monitored and used by the Information Commissioner’s Office for reasons of security and for monitoring internal compliance with the office policy on staff use. Email monitoring or blocking software may also be used. Please be aware that you have a responsibility to ensure that any email you write or forward is within the bounds of the law.
The Information Commissioner’s Office cannot guarantee that this message or any attachment is virus free or has not been intercepted and amended. You should perform your own virus checks.


Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

=======================================================================

Department of Transformation
and Resources
Joe Blott
Strategic Director for Transformation
and Resources

Town Hall, Brighton Street
Wallasey, Wirral
Merseyside, CH44 8ED
DX 708630 Seacombe
Website: www.wirral.gov.uk

date 28 April 2015

to John Brace
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
my ref ST/CG
service Legal and Member Services
tel 0151 691 8569
fax 0151 691 8482
email surjittour@wirral.gov.uk

Dear Mr Brace

DISCLOSURE OF PERSONAL INFORMATION IN ADMISSION AGREEMENT FORMING PART OF THE COUNCIL’S PFI CONTRACT

I refer to your letter of 19 January and to our subsequent meeting which culminated in your return of the personal information which was inadvertently disclosed to you when a copy of the PFI Contract was provided to you on 12 September 2014.

You will recall that in a written request dated 25 July 2014 you had exercised your right under Section 15 of the Audit Commission Act 1998 (“ACA”) to inspect and receive copies of over 300 invoices, eight lengthy contracts/leases and all member expense forms for 2013 and 2014. These documents related to the Council’s accounts for 2013/14.

The request for those documents did impose a considerable strain on the officers who were required to locate and copy those contracts after redacting commercially sensitive and personal information from those documents in accordance with the requirements of the Data Protection Act 1998 and Article 8 of the European Convention on Human Rights. Article 8, as you may know, requires a public authority to show respect for a persons private life and not to interfere with that right except as is in accordance with the law and is necessary (amongst other things) in the interests of the economic wellbeing of the country or for the protection of the rights and freedoms of others.

I should emphasise that the non-redaction of the personal pension information was not intentional. The information was overlooked amongst the thousands of pages of the documentation which you had requested under Section 15 of the ACA. The difficulties were compounded by the short timescales permitted by Regulation 9 of

www.wirral.gov.uk (LGC logo) Awards 2015 Winner Most Improved Council

the Accounts and Audit (England) 2011 to produce the documents you had requested that related to the accounts of the Council also by the sickness absence of one of the Council’s officers who was dealing with your request.

I have looked carefully into the legal consequences of the inadvertent disclosure of the personal information in the PFI Contract and have indeed taken Counsel’s advice on the matter. My conclusions are set out below.

Section 34 of the Data Protection Act 1998 contains an exemption from the requirement to comply with the non-disclosure provisions of the Act if any personal data consists of information which the Data Controller is obliged to make available to the public under any enactment.

The non-disclosure provisions are defined in Section 27 of the same Act and include the first data protection principle which requires Data Controllers to process personal data both fairly and lawfully.

If however the processing is necessary for compliance with any legal obligation to which the Data Controller is subject, then the requirement to process personal data fairly and lawfully does not apply.

The applicable legal obligation is Section 15 of the ACA which gives a right to any local government elector to inspect all contracts relating to the accounts which are to be audited. There is an exception for information which can identify a particular employee of the Council and also for personal information outside that description ie non-employees of the Council if the information enables a particular individual or individuals “to be identified and the Council’s Auditor considers that it should not be inspected or disclosed”.

In the particular circumstances of the PFI Contract the Auditor had not been requested to authorise non-disclosure. The volume of the documents running into several thousands of pages which you had requested rendered it simply impracticable within the short timescales to seek the Auditor’s opinion on whether the personal information should be disclosed. You must remember the context in which the personal information in the PFI Contract was inadvertently disclosed. It was one of many documents that had to be sifted for personal information and commercially sensitive information.

That however does not end the matter since there is a Judgment of the Court of Appeal in the case of Veolia ES Nottinghamshire Limited v Nottinghamshire County Council and Others 2010 EWCA CIV 1214 which decided that Section 15 of the ACA must be interpreted in a manner which is to ensure compliance by the Council with the rights conferred on individuals by the Human Rights Act 1998 and in particular the right to a private life contained in Article 8 of the European Convention on Human Rights to which I refer above.

The advice I have received is that Section 15 of the ACA should be interpreted in such a way that the Auditor’s prior consent to non-disclosure is not required where it would be impracticable to obtain that consent eg because of the volume of documents required to be submitted to him in the short period of time allowed by the Legislation for production of contracts which relate to the Council’s accounts.
It does not of course follow that the Council’s duty not to interfere with Article 8 Rights of the individuals named in the Admission Agreement of the PFI Contract automatically overrides your right as a local government elector to see that information if it formed part of the contract which you were entitled to inspect.

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There is a public interest that is to be considered which is that the local government elector or indeed a member of the public should normally enjoy full disclosure of information which is relevant to the Council’s true financial position and which would enable them possibly to detect any wrong doing by the Council or its employees.

In this regard I would draw your attention to Schedule 2 Part 3 paragraph 11 of the Local Government Pension Scheme Regulations 2013 which imposes an obligation on the Council to make a copy of an Admission Agreement available for public inspection at its offices. Details of the employees of the PFI Contractor who had been transferred to the contractors employment from the Council under the Transfer of Undertakings (Protection of Employment) Regulations are relevant to an assessment of the Council’s financial position. Under the Local Government Pension Scheme Regulations 2013 if a contractor were to default in his obligations to make pension contributions in respect of those employees or were to become insolvent, the Council would have to meet any deficit in the Pension Fund that arose as a result. The amount of any such deficit would be determined by such factors as salary and age of the employee. That information would therefore be relevant to any assessment of the financial risk to the Council brought about by the PFI Contract.

Furthermore such employees of the PFI contractor are only entitled to remain in the Local Government Pension Scheme if they continue to be employed in connection with the provision of the services comprised in the PFI Contract. Members of the public would need to know the identities of the contractors employees who were admitted to the Pension Scheme under the Admission Agreement in order to check whether they were continuing to work on the PFI Contract and therefore still entitled to remain in the Local Government Pension Scheme with the attendant financial risk to the Council and thereby council tax payers if the PFI contractor were to default in payment of pension contributions or become insolvent.

If therefore that personal information had been drawn to my attention l would have had to weigh in the balance the public interest in disclosing information relating to the Council’s financial position and the identity of employees who were only entitled to remain in the Pension Scheme whilst they remain employed on the PFI Contract, against the invasion of those members privacy if their identities, dates of birth, and national insurance numbers were made known to you.

I have to say that if I had been called upon to make that decision I would have redacted the personal information and not disclosed it to you unless you had been able to satisfy me that you required that information in circumstances which related to those aspects of the public interest to which l have referred above.

It is evident from the contents of your letter of 19 January and our subsequent meeting that you yourself do not believe that the public interest in disclosure of the identities of the members of the Pension Scheme in the PFI Contract was more potent than the respect which the Council is required to show for their privacy under Article 8. Your reasons for seeking disclosure of the PFI Contract had nothing to do with your concern over the Council’s financial exposure to potential deficits of PFI contractors in the Local Government Pension Scheme or to any concerns that the PFI employees who had been allowed to retain membership of the Local Government Pension Scheme were abusing that Scheme by retaining their membership when they were no longer working on the PFI Contract. You have acted responsibly by returning that personal information to me because you recognise that it did not serve the purpose you had in inspecting the PFI Contract in relation to the Council’s accounts for 2013/2014.

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In future I propose to ensure that future requests to inspect documents under the ACA should not include any personal information which would enable the identity of particular individuals to be ascertained unless you (or any person wishing to inspect the accounts) can demonstrate that the disclosure of that information is in the public interest to the extent that it should override the individuals right to privacy.

Finally I should add that as from 1 April 2015 Section 15 of the Audit Commission Act 1998 has been replaced by Section 26 of the Local Audit and Accountability Act 2014. Under that Act there is no longer a requirement for the Council to seek the prior consent of the Auditor before withholding any personal information in the documents relating to the Council’s accounts which a local government elector is entitled to inspect. It is a recognition by Parliament that the prior involvement of the Auditor is not workable having regard to the short timescale for inspection of the documents and the often voluminous nature of those documents. There are however transitional provisions which mean that the 1998 Act will continue to apply to the inspection of accounts for the year 2014/15.

I am sending a copy of this letter to the Information Commissioner so that he is made fully aware of the Council’s investigation into your complaint and the complicated legal framework within which the Council has to work particularly when it is confronted by a request from the public to inspect a large volume of documents.

