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Appendix 3: Draft Inter Authority Agreement
Dated day of 2011
Mid Kent Waste Partnership
4 Way Inter Authority Agreement
in respect of the
management of the
Mid Kent Waste Project
CONTENTS
Clause Page
1. Definitions 3
2. Background 4
3. Interpretation 5
4. Vires 6
5. Commencement And Duration 6
6. Partners’ Obligations 6
7. Variation 7
8. Project Management 7
9. Review and Renewal of Arrangements 7
10. Mitigation 7
11. Claims 8
12. Financial Obligations 8
13. Withdrawal 9
14. Events Leading to Compensation 9
15. Dispute Resolution Procedure 10
16. Data Sharing 11
17. Assignment 11
18. Information and Confidentiality 11
19. Law of Conduct and Jurisdiction 11
20. Notices 11
21. Severability 12
22. Waiver 12
THE IAA is made on the day of 2011
BETWEEN
1) Ashford Borough Council of Tannery Lane, Ashford TN23 1PL; and
2) Maidstone Borough Council of King Street, Maidstone, Kent ME15 6JQ; and
3) Swale Borough Council of East Street, Sittingbourne, Kent, ME10 3HT; and
4) The Kent County Council of County Hall, Maidstone, ME14 1XQ
1. DEFINITIONS
|
Term |
Definition |
|
ABC |
Ashford Borough Council |
|
CIWM |
means the nominated representative of not less than Fellow rank of the Chartered Institute of Waste Management; |
|
Competitive Dialogue Procedure |
A tendering procedure under Regulation 18 of the Public Contracts Regulations 2006 |
|
Containerisation Funding |
Capital Funding as defined in Clause 12. |
|
Enabling Payment |
Fixed annual payments as defined in Clause 12.1-12.5 payable for the term of this agreement. |
|
Gross Avoided Disposal Cost Benefit |
Is forecast as £3,642k p.a and is the difference between the future disposal and processing cost of household waste from the Ashford, Maidstone and Swale District areas without the MKJWP and the future disposal and processing cost as a consequence of the MKJWP value. |
|
Household |
A unit of residential accommodation listed by the Valuation Office Agency as a unit on which Council Tax is payable |
|
IAA |
The 4 Way Inter Authority Agreement |
|
Joint Working Agreement(s) |
A legally binding agreement drafted in accordance with the principles of this IAA to reflect the governance of the contract between Ashford, Maidstone and Swale District Councils and the arrangements with KCC. |
|
KCC |
Kent County Council |
|
Lead Officer |
The officer responsible for the delivery of waste management services in each authority |
|
MBC |
Maidstone Borough Council |
|
Mid Kent Joint Waste Contract 2013 |
A contract to deliver waste management services to be entered into between ABC, MBC, SBC and a contractor |
|
MKBCs |
Mid Kent Borough Councils –namely Ashford Borough Council, Maidstone Borough Council and Swale Borough Council. |
|
MKJW Project |
A project to achieve effective cost minimisation for Kent council tax payers by putting in place waste arrangements across the WDA and the WCAs together with necessary delivery mechanisms |
|
MKJW Steering Group |
Officer Group established to develop and implement the MKJW Project. |
|
MKJW Project Board |
Officer Group established to oversee and manage the MKJW Contract.
|
|
Partners |
ABC, MBC, SBC and KCC |
|
Partnership |
The Partners working together in an evolving relationship which will be reflected in this IAA and in any further Joint Working Agreement(s) relating to the MKJW Project |
|
PCM |
Means the Preferred Collection Methodology and is the model for the kerbside collection of waste. This includes any variant collection methodology agreed during the course of the tendering process. |
|
the Project |
the Mid Kent Joint Waste Project |
|
SBC |
Swale Borough Council |
|
Steering Group |
Formed from Lead Officers from Partners with responsibility for progressing the Mid Kent Joint Waste Project. |
|
Supporting Collection Cost Payment |
Means the amount payable by KCC to the individual district authorities to compensate for the implementation of the PCM. |
|
Waste Services |
As described in the Mid Kent Joint Waste Contract 2013 |
|
WCA |
Waste Collection Authority |
|
WDA |
Waste Disposal Authority |
2. BACKGROUND
2.1 KCC is the WDA for its administrative area.
2.2 ABC, MBC, and SBC are the WCAs for their administrative areas.
2.3 The Partners commit themselves to the most economically advantageous and closest co-ordination possible of Waste Services in Mid Kent, within the law and practical achievement as envisaged within the Project.
