"1995 Scheme"

means the National Health Service Superannuation Scheme (Scotland) established pursuant to regulations made in exercise of powers under sections 10 and 12 and Schedule 3 of the Superannuation Act 1972, the rules of which are set out in the National Health Service Superannuation Scheme (Scotland) Regulations 1995 (as amended from time to time)

"2008 Scheme"

means the National Health Service Pension Scheme (Scotland) the rules of which are set out in the National Health Service Pension Scheme (Scotland) Regulations 2008 (as amended from time to time)

"Actual Completion Date"

has the meaning given to it in the Project Agreements

"Additional Amount"

has the meaning given to it in Clause 16.5

"Administering Authority"

means theadministering authority for each relevant LGPS Fund and the Fund which they administer

"Admission Body"

means a transferee admission body for the purposes of regulations 5 of the LGPS (Administration) Regulations;

"Affect"

in relation to a Participant, a decision of the TPB affects that Participant if:

(a) it requires expenditure to be incurred by that Participant

(b) it requires that Participant to incur an actual or contingent liability

(c) it has an adverse impact upon the manner in which that Participant discharges a statutory function,

and 'Affected Participant' shall be construed accordingly

"Affected Authority"

means a Participant in relation to whose land and/or facilities Planning Permission and/or a Planning Agreement and/or an Infrastructure Agreement is required to enable Project Services to proceed on or at such land and/or facilities

"Affordable"

means within the capital funding envelope and/or revenue resource parameters, as appropriate determined by the Relevant Participant(s) as available for a proposed New Project

"Affordability Cap"

has the meaning given to it in paragraph 3.1 of Schedule Part 5 (Approval Process for New Projects)

"Agenda for Change"

means the NHS handbook entitled "Agenda for Change: NHS Terms and Conditions Handbook" as varied, supplemented or replaced from time to time

"Agreement"

means this agreement

"Annual Review"

has the meaning given to it in Clause 14.18

"Approval Criteria"

has the meaning given to it in paragraph 5.4 of Schedule Part 5 (Approval Process for New Projects)

"Approved Project"

means a New Project which is a Qualifying Project and which has Stage 2 Approval

"Approved Purposes"

means such purposes as any Participant may consider appropriate from time to time, including:

(a) each of the Participants carrying out their duties under this Agreement and/or any statutory functions which each of the Participants may have; and

(b) following termination of this Agreement and/or the exercise by the Participants of their rights under Clause 23.7, the carrying out of operations the same as, or similar to, the hubco Operations, the design and/or construction of the Facilities and/or the operation, maintenance or improvement of the Facilities

"Assigned Staff"

has the meaning given to it in paragraph 1.2 of Schedule Part 20 (Handover On Expiry Or Termination)

"Associate"

means:

(a) in respect of any body corporate:

(i) any other body corporate which is a subsidiary undertaking or a parent undertaking of such body corporate or a subsidiary undertaking of any parent undertaking of such body corporate;

(ii) any other body corporate of which that body corporate is a director;

(iii) any body corporate in the same group as such body corporate; and

(iv) any employee or director of that body corporate or of any body corporate in the same group;

(b) in respect of a partnership that is a legal person under the law by which it is governed:

(i) any body corporate of which that partnership is a director;

(ii) any employee of or partner in that partnership; and

(iii) any person who is an associate of a partner in that partnership;

(c) in respect of a partnership which is not a legal person under the law by which it is governed, any person who is an associate of any of the partners;

(in this definition in relation to a limited liability partnership for "director" read "member") and in the case of hubco shall also include each of the Shareholders and the C Shareholder Members (and their respective Associates)

"BCIS TPI"

means the Tender Price Index as published by the Building Cost Information Service from time to time, or failing such publication, such other index as the parties may agree, or as may be determined in accordance with Schedule Part 21 (Dispute Resolution Procedure), most closely resembles such index

"Beneficiary"

has the meaning given to it in Clause 16.3

"Broadly Comparable Scheme"

means the pension scheme or schemes nominated by hubco (or any relevantPartnering Subcontractor) in accordance with paragraph 2.7 of Section 1 (General) of Schedule Part 15 (Transfer of Employment and Pensions)