Yours sincerely and signed on behalf of
Surjit Tour
Head of Legal and Member Services

(signature of Jane Corrin)

Jane Corrin
Information and Central Service Manager
Transformation and Resources

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The first 17 pages of Wirral Council's contract with Wirral Schools Services Limited

The first 17 pages of Wirral Council’s contract with Wirral Schools Services Limited

The first 17 pages of Wirral Council’s contract with Wirral Schools Services Limited

                           

Edited 13/11/2014 to correct “Wirral School Services Limited” to “Wirral Schools Services Limited”.

Below is the first 17 A4 pages of Wirral Council’s contract with Wirral Schools Services Limited. I requested it as part of the 2013/14 audit. Sadly it’s so long I’ll probably just have to scan the rest of it in or OCR it.

There are a further 114 pages in this section.

Private & Confidential

Dated 9th September 2004

WIRRAL BOROUGH COUNCIL (1)
WIRRAL SCHOOLS SERVICES LIMITED (2)

===================================================================================================================
DEED OF AMENDMENT AND RESTATEMENT relating to Wirral Schools PFI Project
===================================================================================================================

ADDLESHAW GODDARD

Contents
Clause Page

1 Interpretation ......................................... 1
2 Effective Date ......................................... 1
3 Amendment and restatement .............................. 2
4 Confirmation ........................................... 2
5 Variations, amendments and payments .................... 2
6 Release by the Authority ............................... 4
7 Release by Project Co .................................. 4
8 Governing law and dispute resolution ................... 4

Schedule

1. Conditions ............................................ 5
   Part 1 - Conditions to be satisfied by Project Co ..... 5
   Part 2 - Conditions to be satisfied by the Authority .. 6
2 Amendments to the Project Agreement .................... 7
3 Details of Variations referred to in clause 5.1 ........ 8
4 Schedule of Payments referred to in clause 5.2(b) ...... 9
5 Outstanding items ..................................... 10

2-1000834-13

This Deed of Amendment and Restatement is made on the 9th day of September 2004

Between

(1) Wirral Borough Council of Town Hall, Brighton Street, Wallasey, Wirral, Merseyside CH44 8ED (Authority); and (signature)

(2) Wirral Schools Services Limited, a company incorporated under the laws of England and Wales with registered number 4115637 whose registered office is at Frogmore Park, Walton-at-Stowe, Hertford SG14 3RU (Project Co).

Whereas

(A) The Authority has appointed Project Co under an agreement dated 27 March 2001 (Project Agreement) to finance, design and construct and to provide certain services in respect of certain schools in Wirral.

(B) The Authority and Project Co have agreed to vary the Project Agreement in the manner hereinafter appearing and to agree certain variations to the Project as hereinafter described.

It is agreed

1 Interpretation

1.1 In this Deed, but save as provided for by clause 1.2, the following expressions shall bear the following meanings:

D&B Deed of Amendment and Restatement means a deed of that name (or about) the same date as this Deed between Project Co and the D&B Contractor amending and restating the D&B Contract

Effective Date means the date upon which the parties confirm to each other in writing pursuant to clause 2.1 that the conditions set out in schedule 1 have been satisfied or waived

Revised Base Case Financial Model means the revision of the Base Case Financial Model as at the Effective Date in the Agreed Form

Subcontract Deeds of Amendment and Restatement means:

(a) the D&B Deed of Amendment and Restatement; and
(b) the Support Services Deed of Amendment and Restatement

Support Services Deed of Amendment and Restatement means a deed of that name of (or about) the same date as this Deed between Project Co and the Support Services Manager amending and restating the Support Services Management Agreement

1.2 Unless stated to the contrary in this Deed, words and phrases used in this Deed with initial capital letters but not defined herein shall have the meanings ascribed to them in the Project Agreement.

1.3 Unless stated to the contrary, references in this Deed to any clause or schedule or appendix are references to such clause or schedule or appendix of or to this Deed.

1.4 Words importing the single number only include the plural number and vice versa.

2 Effective Date

2.1 The provisions of clauses 3, 5 (save for the acknowledgements set out in clauses 5.2(b) and 5.2(d)), 6 and 7 shall have no effect unless and until:

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2-1000834-13

(a) the Authority shall have confirmed in writing to Project Co that all of the conditions set out in part 1 of schedule 1 shall have been satisfied or waived; and

(b) Project Co shall have confirmed in writing to the Authority that all of the conditions set out in part 2 of schedule 1 shall have been satisfied or waived.

2.2 Each of the Authority and Project Co shall use their respective best endeavours to procure that the conditions set out in clause 2.1 are satisfied as soon as reasonably practicable following the date of this Deed, provided always that, if the Effective Date has not occurred on or before 31 August 24 September 2004, either party shall be entitled to terminate this Deed at any time thereafter upon giving written notice to the other party. (signature)

2.3 Without prejudice to any antecedent breaches of this Deed, if either party terminates this Deed pursuant to clause 2.2 then the Authority shall be entitled to recover in full from Project Co within 5 Working Days of the date of receipt of any notice served pursuant to clause 2.2 the amounts paid by the Authority to Project Co in connection with this Deed prior to the date of termination as set out in clause 5.2 and neither party shall be entitled to bring any claim against the other party as a result of such termination.

2.4 The Authority shall, within 10 Working Days after the Effective Date, deliver to Project Co a duly executed certificate issued pursuant to the Local Government (Contracts) Act 1997 in relation to this Deed.

2.5 Project Co shall procure the delivery by Liberty Mutual Insurance Company (UK) Limited, within 10 Working Days after the Effective Date, of written confirmation of its consent to the D&B Deed of Amendment and Restatement and that the D&B Performance Bond and Retention Bond (in each case, as defined in the D&B Contract) remain effective.

3 Amendment and restatement

With effect from the Effective Date the Project Agreement shall be amended and restated so as to give effect to the amendments set out in schedule 2. The parties agree that the amendments to the Project Agreement and Schedules set out in schedule 2 constitute the only pages of the Project Agreement and Schedules where changes to the text have been agreed between the parties.

4 Confirmation

The parties confirm that the Project Agreement remains in full force and effect save as amended by this Deed.

5 Variations, amendments and payments

5.1 The parties agree that:

(a) as a result of the matters contained in or referred to in this Deed, namely the carrying out of works by Project Co (whether before or after the Effective Date):

(i) required to be undertaken for the removal of Asbestos at the Facilities within the period prior to the last Actual Date of Completion to occur; and

(ii) as a result of Variations instructed and/or requested in writing by the Authority pursuant to Clause 32 of the Project Agreement up to and including 7 June 2004,

the Design and Build Periods in respect of the Sites have been extended as set out in Part 3 of Schedule 3 to the Project Agreement (as amended and restated in accordance with this Deed); and

(b) without prejudice to the Authority’s entitlement to request Variations pursuant to the Project Agreement, Project Co shall carry out such variations to the Works as are nominated by the Authority in its discretion up to (but not exceeding) the value of

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£115,000 (unindexed) which variations Project Co shall carry out and complete at no cost to the Authority; and

(c) Project Co shall shall carry out and complete the Variations set out in schedule 3 to this Deed by the respective dates set out against each such Variation in schedule 3 (and, to avoid doubt, such Variations shall be carried out and completed at no additional cost to the Authority),

provided always that:

(i) the Authority shall be fully responsible for any planning or judicial review risk associated with the carrying out of any Variation referred to in this clause 5.1(c); and

(ii) the Authority shall be entitled to deduct liquidated and ascertained damages (LADs) from the Services Contract Payment at a rate of £55 per Variation for each day in excess of the relevant Completion Date for which any Variation as referred to in this clause 5.1(c) is not complete.

5.2

(a) The parties acknowledge and agree that there is a difference between the Services Contract Payment set out in Part 4 of Schedule 5 to the Project Agreement and the Services Contract Payment set out in the Base Case Financial Model. In order to rectify this difference and by way of full and final settlement of the costs and expenses incurred or to be incurred by Project Co as a result of the implementation of variation works including the change in building design at Leasowe Primary and the implementation (whether before or after the Effective Date) of works to deal with Asbestos discovered in the Facilities within the period prior to the last Actual Date of Completion to occur (in accordance with Clause 16.4 of and Schedule 15 to the Project Agreement), the Authority has agreed to:

(i) change the Expiry Date to 31 July 2031 in order to enable Project Co to raise additional finance (provided always that the amount of principal taken into account in calculating Senior Debt (as shown in the Revised Base Case Financial Model) shall not increase by more than £3,000,000.00, compared with the amount of principal shown for the same date in the Base Case Financial Model, by reason of the raising of such additional finance); and

(ii) pay to Project Co the sum of £3,340,000.00, such sum to be paid in accordance with the remainder of this clause 5.2.

(b) The parties acknowledge that, of the sum referred to in clause 5.2(a)(ii), the sum of £1,800,000.00 has been paid by the Authority to Project Co (and Project Co acknowledges that it has received such amount from the Authority). The remaining sum of £1,540,000.00 shall be due and payable by the Authority to Project Co in the sums and on the dates set out in schedule 4.