2.4 In pursuance of such joint arrangements the Partners intend to enter into a contract or contracts for the provision by a contractor or contractors or to make other arrangements for the provision of Waste Services. The IAA between KCC, ABC, MBC and SBC must be in place prior to the publication of the MKJWC OJEU Notification.
2.5 The Partners have agreed to enter into this IAA for the purpose of regulating their respective rights and obligations to each other as a consequence of the joint arrangements in relation to the PCM.
2.6 This IAA sets out the legally binding arrangements of the Partners. Its terms shall be supplemented by one or more Joint Working Agreement(s) to be entered into by 1st April 2013 and updated each year thereafter.
2.7 It shall be a commitment of the Partners that over time, greater equity in the total cost of collection and disposal per Household shall be achieved.
3. INTERPRETATION
3.1 Except where the context otherwise requires:
i. the masculine includes the feminine and the neuter and vice versa;
ii. the singular includes the plural and vice versa;
iii. a reference in the IAA to any clause sub-clause paragraph Schedule appendix or annex is except where it is expressly stated to the contrary a reference to such clause sub-clause paragraph Schedule appendix or annex to the IAA;
iv. any reference to the IAA or to any other document shall include variation amendment or supplements to such document as may be effected from time to time in accordance with the relevant document;
v. a reference to a person includes firms, partnerships and corporations and their successors and permitted assignees or transferees;
vi. references to any statute or statutory provisions (including any EU Instrument) shall unless the context otherwise requires be construed as including references to any earlier statute or the corresponding provisions of any earlier statute where repealed or not directly or indirectly, amended, consolidated, extended or replaced by such statute or provisions or re-enacted in any such statute or provisions and to any subsequent statute directly or indirectly, amending, consolidating, extending, replacing or re-enacting the same and will include any orders regulations instruments or other subordinate legislation made under the relevant statute or statutory provisions;
vii. words preceding “include” “includes” “including” and “included” shall be construed without limitation by the words which follow those words unless inconsistent with the context and the rule of interpretation known as ejusdem generis shall not apply; and
viii. The list of contents and the headings to the clauses and parts of the IAA and to the paragraphs of the Schedules are for the ease of reference only and shall not affect the construction of the IAA.
4. VIRES
4.1.1 This IAA is entered into by the Partners under the statutory powers contained in Part II of the Environmental Protection Act 1990, S111 of the Local Government Act 1972, and s2 of the Local Government Act 2000. (Check up-to-date legislation referred to)
5. COMMENCEMENT AND DURATION
5.1 This IAA shall commence on the date hereof and will be in force between the parties until 21st October 2023 subject to the provisions for the withdrawal of individual Partners contained in Clause 17 or until superseded by any other agreement among the Partners or by a variation under Clause 9.
6. PARTNERS’ OBLIGATIONS
6.1 MKBCs commit to the PCM as far as practically possible across each MKBCs administrative area so as to reach the maximum number of Households
6.2 MKBCs commit to deliver recyclates (including food and composting materials) in accordance with the PCM to the transfer points and facilities specified by KCC and in accordance with the Mid Kent Joint Waste Contract 2013.
6.3 KCC will provide or procure processing capacity and or facilities and necessary haulage and transfer facilities thereto in accordance with the Mid Kent Joint Waste Contract 2013 for the waste streams collected as follows: -
· For ABC with effect from 1 April 2013
· For MBC with effect from 1 August 2013
· For SBC with effect from 14th December2013
6.4 The MKBCs agree to use best endeavours to keep Households within their administrative areas informed as to the new methods of waste collection.
6.5 All partners are to work towards providing the most cost effective service to Kent residents for waste/resource collection, processing and disposal;
6.6 KCC will provide funding to the MKBC’s in accordance with the Financial Obligations detailed at Paragraph 16 of this IAA.
6.7 KCC shall use its best endeavours to maximise the value of recycling income and minimise recyclate processing costs.
6.8 KCC will seek to share the appropriate proportion of any disposal benefits if the Allington contractual constraints that reduce the gross avoided disposal benefit of the MKJW Project are resolved and any potential future impact on the West Kent Council’s is quantified/addressed.
6.9 MKBC’s shall ensure that best endeavours are employed by the district to reduce contamination of recyclable/food waste materials
7. VARIATION
7.1 The Partners may vary any part of this IAA at any time as a result of an Act of Parliament or direction of Central Government or outcome of any review under clause 12 below that:
7.1a Fits within the scope of the IAA; and
7.1b Is to be effected in accordance with any officially authorised timetable that prevails
7.1c Any other related changes as agreed by all Partners.