"Business Day"

means a day other than a Saturday, Sunday or a bank holiday in Scotland

"C Shareholder Member"

has the meaning given in the Shareholders Agreement

"CDM Regulations"

means the Construction (Design and Management) Regulations 2007

"Cessation Date"

means any date on which hubco (or any relevant Partnering Subcontractor) ceases to be an Admission Body other than as a result of the termination or expiry of this Agreement or because it ceases to employ any LGPS Participant Employees or any New Employees who join the LGPS pursuant to paragraph 1.35.1 of Section 1 (General) of Schedule Part 15 (Transfer of Employment and Pensions);

"Chairman"

has the meaning given to it in Clause 14.6

"Clinical Services"

means management, responsibility, administration and carrying out of the clinical, medical and associated services provided at NHS Participants' premises or the Facilities (which are not Partnering Services or Project Services)

"Code"

means [the Statutory Guidance to Local Authorities on Contracting 2006 issued by the Scottish Ministers; and/or

the document "Public Private Partnerships in Scotland - Protocol and Guidance Concerning Employment Issues" as published by the Scottish Government; and/or

or any such similar protocol, requirements or guidance issued and with which the Participants, hubco, or relevant Supply Chain Members may be required to comply

"Code Obligations"

means the express obligations of hubco in paragraphs 1.31 to 1.36 of Section 1 of Schedule Part 15 (Transfer of Employment and Pensions)

"Commencement Date"

means [date to be inserted]15

"Commercially Sensitive Information"

means the sub set of Confidential Information listed in column 1 of Section 1 (Commercially Sensitive Contractual Provisions) and column 1 of Section 2 (Commercially Sensitive Material) of Schedule Part 19 (Commercially Sensitive Information) in each case for the period specified in column 2 of Section 1 and Section 2 of Schedule Part 19 (Commercially Sensitive Information)

"Commissioners"

has the meaning given to it in Clause 10.10

"Community Health Partnerships"

means each community health partnership as defined in the Community Health Partnerships (Scotland) Regulations 2004 (Scottish SI 2004 No.386) covering all or any part of the Territory

"Community Planning Partnerships"

means each body (whether a body corporate or otherwise) or forum operating within the Territory as a focus for the discharge of the duties of the Local Authority Participants pursuant to Section 15 (and the Community Planning Statutory Guidance issued pursuant to Section 18) of the Local Government in Scotland Act 2003 in respect of community planning across the whole of such local authority's area

"Community Services"

means primary health, well-being, library services, education (including pre-school, primary and/or secondary), children's services, residential and social care, social housing and other community based services (including those provided by the police, fire and ambulance services) to the public within the Territory

"Comparator"

means the relevant element(s) and/or component(s) of the relevant project(s) from the Pricing Data which are:

(a) agreed between hubco and the Relevant Participants pursuant to paragraphs 2.2.11 and 2.3 of Schedule Part 5 (Approval Process for New Projects) or determined by the TPB pursuant to paragraph 2.4 of Schedule Part 5 (Approval Process for New Projects) for the purpose of determining the Project Development Fee Cap for a New Project; and/or

(b) agreed between hubco and the Relevant Participants pursuant to paragraph 3.1.1 of Schedule Part 6 (New Project Pricing Report) for the purposes of determining the appropriate cap for individual elements or components of the overall cost of New Projects to apply pursuant to paragraph 3.2 of Schedule Part 6 (New Project Pricing Report);

it being recognised that the Comparators for specific elements or components of a New Project may be from different projects within the Pricing Data

"Conducting Media"

has the meaning given to it, where applicable, in the Project Agreements

"Confidential Information"

means:

(a) information that ought tobe considered as confidential (however it is conveyed or on whatever media it is stored) and may include information whose disclosure would, or would be likely to, prejudice the commercial interest of any person, trade secrets, Intellectual Property Rights and know-how of either party and allPersonal Data and sensitive personal data within the meaning of the Data Protection Act 1988; and

(b) Commercially Sensitive Information

"Consents"

means all permissions, consents, approvals, certificates, permits, licences, statutory agreements and authorisations required by Law, and all necessary consents and agreements from any third parties needed to carry out the Partnering Services in accordance with this Agreement

"Contract Month"

means any period defined as such in any relevant Project Agreement(s)

"Contractor"

means a person engaged by a Project Service Provider to carry out design, construction, testing, commissioning and completion of any premises (including any temporary works) and the installation of any equipment pursuant to a Project Agreement