(c) Project Co shall submit a valid VAT invoice to the Authority in respect of each of the amounts referred to in clause 5.2(b).

(d) Project Co acknowledges that it has received a payment of £1,186,618.10 (inclusive of VAT) from the Authority in relation to certain costs incurred by Project Co in removing Asbestos. The parties agree that a further sum of £35,000 (which represents the VAT element outstanding on a £200,000 payment on account made by the Authority) remains to be paid by the Authority to Project Co and that the Authority shall pay such amount to Project Co within 30 days of receipt of a valid VAT invoice in respect of the same.

(e) The parties agree to procure that Schedule 4 to the Project Agreement shall, not later than the last Actual Date of Completion to occur, be revised to reflect any changes to the drawings or accommodation schedules as may be necessary, whether arising

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pursuant to this Deed or otherwise, but provided always that any such revision shall not result in any increase to the Services Contract Payment as set out in the Base Case Financial Model.

(f) and (g) – please see continuation sheet overleaf (signature)

Outstanding items

5.3 In consideration of receipt of the amounts referred to in clause 5.2, Project Co shall carry out and complete the works set out in schedule 5 (“Outstanding Items“) and, to avoid doubt, Project Co shall not be entitled to any additional payment in respect of such works.

6 Release by the Authority

6.1 On and with effect from the Effective Date:

(a) the Authority irrevocably waives and releases to Project Co any claim or Losses it may have or which may have arisen consequent upon any breach or alleged breach of any obligation of Project Co contained in the Project Agreement arising prior to the Effective Date in connection with the matters referred to in clause 5.1(a) including without limitation in relation to the issue of any Non-Completion Certificate; and

(b) the Authority irrevocably and unconditionally provides its consent, insofar as such consent may be necessary or required to be given under the Project Agreement, to any matters contained in or referred to in this Deed.

7 Release by Project Co

7.1 On and with effect from the Effective Date Project Co irrevocably waives and releases to the Authority any claim or Losses it may have or which may have arisen consequent upon any breach or alleged breach of any obligation of the Authority contained in the Project Agreement arising prior to the Effective Date in connection with the matters referred to in clause 5.1(a) including without limitation to the issue of any Non-Completion Certificate. Without prejudice to the foregoing, Project Co acknowledges that:

(a) the amendment to the Expiry Date referred to in clause 5.2(a)(i);

(b) the payment of the financial amounts shown in clause 5.2; and

(c) the amendments made to the Schedule of Key Dates referred to in clause 5.1(a),

shall constitute Project Co’s sole compensation in respect of the matters contained within this Deed, including without limitation any claim against the Authority under Clause 16.4 of the Project Agreement or otherwise for costs, expenses, losses, prolongation or disruption expenses or loss of profit arising from any works (whether such works are carried out before or after the Effective Date) required to deal with Asbestos discovered at the Facilities within the period prior to the last Actual Date of Completion to occur.

8 Governing law and dispute resolution

8.1 The law of this Deed is English law.

8.2 Any dispute arising out of or in connection with this Deed shall be resolved in accordance with the procedure set out in Clause 49 (Dispute Resolution Procedure) of the Project Agreement. Subject as aforesaid, the parties agree that the courts of England and Wales shall have exclusive jurisdiction to hear and settle any action, suit, proceeding or dispute in connection with this Deed and irrevocably submit to the jurisdiction of those courts.

In Witness the parties have caused this Deed to be duly executed on the date set out above.

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2-10000834-13

(f) The parties acknowledge that the extension to the Contract Term hereby agreed (the “Contract Extension“) will enable Project co to raise additional funding to facilitate Project Co’s performance of its obligations under the Project Agreement and this Deed, and the Authority agrees that on the occasion of the first financing of the Contract Extension (whether or not the Contract Extension is financed for the first time as part of a Refinancing (as that term is defined in clause 4.1 of the Project Agreement) or otherwise) all sums thereby raised up to (but not exceeding) the sum of three million pounds (£3,000,000.00) and arising solely out of the Contract Extension shall accrue solely to Project Co provided that (for the avoidance of doubt) that parties hereto agree that on any Refinancing (as that term is defined in clause 4.1 of the Project Agreement) taking place after the first financing of the Contract Extension as aforesaid the provisions of clause 4.1 of and Schedule 2 Part 8 (Rules for Refinancing) to the Project Agreement shall apply in full to the Contract Term as hereby extended.

(g) For the purposes of clause 4.1 of the Project Agreement, the Authority hereby grants its consent to the first financing of the Contract Extension (but not further or otherwise). (signature)

2-1076380-1

Schedule 1
Conditions
Part 1 – Conditions to be satisfied by Project Co

Delivery by Project Co to the Authority of the documents listed below in form and substance satisfactory to the Authority. Where listed as a duly certified copy, the document must be certified by a director or the secretary of Project Co as being a true copy:

1. A copy, duly certified, of minutes of a meeting of the board of directors of Project Co evidencing:

(a) consideration by the directors of:

(i) a final draft of this Deed and the Subcontract Deeds of Amendment and Restatement;

(ii) Project Co’s rights and obligations under this Deed and the Subcontract Deeds of Amendment and Restatement; and

(iii) any limit or restriction on any of Project Co’s powers or any limit or restriction on the rights or ability of the directors to exercise any of Project Co’s powers; and

(b) a resolution of the board of directors approving the execution, delivery and performance by Project Co of this Deed and the Subcontract Deeds of Amendment and Restatement and authorising a specific person or persons to execute and deliver this Deed and the Subcontract Deeds of Amendment and Restatement and sign and despatch all notices and other communications required or permitted to be given by Project Co under this Deed and the Subcontract Deeds of Amendment and Restatement.

2. A specimen of the signature of each person authorised by Project Co to execute this Deed and the Subcontract Deeds of Amendment and Restatement and to sign and despatch all notices and other communications required or permitted to be given by Project Co thereunder.

3. A copy, duly certified, of each of this Deed and the Subcontract Deeds of Amendment and Restatement.

4. The Revised Base Case Financial Model.

5

2-10000834-13

Part 2 – Conditions to be satisfied by the Authority

Delivery by the Authority to Project Co of the documents listed below all in form and substance satisfactory to Project Co:

1. Copies of such (if any) of the Direct Agreements as may be required by the Lenders to be executed by the Authority, executed by the Authority (but not, for the avoidance of doubt, the other parties to the Direct Agreements); and

2. Certified copies of the appropriate minute of the Authority which evidences the delegated authority of the officer signing this Deed.

6

2-10000834-13

Schedule 2
Amendments to the Project Agreement

7

2-10000834-13

CONFORMED COPY

DATED       27 March 2001

(1) WIRRAL BOROUGH COUNCIL

(2) WIRRAL SCHO OLSSCHOOLS SERVICES LIMITED

(signature)

===================================================================================================================

PROJECT AGREEMENT

Amended and Restated pursuant to a Deed of Amendment and Restatement dated 9th September 2004

===================================================================================================================

ROWE & MAW
20 Black Friars Lane
London EC4V 6HD

Tel: 020 7248 4282
Fax: 020 7248 2009

Ref: 617/343/476/27909.1

CONTENTS

CLAUSE SUBJECT MATTER PAGE

1. Definitions and Interpretation 2
2. Conditions Precedent 4344
3. Ancillary Documents 4647
4. Funding Arrangements, Direct Agreements, Guarantees and Prohibition on Diversification 4748
5. Term 5051
6. Planning 5051
7. Works 5657
8. Project Programme and Extensions of Time 5961
9. Design Development 6264
10. Standards of Design and Workmanship 6364
11. D & B Contract 6365
12. Decant Programme 6465
13. Care of the Sites and Reinstatement 6466
14. Inspection and Completion 6567
15. CDM Regulations 6870
16. Defects 6971
17. Fossils and Antiquities 7072
18. Services and Phase-in 7274
19. Maintenance 7678
20. Utility Services and Catering 8284
21. Value for Money Testing and Best Value 8587
22. Equipment and Materials 8789
23. Payments to Project Co 9395
24. Performance Regime 98100
25. Provisions Relating to Land 101103
26. Authority Access 103105
27. Site Licences and Leases 104106
28. Obligations of Project Co in Respect of the Sites and the Authority’s Obligations in Respect of Land 107109
29. Rates, Taxes and Outgoings 109111
30. Quality Assurance 110112
31. Reports and Records 112114
32. Variations 117119
33. Change in Law 130132
34. Indemnity and Liability Limitation 132134
35. Environmental Liability 138140
36. Insurance 139141
37. Events of Default and Termination 146148
38. Compensation on Termination 151153
39. Consequential Arrangements on Termination 155157
40. Representatives 159161
41. Sub-Contracting 161163