8. PROJECT MANAGEMENT
8.1 The MKJWP Steering Group shall undertake to develop and implement the MKJW Project in accordance with their delegated powers of authority. Lead Officers will where appropriate refer decisions to their respective Authority Cabinet Members for determination.
8.2 As part of the Joint Working Agreements contract management arrangements shall be put in place.
9. REVIEW AND RENEWAL OF ARRANGEMENTS
9.1 This IAA and the Mid Kent Joint Waste Project will be reviewed on at least an annual basis in October of each year. Any of the Partners may require an interim review arising from changes in legislation or guidance. The annual review will consider any relevant matters including but not limited to the following matters (if relevant): -
· Changes in legislation or statutory guidance,
· The functioning of the arrangements,
· Significant changes in the financial environment affecting the parties,
· The Joint Municipal Waste Strategy for Kent
9.2 The final review of this IAA shall include consideration of whether to renew this IAA and, if so, the duration of such renewal.
9.3 Reviews will be undertaken by the Steering Group with assistance from each Partner’s s151 LGA 1972 officer and Legal Representatives.
10. MITIGATION
10.1 Each Partner shall at all times take reasonable steps to minimise and mitigate any loss for which the other Partners are entitled to bring a claim against that Partner pursuant to the IAA.
11. CLAIMS
11.1 Partners shall advise the MKJW Project Board of the risks of claims, and shall co-operate with each other in dealing with such claims in respect of this IAA. The Partners shall maintain all material details of claims and provide such details to other Partners promptly upon request.
11.2 A Partner carrying out actions in good faith on behalf of the Partnership shall not (other than in the case of fraud and/or clear bad faith) be liable to claims from the other Partners on the grounds that the actions that were taken were not the proper actions carried out properly or that the costs and liabilities incurred were not reasonably and properly incurred (as long as they were in fact incurred).
12. FINANCIAL OBLIGATIONS
12.1 KCC will pay ‘Enabling Payments’ and provide Containerisation Funding to the MKBCs. The timing of payments will be made in accordance with the agreed Joint Working Agreement.
12.2 The date when the Enabling Payments shall commence, the extent to which they are paid, frequency and method of payment and the phased introduction thereof will be detailed in the Joint Working Agreements.
12.3 In recognition that no further recycling credits will be paid, the value of the Enabling Payments will be a sum equal to:
a) The value of the recycling credits, paid in the last full financial year prior to the relevant Partner entering into the Mid Kent Joint Waste Contract 2013.
In 2010/11 the value of Recycling Credit Payments was as follows:
|
District |
Recycling Credit Payment £k |
|
Ashford |
262.8 |
|
Maidstone |
120.7 |
|
Swale |
301.0 |
|
Total |
684.5 |
PLUS
b) the following fixed amounts representing Collection Service Support Payments and Equalisation of Base Payment:
|
District |
Collection Service Support Payments £k |
Equalisation of Base Payment |
|
Ashford |
30.2 |
|
|
Maidstone |
|
212.0 |
|
Swale |
244.2 |
|
|
Total |
274.4 |
212.0 |
The Collection Service Support Payments reflect the additional funding support to be provided by KCC if required, to meet the District Savings target. The Equalisation of Base Payment reflects additional funding provided to MBC in recognition of the difference between its base funding and the other district partners.
12.4 KCC will only underwrite the Collection Service Support Payment providing District Partners ensure;
a) The MKJWP Contract Specification is consistent with the PCM;
b) Cross Boundary working is maximised;
c) That there is no cross-subsidy within the collection service contract pricing in respect of street cleansing services.
12.5 KCC will further underwrite up to 15% of the modelled collection savings forecast for MBC, amounting to potential additional funding of up to £86k should the modelled Collection savings fall short of the predicted values.
12.6 In addition to the above guaranteed Enabling Payments, KCC will, providing the forecast gross avoided disposal cost benefit of £3,642k is achieved, share 50% of the excess modelled avoided disposal benefit of £477k in accordance with the following:
|
District |
Excess Modelled Avoided Disposal Cost Benefit (not guaranteed) £k |
Pro Rata apportionment |
|
Ashford |
8.7 |
3.6% |
|
Maidstone |
179.4 |
75.3% |
|
Swale |
50.4 |
21.1% |
|
Total |
238.5 |
100% |
This payment is not guaranteed. Where no excess modelled avoided disposal cost benefit is generated no payment will be made. Where the excess modelled avoided disposal cost benefit is less than £477k KCC will share 50% of the achieved excess in accordance with the pro rata apportionment detailed in the table above.