"Contract Year"

means in respect of the period from the Commencement Date to the following 31 March and subsequently each period of twelve (12) calendar months commencing on 1 April, until the final Contract Year which is the period from the 1 April prior to the Initial Expiry Date or, where applicable, the Extended Expiry Date

"Convictions"

means, other than in relation to minor road traffic offences, any previous pending prosecutions, convictions, cautions and binding-over orders (including any spent convictions as contemplated by section 1(1) of The Rehabilitation of Offenders Act 1974 by virtue of the exemptions specified in Part II of Schedule Part 1 of the Rehabilitation of Offenders Act 1974 (Exemptions) Order 1975 (SI 1975/1023) and the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003 (Scottish SI 2003/231)

"D&B Project"

means a Project for which the Project Agreement is based on the Template Project Agreement set out at Section 2 (Design and Build Development Agreement) of Schedule Part 7 (Template Project Agreements)

"DBFM Project"

means a Project for which the Project Agreement is based on the Template Project Agreement set out at Section 1 (Design, Build, Finance and Maintain) of Schedule Part 7 (Template Project Agreements)

"Default Interest Rate"

means 2% above LIBOR

"Default Termination Notice"

has the meaning given in Clause 23.12.1

"Design Data"

means all drawings, reports, documents, plans, software, formulae, calculations and other data relating to the design, construction, testing and/or operation of a Site

"Development Amount Analysis"

has the meaning given to it in the Template Project Agreement set out at Section 2 (Design and Build Development Agreement) of Schedule Part 7 (Template Project Agreements)

"Direct Losses"

means, subject to the provisions of Clause 16 (Indemnities), all damage, losses, liabilities, claims, actions, costs, expenses (including the cost of legal or professional services, legal costs being on an agent/client, client paying basis), proceedings, demands and charges whether arising under statute, contract or at common law but, to avoid doubt, excluding Indirect Losses

"Directive"

means EC Council Directive 2001/23/EC

"Disclosed Data"

means any data defined as such in Schedule Part 1 of each Project Agreement

"Dispute"

has the meaning given to it in Schedule Part 21 (Dispute Resolution Procedure)

"Dispute Resolution Procedure"

means the procedure set out in Clause 32 (Dispute Resolution) and Schedule Part 21 (Dispute Resolution Procedure)

"Employee Liability Information"

the employee liability information to be provided pursuant to Regulation 11 of the Transfer Regulations

"Environmental Information (Scotland) Regulations"

means the Environmental Information (Scotland) Regulations 2004 together with any guidance and/or codes of practice issued by the Scottish Information Commissioner or relevant Government Department in relation to such regulations

"Equal Pay Ruling"

has the meaning given to it in paragraph 1.18 of Schedule Part 15 (Transfer of Employment and Pensions)

"Equality Requirements"

means Equal Pay Act 1970, Sex Discrimination Act 1975, the Race Relations Act 1976, the Equality Act 2010, the Human Rights Act 1998, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Age) Regulations 2006

"Extended Expiry Date"

means the date falling five (5) years from the Initial Expiry Date in the event written notice is served in accordance with Clause 3.2

"Facilities"

means the buildings and other facilities, together with all supporting infrastructure (including Plant and Group 1 Equipment), Conducting Media and amenities located at any Site as required to be provided by a Project Service Provider or in respect of which FM Services are to be provided by a Project Service Provider in terms of any Project Agreement, to enable:

(a) hubco to comply with its obligations under this Agreement and any Project Service Provider to comply with its obligations under its Project Agreements all as the same may be varied, amended or supplemented from time to time in accordance with this Agreement or the relevant Project Agreements;

(b) hubco or any Project Service Provider to comply with any agreement between hubco and a Participant in terms of Clause 9.3

"Facilities Requirements"

means the construction and general facilities requirements of the particular Project Agreement Counterparty as defined in and set out in each relevant Project Agreement

"Fees Regulations"

means the Freedom of Information (Fees for Required Disclosure) (Scotland) and Data Protection Regulations 2004

"Fire Authority"

means a fire and rescue authority established under the Fire (Scotland) Act 2005

"First Party"

has the meaning given to it in Clause 10.10

"FM Services"

means maintenance and operational services provided or to be provided to accommodation used in the delivery of Community Services within the Territory, including (as the case may be) building maintenance, security and grounds maintenance