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42. Assignment 162164
43. Change of Control 163165
44. Force Majeure 164166
45. Warranties and Disclaimers 166168
46. Employees 161171
47. Intellectual Property and Data 179181
48. Confidentiality and Publicity 181183
49. Disputes 185187
50. Agency 185187
51. Personal Data 186188
52. Corrupt Gifts and Payments of Compensation 188190
53. Health and Safety, Site Rules and Occupiers Liability 190192
54. Miscellaneous 192194
55. Governing Law and Jurisdiction 196198

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ii

INDEX OF SCHEDULES

SCHEDULE HEADING
SCHEDULE 1 LAND
Part 1 Bebington Headlease
Part 2 Hilbre Headlease
Part 3 Park High Headlease
Part 4 Prenton High Headlease
Part 5 South Wirral High Headlease
Part 6 Wallasey Headlease
Part 7 Not used
Part 8 Weatherhead Headlease
Part 9 Wirral Girls Headlease
Part 10 Bebington Underlease
Part 11 Hilbre Underlease
Part 12 Park High Underlease
Part 13 Prenton High Underlease
Part 14 South Wirral High Underlease
Part 15 Wallasey Underlease
Part 16 Not used
Part 17 Weatherhead Underlease
Part 18 Wirral Girls Underlease
Part 19 Plans

SCHEDULE 2 FINANCIAL MATTERS
Part 1 Lenders’ Direct Agreement
Part 2 The Council’s Design and Building Contract Direct Agreement
Part 3 The Council’s Support Services Management Direct Agreement
Part 4 Design and Building Contract Performance Guarantee
Part 5 Support Services Management Agreement Performance Guarantee
Part 6 Initial Senior Funding Agreements
Part 7 Other Initial Funding Agreements
Part 8 Rules for Refinancing

SCHEDULE 3 WORKS

Part 1 Design Development Procedure
Part 2 Prohibited Materials

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iii

Part 3 Schedule of Key Dates
Part 4 Outline Design Documents
Part 5 The Completion Standards
Part 6 Decant Programme Methodology
Appendix 1 Decant Programme: Park High
Appendix 2 Decant: Further Obligations
Part 7 Handback Requirements
Part 8 Project Programme
Part 9 Construction Site Rules
Part 10 Handback Survey
SCHEDULE 4 PAYMENTS
Part 1 Definitions
Part 2 Services Contract Payment
Part 3 Performance Deduction Look-up Table
Part 4 Table of Service Units per School
Part 5 Monitoring
Part 6 Utility Services
Part 7 Third Part Use
Part 7A Catering
Part 8 Value for Money Testing
Appendix 1 Form of Performance and Payment Report
SCHEDULE 5 ACCOMMODATION SERVICES OUTPUT SPECIFICATION
SCHEDULE 6 SUPPORT SERVICES OUTPUT SPECIFICATION
Part 1 Building and Asset Maintenance Output Specification
Part 2 Support Service Requirements and Performance Tables
Part 3 Service Level Agreements
Part 4 Service Level Agreements Alteration Procedure
SCHEDULE 7 REPORTS AND RECORDS
Part 1 Reports
Part 2 Records
SCHEDULE 8 VARIATION
Variation Notice
SCHEDULE 9 INSURANCE
Part 1 The Part I Insurance Period

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iv

Part 2 The Part 2 Insurance Period
Appendix 1 Endorsements
Appendix 2 Broker’s Letter of Undertaking
Appendix 3 Business Interruption Insurance – the Authority’s Obligations as Insurer
Appendix 4 Schedule of Insured Parties
SCHEDULE 10 LIAISON COMMITTEE
SCHEDULE 11 COMPENSATION ON TERMINATION
Part 1 Definitions
Part 2 Project Co Default
Part 3 Authority Default
Part 4 Notice by the Authority
Part 5 Force Majeure, Uninsurability and Planning Challenge
Part 6 Corrupt Gifts
SCHEDULE 12 DISPUTE RESOLUTION
SCHEDULE 13 SENIOR REPRESENTATIVES
SCHEDULE 14 COMPENSATION EVENTS
SCHEDULE 15 METHODOLOGY FOR ASBESTOS
Appendix 1 MB Wirral Policy
Appendix 2 Asbestos Survey Risk Assessment
SCHEDULE 16 LIQUIDATED DAMAGES
SCHEDULE 17 QUALITY SYSTEMS
Part 1 Design and Build Period Quality System
Part 2 Operational Period Quality System
Appendix A Quality Policy
Appendix B Certificate of Approval
Appendix C Proposed QA Implementation Plan
Appendix D Contact Directory
Appendix E Local Procedures
SCHEDULE 18 EMPLOYEES
Part 1 Employee Information
Part 2 Terms and Conditions of Employment
SCHEDULE 19 ADMISSION AGREEMENTS AND BONDS
Part 1 Jarvis Workspace FM Limited
Part 2 Compass Group PLC

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v

Part 3 MTL Commercial Limited
SCHEDULE 20 STAFF SECURITY PROTOCOL
SCHEDULE 21 OPERATIONAL SITE RULES
SCHEDULE 22 DRAFT TRANSITIONAL SERVICES AGREEMENT
SCHEDULE 23 CITY LEARNING CENTRE
SCHEDULE 24 NEW MOVEABLE EQUIPMENT SCHEDULE OF RATES

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Continues at 6 more pages of the Wirral Schools Services Limited contract with Wirral Council.

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Ever wondered what pages 89-101 of Wirral Council's contract with Biffa for street cleansing states?

Ever wondered what pages 89-101 of Wirral Council’s contract with Biffa for street cleansing states?

Ever wondered what pages 89-101 of Wirral Council’s contract with Biffa for street cleansing states?

Biffa Waste Service Limited January 2014 Invoice Wirral Council £1032201.28
Biffa Waste Service Limited January 2014 Invoice Wirral Council £1032201.28

As the issue of Wirral Council’s/Biffa’s response to flytipping (an issue as common to politics as leaves falling from trees at this time of year) has come up again (see above), I familiarised myself with the manual handling procedures and retrieved the Biffa contract from our archive. The whole contract is marked confidential and is currently being renegotiated with Biffa around the issue of a 7 year extension. The whole contract will be published by Wirral Council by the end of the year (as it’s a new legal requirement on them). Below is an excerpt from part of it.

This is the bits on flytipping in the “Environmental Streetscene Services Contract Waste, Recycling and Street Cleansing Services 2006-2020 (2027)”:

The Street Cleansing specifications are pages 89 to 101. Page 116 is Street Cleansing Daywork Rates (this page of the contract was deliberately erased on the copy supplied to me as part of the audit).

I have included pages 89 to 102 below. However parts of erased page 116 have been reproduced in public papers for the Birkenhead Constituency Committee meetings. I’m not entirely sure where in a ~1000 or so page contract that schedules 3A and 3B refer to, but 3A & 3B also relate to the street cleansing specification. There may be the odd typographical error as I typed this up, however there are also typographical errors as part of the contract which I have reproduced as written.

Page 89

Metropolitan Borough of Wirral
Environmental Stretscene Services Contract
Street Cleansing Specification
Part 7

7.1 Street Cleansing Specification
7.1 General Description of Services

7.1.1 The Council requires the highest possible standard of Street Cleansing throughout the Borough. The standards to be achieved by the Contractor are specified and are in line with the standard required by the Environmental Protection Act 1990 (hereafter known as The Act) and in particular the Code of Practice on Litter and Refuse (CoPLR) as it applies to the zone classifications of every Location throughout the Borough.

7.1.2 The Contractor should not rely upon any assistance being given by any other organisation to keep the Borough free of all Litter.

7.1.3 The Contractor shall provide for:

7.1.3.1 Removal of all Litter, bulky items, hazardous Waste and other specified materials from every Location specified, irrespective of size or type of material and irrespective of how the material arrived at the Location;

7.1.3.2 Clearance of leaf, blossom and fruit fall from every Location specified;

7.1.3.3 The clearance and disposal of all weeds and moss from all hard areas as requested by the Authorised Officer, shall form part of the normal Street Cleansing work.

7.1.3.4 Collection of other categories of Waste including flytipping, dead animals and other items from any Location, public spaces, highways, lay-bys, Roadside verges, watercoueses, etc. as instructed by the Authorised Officer.

7.1.3.5 Collection of Waste from other Cleansing activities as required at fairs, markets, and any other public or special events;

7.1.3.6 Clearance of sand and tidal debris;

7.1.3.7 Cleansing of rear passages and Entries;

7.1.3.8 Cleansing of car parks;

7.1.3.9 Cleansing of promenades, embankments, revetments, associated areas;

7.1.3.10 Emptying of Litter bins as specified;

7.1.3.11 Removal of graffiti and flyposters (Provisional Item);

7.1.3.12 Provision of a Rapid Response Service (Provisional Item);

7.1.3.13 Removal of abandoned shopping trolleys (Provisional Item);

7.1.3.14 Street washing in specified areas (Provisional Item);

7.1.3.15 Gritting of zone 1 town centre Locations (Provisional Item);

7.2 Hours of Operation

7.2.1 In zone 2, zone 3 and zone 4 areas normal daily Cleansing Services may take place from Monday to Sunday inclusive and should not normally commence prior to 0600 hours and not normally continue after 2000 hours in order to avoid nuisance and complaint. However, it is recognised that works outside these hours may be required to satisfy the requirements of the Code of Practice on Litter and Refuse or the requirements of certain Services. The Contractor should request written approval from the Authorised Officer prior to commencing Cleansing Services between the hours of 2000 hours and 0600 hours.