12.6 The Containerisation Funding shall be made by KCC to all the MKBCs in response to operational requirements of the Mid Kent Joint Waste Contract 2013 moving to the PCM as follows:
|
District |
Containerisation Funding £k |
|
Ashford |
2,400.2 |
|
Maidstone |
396.6 |
|
Swale |
647.0 |
|
Total |
3,443.9 |
Should containerisation costs exceed the above limits for any reason then the additional cost will be funded from the gross avoided disposal cost benefit as necessary to implement the PCM. As a consequence the excess modelled avoided disposal benefit (detailed at 16.4) available for disaggregation will also fall and the pro rata apportionment will be employed to disaggregate the remaining excess.
12.7 Performance Tonnage Overrage
a) If the overall waste diversion of Paper/Card, Glass/Cans/Plastic and Food Waste exceeds the forecast level (as detailed within the Mid Kent Disaggregation appended to the IAA as Appendix 1) and the forecast gross avoided disposal cost benefit of £3,642k has been achieved then KCC will share 50% of the avoided disposal savings arising from the excess with the MKBCs.
b) The allocation between the MKBCs will be based on a simple formula pro-rata to their actual individual performance compared with the final model performance.
c) No savings will be disaggregated to any district which does not achieve the forecast target tonnage.
d) No savings will be disaggregated if the percentage of waste recycled across the MKJW area does not exceed the forecast recycling percentage of 44.4%. E.g. Increase in the volume of the total waste stream within the MKJW district caused by household growth or rising economic activity. No increase in garden waste collection will count towards achieving this recycling percentage.
For the avoidance of doubt no disaggregation will be undertaken in respect of any increase in Garden Waste collections.
The period over which the tonnage overrage assessment will be made and the timing of payments made as a consequence will be as agreed within the Joint Working Agreement.
The Project Board will review the Gross Avoided Disposal Cost Benefit generated in years 3/6/9 and 10 to share any excess disposal benefit (that is any remaining disposal benefit after all costs and performance tonnage payments have been taken into account for the duration of the review period).
12.8 Price Overrage – To be agreed prior to the award of contract and detailed within a revised IAA agreed by all parties and completed as soon as practicable in advance of that date.
12.9 For the avoidance of doubt, there will be no disaggregation of any collection savings.
12.10 Payment arrangements for Containerisation Funding will be made in accordance with the Joint Working Agreement.
13.1 Subject to Clause 17.2 any Partner may withdraw from the Partnership on 31 March in any given year by the giving of not less than 12 months notice in writing.
13.2 Notice under clause 17.1 cannot be given before the Partner proposing to withdraw from the Partnership has put forward its proposal to withdraw from the Partnership for consideration by the Partnership.
13.3 Notwithstanding the withdrawal of a Partner or Partners this IAA shall continue in full force and effect as regards the remaining Partners.
14 EVENTS LEADING TO COMPENSATION
14.1 In all or any of the following events howsoever arising including but not limited to Partner withdrawal:
(i) any of the MKBCs fail to implement or cease to operate the PCM in accordance with this IAA;
(ii) any of MKBCs fail to implement or cease to deliver recyclates in accordance with contractual requirements made by any of the Partners pursuant to this IAA;
(iii) KCC fails to pay the Enabling Payments in whole or in part as they fall due;
(iv) KCC fail to pay the Containerisation Funding as it falls due;
(v) KCC fail to share the benefits of the overall waste diversion above that projected as specified in this IAA increase (as detailed at 16.6 above);
(vi) KCC fails to provide or procure processing capacity and/or facilities and necessary haulage and transfer facilities in accordance with this IAA
then to the intent that the non-defaulting Partners are to be put into the position they would have been in had the event not occurred and had the Partner(s) in default performed their obligations in accordance with this IAA all non-defaulting Partners properly incurred costs and losses arising from it shall (subject to the non defaulting Partners’ duty to mitigate their losses) be paid by the partner who has ceased or has failed to carry out its obligations arising under this IAA. Failure to agree to such costs and losses shall be an issue to be dealt with under the dispute resolution procedure.
14.2 Notwithstanding the withdrawal of a Partner pursuant to clause 17.1 the obligations of the withdrawing Partner under clause 18.1 shall remain in full force and effect and shall be binding on the withdrawing Partner from the date of the agreement until such time as the withdrawing Partner has discharged its obligations under clause 18.1 in full.
15 DISPUTE RESOLUTION PROCEDURE
15.1 Any disputes and/or disagreements arising under or in connection with this IAA shall be resolved in accordance with this Clause.
15.2 If a dispute and/or disagreement arises in relation to any aspect of this IAA, then the matter shall initially be referred to the Chief Executives of the Partners to the dispute and/or disagreement.