7.2.2 In zone 1 areas normal daily Cleansing Services many take place from Monday to Sunday inclusive. There are no specified core Service hours for zone 1 areas.

7.2.3 The Contractor should be aware that Mechanical Sweeping should not be undertaken in some residential areas at times that will cause reduction in amenity, statutory nuisance or complaint.

7.2.4 The Contractor must note the opening hours of the Waste disposal Sites could be a constraint on his operations and he must ascertain from the Waste Disposal Authority when the facilities are open. If the Contractor wants to operate outside these hours then he shall make arrangements with the Waste

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Metropolitan Borough of Wirral
Environmental Stretscene Services Contract
Street Cleansing Specification
Part 7

Disposal Authority and be responsible for any additional special charges made by the Authority in complying with the Contractors’ request.

7.3 Bank and Public Holidays

7.3.1 Bank and public holidays may be treated as normal working days.

7.3.2 The Contractor shall provide the Service 364 days per year, the only exception being Christmas Day.

7.4 Area Zoning

7.4.1 The whole Borough has been zoned in accordance with the Code of Practice on Litter and Refuse and can be described as follows:

7.4.1.1 Zone 1 – Town centres, shopping centres, shopping Streets, major transport centres, central car parks and Locations adjacent to these (e.g. footways, highways, passageways, etc);

7.4.1.2 Zone 2 – High density residential area, suburban car parks and transport centres;

7.4.1.3 Zone 3 – Low density residential areas, other transport centres and areas of industrial estates;

7.4.1.4 Zone 4 – All other areas.

7.5 Cleansing Standards

7.5.1 The Code of Practice on Litter and Refuse prescribes four standards of cleanliness:

7.5.1.1 No Litter or refuse, known as grade A;

7.5.1.2 Predominantly free of Litter and refuse apart from small items, known as grade B;

7.5.1.3 Widespread distribution of Litter and refuse with minor accumulations, known as grade C;

7.5.1.4 Heavily Littered with accumulations, known as grade D.

7.5.2 Grade A shall be achieved by the Contractor after Cleansing and shall conform to the photographic standard contained within Appendix 9.9.3 and contained in the CoPLR.

7.6 Minimum Cleansing Frequencies

7.6.1 The minimum Cleansing frequencies required by the Council at each location shall be in accordance with that outlined below and the appropriate zoning allocation.

Zone Frequency
Manual Mechanical
1 Daily Weekly
2 Weekly Fortnightly
3 Monthly Monthly
4 Monthly Quarterly

7.6.2 It is recognised that these frequencies may be insufficient to maintain the output standard described in the Code of Practice for Litter and Refuse (COPLR) and the Contractor will be required to assess for himself the actual frequencies he proposes to adopt for all Locations throughout the district.

7.7 Carriageway Sweeping

7.7.1 Road Channels and the adjoining carriageway on each side of the Road and car parks shall be thoroughly swept and de-Littered at the minimum frequencies stated, or as otherwise directed by the Authorised Officer in accordance with the Act.

7.7.2 No additional payment will be made for hand sweeping at the heads of cul-de-sacs, traffic islands or other areas and the Contractor shall include for this work within the tender.

7.7.3 Pedestrian refuges and similar features may require additional manual sweeping. Manual sweeping shall be done concurrently with the sweeping operation to the standards set out in the COPLR, or as

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Environmental Stretscene Services Contract
Street Cleansing Specification
Part 7

otherwise directed by the Authorised Officer. The areas shall be thoroughly Cleansed to ensure all litter, detritus and vegetation is removed and the area is left clean. No additional payment will be made for this work and the Contractor shall include for this work within the tender.

7.7.4 The minimum frequencies stated do not replace the requirement for the Contractor to achieve the standards required under the COPLR and the Contractor will be required to alter frequencies and provide additional resources to ensure these standards are met.

7.8 Footway Sweeping

7.8.1 All areas designated for footway sweeping shall be throughly swept and de-Littered at the minimum frequencies stated, or as otherwise directed by the Authorised Officer in accordance with the Act.

7.8.2 Areas around Street furniture, where it is impossible or impractical for the footway to be mechanically swept, shall be concurrently Cleansed by hand to ensure all litter, detritus and vegetation is removed and the area is left clean. No additional payment will be made for this work and the Contractor shall include for this work within the tender.

7.9 Shopping Areas and Precincts

7.9.1 The main shopping areas in the Borough are located at Birkenhead and Liscard and are listed in the Streets Data File, contained within Appendix SC2, with maps of these areas contained in Appendix 9.9.1. The areas of the covered precincts in Liscard and Birkenhead are privately owned and are Cleansed by others. All other shopping Streets are identified in the Streets Data File.

7.9.2 The Contractor is to include for the Daily Cleansing of all surface areas within and around shopping areas, frontage to frontage, incorporating all features such as furniture, shrub beds, grass areas, hard surfaces, passageways, pathways, drainage slots and channels, Service Roads, delivery bays and Walkways, etc.

7.9.3 All drainage channels and gratings, etc., shall be kept cleared of Litter, sludge and debris.

7.10 Inner Area Cleansing

7.10.1 The Inner Area of the Borough is delineated on the map contained within Appendix 9.9.4 The area comprises part or all of the districts of New Brighton, Liscard, Egremont, Seacombe and the Birkenhead areas of North End, Central, Tranmere and Rock Ferry together with part of New Ferry.

7.10.2 The Contractors attention is drawn to the problems that exist within these areas, particularly where the property is terraced with rear Entries. The Contractor must include for the thorough Cleansing of the areas in accordance with this Specification irrespective of the volume of material to be removed.

7.11 Cleansing of Entries

7.11.1 The Contractor is required to thoroughly Cleanse all Entries in the Borough, as detailed in Appendix 9.9.1, once every four Weeks, in accordance with this Specification irrespective of the volume or type of material to be removed.

7.11.2 All Cleansing operations shall be carried out at the time of visit to include the removal:

7.11.2.1 Flytipping;

7.11.2.2 Litter (including animal faeces);

7.11.2.3 Detritus;

7.11.2.4 Dead weeds;

7.11.2.5 Flyposters;

7.11.2.6 Grafitti.

7.11.2.7 Any other items.

7.11.3 Some Entries are gated. The Authorised Officer will issue gate keys to the Contractor at the commencement of the Contract. Should the Contractor lose any keys, then the Contractor shall be liable for the cost of replacement keys.

7.11.4 The Contractor shall allow for this within the tendered price, and no additional payment shall be made.

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Environmental Stretscene Services Contract
Street Cleansing Specification
Part 7

7.11.5 The Contractor shall submit a schedule for these Works to the Authorised Officer for approval prior to the commencement of the Contract. The Contractor is required to request prior written approval from the Authorised Officer before amending the agreed work schedule.

7.12 Cleansing of Estates and Low Density Residential Areas

7.12.1 A significant proportion of the residential areas of the Borough have been included within zones 3 and 4 and include most of the private and social housing estates as well as the lower density residential areas. The Contractors attention is drawn to the Litter problems on some of the estates where there are large open spaces which need to be maintained to the standards prescribed in the Environmental Protection Act 1990.

7.13 Schools

7.13.1 The Contractor is advised that, in addition to scheduled Cleansing, the Contractor is required to provide an additional Weekly Cleanse to the areas surrounding secondary schools within the Borough. These schools, along with details of the surrounding areas, are listed in Appendix SC11.

7.13.2 The Contractor shall allow for this within the tendered price, and no additional payment shall be made.

7.14 Car Parks

7.14.1 Pay and Display car parks are provided adjacent to all the main commercial areas in the Borough and are heavily used. The Contractor is required to maintain the standards of all Pay and Display car parks.

7.14.2 All other car parks, including those at Council offices, are required to be Cleansed regularly, except for those identified in clause 7.15 of this specification which form part of the summer Cleansing requirement.

7.14.3 Car parks shall be classified as the same area zone as the adjacent Road and shall be Cleansed accordingly. Locations and sizes of car parks can be found within the Streets Data File, contained within Appendix 9.9.1.

7.15 Promenades, Revetment Walls and Associated Areas

7.15.1 For the purpose of this Contract, “Promenade” shall be defined as the end lengths of Road, pavement and associated features at Seacombe Promenade, Sandon Promenade, Egremont Promenade, Magazine Promenade, Tower Promenade, Marine Promenade, Marine Promenade Car Park, Kings Parade, Coastal Drive, former Derby Pool car park and access Road, Leasowe Common Roadway from Leasowe Road to the rear of the sea wall and grass areas from front to rear of the kiosks, North Parade and Meols Parade, Hoylake Promenade from Hoylake to Meols and South Parade West Kirby including the car parks at both ends of the Marine Lake.

7.15.2 The Contractor is to include all pedestrian access to promenade areas via Roads, passages or steps and carry out Cleansing as if they were part of the promenade.

7.15.3 During the prescribed summer season (twenty-six complete Weeks commencing with the first Monday in April each year) the Contractor is required to thoroughly Cleanse the entire grassed areas of Kings Parade and Leasowe Common on daily basis to remove all Litter and dog fouling in order to maintain these locations at Grade B.

7.16 Litter Bins

7.16.1 Litter bins of the post mounted or free standing varieties are provided in large numbers throughout the Borough, as detailed in Appendix 9.9.2. The Council has a progressive policy both to replace any existing Litter bins that are damaged and also to provide additional Litter bins at any Location the Authorised Officer considers may help to reduce Litter problems.

7.16.2 The Contractor is required to empty all existing Litter bins together with any additional Litter bins installed by the Authorised Officer as frequently as necessary to prevent the escape of Waste. For the avoidance of doubt no Litter bin should be more than 3/4 full at any time and no additional payment will be made for additional Litter bins.

7.16.3 The Contractor shall also be required to empty any Litter bin, at the request of the Authorised Officer, within 2 hours of the request being made.

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Metropolitan Borough of Wirral
Environmental Stretscene Services Contract
Street Cleansing Specification
Part 7

7.16.4 At the time of emptying, the Contractor should remove any Litter within one metre of the Litter bin.

7.16.5 The Contractor is to inspect all Litter bins for damage as they are emptied and report any damaged bins to the Authorised Officer each evening by e-mail.

7.16.6 Most bins provided for use by the public have lockable inner liners and the Contractor is to ensure that these liners are replaced and locked back in after each emptying.

7.16.7 The Contractor shall be required to lock in any inner liners that are found to be not locked in, at the request of the Authorised Officer, within 24 hours of the request being made.

7.16.8 Any liners which, in the opinion of the Authorised Officer, were not locked in after emptying, and subsequently suffer loss or damage, shall be replaced by the Contractor at no cost to the Council. The Authorised Officer’s decision is final.

7.16.9 At the request of the Authorised Officer, the Contractor shall be required to wash, disinfect and clean out Litter bins in order to maintain them in a clean and sanitary condition. Payment for this work shall be made in accordance with the schedule of Daywork Rates.

7.16.10 At the request of the Authorised Officer, the Contractor shall be required to cap Litter bins in a given area when the alert status increases, so that they cannot be used for the duration of the increased alert. The Contractor shall be required to remove the caps, at the request of the Authorised Officer, when the alert status returns to normal. Payment for this work shall be in accordance with the schedule of Daywork Rates.

7.17 Drugs Related Litter

7.17.1 The Contractor shall include for the collection and removal of drugs related Litter from all Locations included in the Contract as a normal part of the Street Cleansing Service.

7.17.2 The Contractor shall be responsible for the collection and removal of drugs related Litter encountered as part of the normal Street Cleansing Service. The Contractor shall also respond as and when instructed by the Authorised Officer. The Contractor shall respond as soon as possible and, in any case, within ninety minutes of the instruction being issued during normal hours of operation.

7.17.3 The Contractor shall ensure all Employees are fully trained and carry the appropriate protective equipment to enable them to respond to such incidents.

7.17.4 All incidents of drug related Litter must be noted and reported electronically to the Council on a Weekly basis.

7.17.5 No additional payment shall be made for drugs related Litter removed as part of the normal Street Cleansing schedule or from occupied residential properties. On occasions when the Contractor responds to incidents which are not in areas scheduled to be Cleansed as part of the normal Street Cleansing Service or residential properties the Contractor shall receive additional payment based upon the Daywork rates. (Removal from residencies which are under renovation or managed by agents will be chargeable).

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Metropolitan Borough of Wirral
Environmental Stretscene Services Contract
Street Cleansing Specification
Part 7

7.18 Leaf Fall

7.18.1 Whilst most Roads in the Borough suffer an increased Street Cleansing work content during the leaf fall period the Contractors attention is drawn to the Oxton, Heswall and Caldy areas of the Borough where the problem is more prevalent than in other areas.

7.18.2 The Contractor shall include for the collection of leaf fall from all Locations included in the Contract as a normal part of the Street Cleansing Service and deploy such additional resources, such as a dedicated resource for the clearance of leaves, as are necessary to maintain the Cleansing Schedule.

7.18.3 On collection, the Contractor shall take clean leaf fall for Composting wherever possible.

7.19 Grass Cutting and Weed Control

7.19.1 Any cut grass accumulated on footpaths and Roads etc. after mowing or cutting, shall be swept up and removed by the Contractor as part of the normal programmed Cleansing activity.

7.19.2 The clearance and disposal of all unwanted vegetation from all hard areas, grass margins, obstructions, shrub beds, and other ad-hoc Locations as requested by the Authorised Officer, shall form part of the normal Street Cleansing work. Moss is defined as unwanted vegetation and shall be removed as part of the Service.

7.19.3 The contractor will be responsible for the removal of weed once weed spraying has been successfully undertaken by or on behalf of the Council. The contractor shall remove live weeds from channels where the presence of such weeds has been caused by the contractor’s failure to cleanse the channels.

7.20 Graffiti and Fly Posting Removal (Provisional Item)

7.20.1 The Contractor shall remove graffiti and fly posters from Relevant Land within the Borough, including highway signs and apparatus (but excluding traffic management and utility apparatus) as requested by the Authorised Officer and/or members of the public. The Contractor will remove graffiti and fly posters by a method approved in writing by the Authorised Officer.

7.20.2 Where chemicals are proposed to be used by the Contractor to remove graffiti, the Contractor shall provide the Authorised Officer with COSHH Assessments of the chemicals to be used, and the Authorised Officer’s written approval must be gained in advance.

7.20.3 The Contractor shall remove graffiti from underpasses through paint-out.

7.20.4 Racist or offensive graffiti or fly posting, and illegal advertising graffiti or fly posting, will be removed by the Contractor within 24 hours of notification. All other graffiti or fly posting will be removed by the Contractor within 5 days of notification.

7.20.5 If the graffiti or fly posting has been removed, but stains or residue have affected a permeable surface, the Contractor will inform the Authorised Officer by e-mail within 24 hours of completion of the work.

7.20.6 Graffiti removal and fly posting removal from private property and utility apparatus will be through private arrangement between the Contractor and property owner. Payments will be made direct to the Contractor by the customer requesting the Service. The Contractor will retain any income generated by this Service.

7.20.7 The Contractor is to submit a Weekly report to the Authorised Officer detailing the graffiti and flyposting that has been removed during that Week.

7.20.8 The Council treats the problem of flyposting and graffiti very seriously and will prosecute anyone caught or suspected of committing such an offence providing that sufficient evidence can be gathered. The Contractor is to assist the Council in this regard by obtaining photographic and written evidence (i.e. time, date, location, posters, etc.) and supplying this information to the Authorised Officer in an agreed format at the end of each day. The Contractor may also be required, from time to time, to assist the Council in the preparation of prosecution statements and attendance at court hearings.

7.21 Sand and Tidal Debris

7.21.1 Promenades and Roads which are near to beaches and slipways become covered, on occasions with quantities of sand, shingle or tidal debris. The Contractors attention is especially drawn to the large

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Metropolitan Borough of Wirral
Environmental Stretscene Services Contract
Street Cleansing Specification
Part 7

amount of wind blown sand which is deposited on the highway at West Kirby, Hoylake and New Brighton that will need to be removed in order to ensure highway safety.

7.21.2 The Contractor shall provide all equipment and include in his tender for the removal of any such sand, shingle or debris from Roads affected as part of his normal Cleansing operation and, upon referral from the Authorised Officer, within 24 hours.

7.22 Rapid Response Service (Provisional Item)

7.22.1 The Contractor shall engage sufficient dedicated personnel to provide a Rapid Response Service. This Service is to be provided from 08.00 to 17.00 Monday to Saturday inclusive to deal effectively with any matters which, in the opinion of the Authorised Officer, are of an urgent nature.

7.22.2 The Contractor is not required to provide this Service on Bank Holidays.

7.22.3 Recent experience indicates that approximately 250 requests for the Rapid Response Service are made by the Authorised Officer each year although no guarantee is given or implied that this figure is the maximum which should be expected.

7.22.4 The Contractor is to respond immediately, upon request from the Authorised Officer, to any matter of an urgent nature and in any event must have satisfactorily dealt with the occurrence within one hour of receiving the request. If the Authorised Officer or his representative attend an incident his instruction must be observed.