15.3 If the Chief Executives fail to resolve a dispute or disagreement within twenty (20) business days of meeting then any Partner may refer the matter for resolution to the CIWM or such other party as the Partners may agree (or the CIWM may direct) for resolution by them or the exclusive jurisdiction of the Courts of England or otherwise.
15.4 Any dispute and/or disagreement to be so determined by the Chief Executives, CIWM or the Courts of England (as the case may be) under this IAA shall be promptly referred for determination to them and the Partners shall, on request, promptly supply to the Chief Executives or CIWM and the Courts all such assistance, documents and information as may be required for the purpose of determination and the Partners shall use all reasonable endeavours to procure the prompt determination of such reference.
15.5 The CIWM representative shall be deemed to act as an expert and not as an arbitrator and their determination shall (in the absence of manifest error) be conclusive and binding upon the Partners.
15.6 The costs of the resolution of any dispute and/or disagreement between the Partners under this IAA shall be borne equally by the Partners to the dispute in question save as may be otherwise directed by the Chief Executives, CIWM or the Courts of England (as the case may be).
16. DATA SHARING
16.1 Each Partner shall make available to the other free of charge (and hereby irrevocably licences the other Partners to use) all data that might reasonably be required by that Partner in relation to this agreement and each Partner shall ensure that it can make the data available to the other during the term of the IAA.
17. ASSIGNMENT
17.1 The rights and obligations of each of the Partners under this IAA shall not be assigned novated or otherwise transferred except to a successor Partner established by statute.
18. INFORMATION AND CONFIDENTIALITY
18.1 The Partners will be guided by a presumption of openness and transparency in all matters relating to the Project except to the extent that any information is or relates to:
(a) Confidential data in the ownership of a third party or
(b) Information which either is or may be treated as exempt within the meaning of Schedule 12A to the Local Government Act (as amended)
18.2 If a Partner (the “Receiving Partner”) receives a request under the Freedom of Information Act 2000 ("FOIA") it shall be for the Receiving Party to decide if such information should, as a matter of law, be disclosed and having acted reasonably and decided that it is legally obliged to disclose, it shall be entitled to so disclose.
18.3 The Receiving Partner shall use its reasonable endeavours to consult with those Partners that may be affected by such disclosure prior to deciding whether to disclose information pursuant to the FOIA but it shall not be obliged to so consult where to do so would put it in breach of this Act.
18.4 The Partners shall comply with the Data Protection Acts 1984 and 1998.
19. LAW OF CONDUCT AND JURISDICTION
19.1 The IAA shall be governed by the laws of England and Wales and the Partners submit to the exclusive jurisdiction of the courts of England and Wales.
20. NOTICES
20.1 All notices under this IAA shall be in writing and all certificates, notices or written instructions to be given under the terms of this IAA shall be served by sending the same by first class post, facsimile or by hand, leaving the same at:
Chief Executive
Ashford Borough Council
Tannery Lane,
Ashford
TN23 1PL
Fax: XXXXXXXXXXXXXX
Chief Executive
Maidstone Borough Council
King Street
Maidstone
Kent
ME15 6JQ
Fax: XXXXXXXXXXXXXX
Chief Executive
Swale Borough Council
East Street
Sittingbourne
Kent
ME10 3HT
Fax: XXXXXXXXXXXXXX
Corporate Director, Enterprise and Environment
Kent County Council
Invicta House, County Hall
Maidstone
Kent ME14 1XX
Fax: XXXXXXXXXXXXXX
21. SEVERABILITY
21.1 If any term condition or provision contained in the IAA shall be held to be invalid unlawful or unenforceable to any extent such condition or provision shall not affect the validity legality or enforceability of the remaining powers of the IAA.
22. WAIVER
22.1 The failure or delay by any Partner in exercising any right power or remedy under the IAA shall not in any circumstances impair such right power or remedy nor operate as a waiver of it.
IN WITNESS whereof the Parties have executed this Agreement as a Deed
The Common Seal of
ASHFORD BOROUGH COUNCIL
was hereunto affixed to this
IAA in the presence of:
………………………………………………
Authorised signatory
The Common Seal of
MAIDSTONE BOROUGH COUNCIL
was hereunto affixed to this
IAA in the presence of:
………………………………………………
Authorised signatory
The Common Seal of
SWALE BOROUGH COUNCIL
was hereunto affixed to this
IAA in the presence of:
………………………………………………
Authorised signatory
The Common Seal of
THE KENT COUNTY COUNCIL
was hereunto affixed to this
IAA in the presence of:
………………………………………………
Authorised signatory