7.22.5 The Contractor must make available between the hours of 08.00 and 17.00 Monday to Saturday inclusive, a responsible person to receive requests for the Rapid Response Service and have sufficient seniority to be able to act upon the receipt of that request.

7.22.6 No other resources are to be diverted from their normal tasks in order to provide a Rapid Response Service.

7.22.7 Examples of occurrences which the Authorised Officer may refer to the Rapid Response Service are:

7.22.7.1 Clearance of debris after a traffic accident;

7.22.7.2 Broken glass or other debris on the highway;

7.22.7.3 Damaged bus shelters;

7.22.7.4 Debris or loads spilled from vehicles;

7.22.7.5 Oil spillages on the highway which require sanding and subsequent sweeping up of the sand. OR cleaning up of such spillages using other methods approved by the Authorised Officer;

7.22.7.6 Dead animals on the highway and/or beaches;

7.22.7.7 Flytipping (no exclusions);

7.22.7.8 Flytipping industrial Wastes;

7.22.7.9 Responses to public complaint, which in the opinion of the Authorised Officer, requires immediate action in order to bring about customer satisfaction.

7.22.8 The Contractor may also be required to respond to occurrences outside of the core hours stated, or to respond to incidents occurring at the request of the Authorised Officer. Payment for such call out shall be made in accordance with the schedule of Daywork Rates given in the Pricing Schedule.

7.22.9. Within 24 hours of responding to such an occurrence, the Contractor shall submit a report to the Authorised Officer in an agreed format giving details of the incident, timings, actions taken and outcomes, etc.

7.22.10 The Council treats the problem of flytipping very seriously and will prosecute anyone caught or suspected of committing such an offence provided that sufficient evidence can be gathered. The Contractor is assist the Cuoncil in this regard by obtaining photographic and written evidence (i.e. time, date, location, posters etc.) and supplying this information to the Authorised Officer electronically at the end of each day. The Contractor may also be required, from time to time, to assist the Council in the preparation of prosecution statements and attendance at court hearings.

7.23 Abandoned Shopping Trolleys (Provisional Item)

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7.23.1 The Contractor should be aware that the Council has resolved to recover, store and make a charge for shopping trolleys abandoned on relevant land or highways under section 99 of the Environmental Protection Act 1990.

7.23.2 It will be the responsibility of the Contractor to recover any shopping trolleys which appear to be abandoned and store such trolleys at the depot under the control of the Contractor. A Weekly log of all trolleys so repossessed and in the possession of the Contractor will be passed to the Authorised Officer stating:-

7.23.2.1 The Location where the trolley was located;

7.23.2.2 the identified owner of the trolley (where possible);

7.23.2.3 the condition of the trolley.

7.23.3 The Contractor will only be required to release trolleys in their possession recovered as part of the requirement upon production of a written receipt from the Authorised Officer indicating that the recovery charge has been made. The owner of the trolleys will be requested to acknowledge receipt of his equipment at the time of collection and the owner will be responsible for all transport charges in respect of the collection of the same.

7.23.4 Unclaimed trolleys in the possession of the Contractor may be disposed of after they have been stored for a minimum period of six Weeks, following certification from the Authorised Officer that they may be disposed of. Any income from the sale of unclaimed trolleys may be retained by the Contractor.

7.24 Gritting (Provisional Item)

7.24.1 The Contractor shall be responsible for the gritting of zone 1 town centre areas in accordance with schedule detailed in Appendix 9.9.1.

7.24.2 The Contractor shall use a urea based product which shall be provided to the Contractor by the Council free of charge.

7.24.3 The Contractor shall also be required to provide an ad hoc gritting Service, as and when required by the Authorised Officer.

7.24.4 Payment for these works shall be in accordance with the Daywork Rates given in the Pricing Schedule.

7.25 Street Washing (Provisional Item)

7.25.1 The Contractor will be required to provide a Weekly Street washing Service to the shopping areas as detailed in Appendix 9.9.1.

7.25.2 The Contractor shall allow for this within the tendered price, and no additional payment shall be made.

7.25.3 The Contractor may also be required to provide a Street washing Service at other Locations, at the request of the Authorised Officer. Payment for this Service will be in accordance with the schedule of Daywork Rates given in the Pricing Schedule.

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Metropolitan Borough of Wirral
Environmental Stretscene Services Contract
Street Cleansing Specification
Part 7

7.26 Special Events and Voluntary Organisations

7.26.1 To cater for special events in the Borough such as shows, fairs, sports activities, etc. (for example, the Wirral Show), or voluntary groups undertaking special clearance and Litter picking tasks in the Borough the Authorised Officer may require the Contractor to supply labour, vehicles, Plant or equipment to assist with or promote clearance operations.

7.26.2 The Contractor will be paid in accordance with the schedule of Daywork Rates given in the Pricing Schedule for any item supplied under this clause.

7.27 Volume and Type of Material

7.27.1 The Contractor shall not place any constraint on the volume or type of Litter which is to be removed from any Location, and all such eventualities shall be included for within the Contract price.

7.27.2 Any item of Litter discarded or deposited at any Location to which this Contract applies having a volume not exceeding 1 cubic metre must be removed at the time and day programmed for Street Cleansing. The volume of 1 cubic metre shall be applied to single items and not be the aggregate of smaller items. If any item of Litter discarded or deposited at any Location to which this Contract applies and has a volume of more than 1 cubic metre it shall be collected by the Contractor using separate resources if he so wishes but in any event must be cleared within 24 hours of its detection.

7.27.3 The Contractor’s attention is drawn to the fact that Waste Collection in this Borough is carried out using wheeled bins. There are occasions when householders fail to use the Waste Receptacle provided and put Waste out in bags or boxes or loose. If this occurs the Contractor is required to ascertain where the Waste has come from and recover any documentary evidence, prior to removal, and inform the Authorised Officer immediately so that enforcement action can be taken against the householder. The Contractor is required to remove all such deposits as part of the normal Cleansing operation.

7.28 Organisation and Methods

7.28.1 Subject to the approval of the Authorised Officer the Contractor is permitted to organise the delivery of the Service in any way which fulfil all the requirements of the Contract to the required standard within the required times, although the Council does have a preference for area based Service provision and tandem working to ensure task completion.

7.28.2 The Contractor is permitted to use both heavy and compact mechanical sweepers anywhere in the Borough where they can be effectively utilities and subject to normal weight restrictions.

7.28.3 The Contractor is encouraged to consider using compact mechanical sweepers in some of the high profile areas of the Borough.

7.29 Programme of Work

7.29.1 The Contractor shall submit a full and detailed programme of work to the Authorised Officer for approval, not later than four Week prior to the commencement of the Contract.

7.29.2 The Programme shall include details of all rounds to be worked and shall include the days when each Location is programmed to be Cleansed. This information shall be provided electronically and may also be presented as colour coded maps or lists of work programmed per day per round provided that the information is supplemented by clear indication of the direction of progress of work throughout the day. The Authorised Officer may audit the quality of the work undertaken throughout the course of the day.

7.29.3 The programme of work shall not be altered in any way without the prior approval of the Authorised Officer.

7.30 Performance Monitoring

7.30.1 The Council will require the Contractor to achieve the highest standard of Cleansing at each programmed Location on each day. The actual level of performance achieved on each day shall be measured by inspecting a random sample of programmed Locations after Cleansing operations are complete and noting the standard observed by comparison with the photograph standards within Appendix 9.9.3.

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Metropolitan Borough of Wirral
Environmental Stretscene Services Contract
Street Cleansing Specification
Part 7

7.30.2 Grade A denotes compliance with the Contract whilst any other grade will denote a failure to perform.

7.30. The random selection of Locations to be monitored will be computer generated by the Authorised Officer daily. It is envisaged that 5% of programmed work for a given day will be subject to inspection although a higher or lower percentage may be used depending on the level of confidence built up between the Contractor and the Council. For the avoidance of doubt the percentage sample size shall be determined at the sole discretion of the Authorised Officer.

7.30.4 Performance monitoring is to be carried out by the Contractor on seven days each Week, Monday to Sunday, with the Contractor’s representative being accompanied by an officer of the Council who will verify the grades being noted. In the case of disagreement between the Council’s and Contractor’s representative a photograph will be taken by the Council of the disputed Locations and the Authorised Officer will adjudicate after viewing the photographs.

7.30.5 It is hereby declared that the results of the daily performance monitoring inspections are to be accepted as being representative of the performance achieved across the Street Cleansing Service for that day and will be used in the calculation of performance in accordance with clause 4.14 and Clause 4.37 of the Conditions of Contract.

7.30.6 The Contractor is expected to carry out additional supervisory inspections in the normal course of business, but any such additional supervisory inspections will be excluded from the computation of the Contractor’s percentage performance for the purposes of Clause 4.14 and Clause 4.38 of the Conditions of Contract, unless in the opinion of the Authorised Officer, the inclusion of the additional supervisory inspections in the computation is statistically valid.

7.30.7 Without prejudice to the obligations of the Contractor to achieve the standards of Cleansing specified herein, should any supervisory inspection reveal that the standard of cleanliness at any Location inspected is below grade A, the Contractor will ensure that such Location is returned to grade A standard within the time stipulated in the Code of Practice on Litter and Refuse for the zone specified for that Location, namely:

7.30.7.1 In zone 1 areas, if at grade B, it shall be restored to grade A within six hours. If at grade C it shall be restored to grade A within three hours. If at grade D it shall be restored to grade A within one hour.

7.30.7.2 In zone 2 areas, if at grade B, it shall be restored to grade A within twelve hours. If at grade C it shall be restored to grade A within six hours. If at grade D it shall be restored to grade A within three hours.

7.30.7.3 In zone 3 areas, if at grade C, it shall be restored to grade A within twelve hours. If at grade D it shall be restored to grade A within six hours.

7.30.7.4 In zone 4 areas, if at grade C, it shall be restored to grade A within one Weeks. If at grade D it shall be restored to grade A within three days.

7.30.8 These standards shall apply between the hours of 0600 and 2000 daily in zone 2, zone 3 and zone 4 areas, and at all times in zone 1 areas.

7.30.9 The contractor shall keep electronically contemporaneous and accurate records of all operative and supervisory inspections it has carried out and of all remedial action taken pursuant to such inspections, and shall make such records available for inspection and copying by the Authorised Officer as and when required. The Contractor shall retain the inspection records for a minimum period of eighteen Months. The Contractor is hereby reminded that the daily random performance monitoring inspection records form the basis for the computation by the Contractor of its Weekly Certificate of Performance for the purposes of clause 4.14 and Clause 4.38 of the Conditions of Contract.

7.30.10 Notwithstanding the provisions of this clause the Council reserves the right at all times to inspect the quality of the work being undertaken by the Contractor for the purposes of assessing the effectiveness of the Street Cleansing Service.

7.31 Oil Pollution and Other Incidents

7.31.1 Due to the proximity of main shipping lanes and oil transfer facilities there are occasions when the Council may be required to respond to incidents of oil pollution in the area.

7.31.2 The Council may also, on occasion, be required to respond to other incidents in the area, natural or otherwise (for example terrorist attacks).

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Metropolitan Borough of Wirral
Environmental Stretscene Services Contract
Street Cleansing Specification
Part 7

7.31.3 In the event of any such incidents requiring a response by the Council then the Authorised Officer shall be empowered to divert some or all of the Contractors resources as deemed necessary by the Authorised Officer. The Contractor will not receive any additional payment for such diversions where they occur within the Contractors normal working hours and are directed to be undertaken in place of the Street Cleansing workload programmed for the duration of the diversion. Where the Authorised Officer requires assistance at other times outside the Contractors normal working hours then Daywork Rates shall apply.

7.31.4 Any specialised equipment, materials and protective clothing necessary to deal with such incidents will be provided by the Authorised Officer at the Council’s expense.

7.32 Parking

7.32.1 Some Streets in the Borough are regularly parked with cars that can cause difficulty in thoroughly Cleansing the edges of the carriageways. The Contractor will, however, be expected to make every effort to keep such Roads thoroughly Cleansed using any special equipment he may consider necessary. It is expected that the Contractor will have made himself familiar with the problems to be experienced and to overcome the difficulties in sweeping which parked cars can cause. Allowance should be made for this when submitting the tender, as no additional payment will be made by the Council in respect of this problem.

7.33 Supplementary Information

7.33.1 The Street Database computer file provided to the Contractor in Appendix 9.9.1 does not form part of the Contract documents and the Contractor is to verify the information himself, as its accuracy is not guaranteed or implied.

7.33.2 The data base file gives a guide to the lengths or surface areas of Locations to which this Contract applies and shows the zoning of those Locations.

7.34 Continuous Service Improvement

7.34.1 The Council have a policy of reviewing the Services it provides to the residents of the Borough and the Street Cleansing Service will be subject to such reviews.

7.34.2 Any review of the Service will be undertaken jointly between the Contractor and the Authorised Officer and will entail market research to canvas opinion from the residents of the Borough that the standard of Cleansing required by the Contract is being met.

7.34.3 The Contractor will cooperate with the Authorised Officer in improving the Service to meet the aspirations of the residents of the Borough. If such improvements are necessary to enable the originally Contracted Service to be performed then no additional payment will be made to the Contractor in making any such improvement.

7.35 Performance Monitoring (Street Cleansing)

7.35.1 At all times after the Commencement Date the Contractor will be required to assess performance in conjunction with the Council in accordance with the provisions of clause 7.30 of the Specification and to deliver a Certificate of Performance each week to the Authorised Officer to identify the percentage achieved through the performance of the Street Cleansing Services that Week.

7.35.2 Monitoring of a randomly selected statistically valid sample of work performed by the Contractor in a given period is to be used to assess the quality and extent of the Contractor’s performance during that period.

7.35.3 In the first instance, the computation of any default in performance by the Contractor shall be made in accordance with the provisions of clause 7.30.3 of the Specification, but, as set out below, should the Council in its absolute discretion consider that for any given period the use of the normal method of performance monitoring has not given or may not afford a sufficiently accurate measure of the Contractor’s default in performance for that period, the Council may carry out its own audit of the Contractor’s work which includes inspection of the physical Cleansing operation, all administration and documentation and the activities relating to the production of the performance assessment figures. In this case the results of such audit shall be used as the basis for calculating the performance by the Contractor.

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Metropolitan Borough of Wirral
Environmental Stretscene Services Contract
Street Cleansing Specification
Part 7

7.35.4 The certificate of performance shall be submitted to the Authorised Officer Weekly to show the percentage of the Services performed in strict accordance with the Contract. The performance percentage shall be calculated on the basis of the Contractors records of the inspections it has carried out pursuant to clause 7.30.3 of the Specification and in accordance with the following formulae:

100 – (Number of Items not Grade A upon Inspection x 100)

Total Number of Inspections           1

7.35.5 In order to calculate the deductions for failure in performance for any monthly period, the Contractor shall:

7.35.5.1 average the performance percentages for the days/weeks covered by that certificate of performance.

7.35.5.2 the deductions appropriate to that averaged figure should be ascertained from the Table 1, Performance Monitoring Valuations.

7.35.6 The Contractor shall undertake to exercise the utmost good faith in assessing its monthly percentage performance.

7.35.7 The Council may at any time carry out an audit inspection of the work undertaken by the Contractor in accordance with the agreed auditing procedure set out in clause 7.30.1, in order to ascertain whether the Contractor is complying fully with its obligations under the terms of the Contract. The Authorised Officer shall give the Contractor prior notice of the commencement on any such audit inspections and invite the Contractor to observe the audit.

7.35.8 The agreed auditing procedure will comprise one or any combination of the following, as the Council in its absolute direction may determine.

7.35.8.1 assessment and verification of the Contractors performance based on the Contractors documentation;

7.35.8.2 a physical inspection of a sample of locations where work has been programmed to be performed by the Contractor during the day based on an independent monitoring of a random sample of locations by the Auditor. The number of locations sampled shall not be less than that required of the Contractor under clause 7.30.3 of the Specification.

7.35.9 The results of the Authorised Officer’s audit will, as soon as practicable, be given to the Contractor. If the results of any audit inspection undertaken by the Council demonstrate a lower percentage performance for a given period than the percentage performance claimed by the Contractor, the percentage performance demonstrated by the audit shall be used by the Contractor for the purpose of calculating the deductions appropriate to that period for the purposes of clause 7.30.1 and could be used by the Council for the purposes of clause 4.50.

Table 1
Performance Monitoring Valuations
Street Cleansing Service

Contractors Performance Value of Lost Service
100-95% Nil
94% 1% OF CONTRACT SUM
93% 2%          ”
92% 3%          ”
91% 4%          ”
90% 5%          ”
89% 6%          ”
88% 7%          ”
87% 8%          ”
86% 9%          ”
85% 10%         ”
84% 11%         ”
83% 12%         ”

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Metropolitan Borough of Wirral
Environmental Stretscene Services Contract
Street Cleansing Specification
Part 7

82% 13%         ”
81% 14%         ”
80% 15%         ”
79% 16%         ”
78% 17%         ”
77% 18%         ”
76% 19%         ”
75% 20%         ”
         
74% 26%         ”
73% 27%         ”
72% 28%         ”
71% 29%         ”
70% 30%         ”
69% 31%         ”
68% 32%         ”
67% 33%         ”
66% 34%         ”

And thereafter the Value of Lost Service shall increase by 1% for every decrease of 1% in the Contractor’s performance figure so that if the Contractor’s performance figure falls to 1%, the value of Lost Service figure shall be 99%.

1% 99%         ”

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