"FOI(S)A"

means the Freedom of Information (Scotland) Act 2002 and any subordinate legislation (as defined in section 84 of the Freedom of Information (Scotland) Act 2002) made under the Freedom of Information (Scotland) Act 2002 from time to time together with any guidance and/or codes of practice issued by the Scottish Information Commissioner or relevant Government Department in relation to such Act

"FOI(S)A Code"

has the meaning given to it in Clause 30.7

"Force Majeure"

means any of the following events or circumstances:

(a) war, civil war, armed conflict or terrorism; or

(b) nuclear contamination unless in any case the party claiming the benefit of relief (or a hubco Party or Participant Party as the case may be) is the source or cause of the contamination; or

(c) chemical or biological contamination of the Works and/or the Facilities and/or the Site from any of the events referred to in paragraph (a) above; or

(d) pressure waves caused by devices travelling at supersonic speeds,

which directly causes any party to be unable to comply with all or a material part of its obligations under this Agreement

"Funders' Direct Agreement"

means, where applicable, the agreement to be entered into between the Funders and each Project Service Provider substantially in the form set out in the Template Project Agreement at Section 1 (Design, Build, Finance and Maintain) of Schedule Part 7 (Template Project Agreements)

"Funders"

means all or any of the persons who provide senior financing or senior funding in respect of Project Services under the Funding Agreements including, where the context so permits, prospective senior financiers or senior funders, excluding Project Agreement Counterparties in respect of payments made by them under Project Agreements

"Funding Agreements"

means all or any of the agreements or instruments to be entered into by a Project Service Provider or any of their Associates relating to the financing of its business of providing services pursuant to the terms of any Project Agreements, excluding always the Project Agreements themselves

"Future Service Provider"

means any service provider who shall provide any services equivalent to the Partnering Services immediately after termination or expiry of this Agreement or suspension of exclusivity in respect of such Partnering Services

"Good Industry Practice"

means using standards, practices, methods and procedures conforming to the Law and exercising that degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in a similar type of undertaking under the same or similar circumstances

"Government"

means the government of the United Kingdom and/or the Scottish Government

"GP"

means a person who is registered as a fully registered medical practitioner with the General Medical Council under the provisions of the Medical Act 1983 or any subsequent or similar legislation

"Group 1 Equipment"

has the meaning given to it, where applicable, in the Project Agreements

"H&S Conviction"

has the meaning given in Clause 23.1.5

"Health and Safety Regime"

means the Food Safety Act 1990 (and associated regulations), the Health & Safety Act 1974 (and associated regulations), the Fire Precaution Act 1971, the Environmental Protection Act 1990, Sewerage (Scotland) Act 1986, Control of Pollution Act 1974, Water (Scotland) Act 1980, the Water Environment and Water Services (Scotland) Act 2003 and any similar or analogous health, safety or environmental legislation in force from time to time

"Health Board"

means a health board established under the National Health Service (Scotland) Act 1978

"Holding Company"

shall be construed in accordance with section 1159 and 1173 of the Companies Act 2006

"hub Objectives"

means the following key objectives of the hub initiative across Scotland:

(a) to provide enhanced local services by increasing the scale of joint service working and integration between Community Planning Partnerships, including the third sector, across Scotland to deliver greater efficiency in procurement and better outcomes at the point of service delivery;

(b) to deliver a sustained programme of joint asset management and investment into community based facilities and developments so that more services are provided locally in communities through multi-disciplinary teams working (wherever possible and appropriate) from single sites;

(c) to establish a more efficient and sustainable procurement methodology for public sector bodies that:

(i) reinforces joint strategic planning and delivery;

(ii) is stable and long-term;

(iii) delivers demonstrably better value for money than current procurement arrangements;

(iv) is flexible in its ability to respond to evolving service strategies and in being able to deliver through different contractual/ funding routes;

(v) is able to generate sufficient project size, volume and deal flow to attract private finance into the delivery and long-term management of the service;

(vi) increases opportunities for local employment and training; and

(vii) provides a focus for community engagement;

(d) to share learning and improve the procurement process;

(e) to deliver facilities for Community Services that meet public sector policy objectives for design quality and sustainability; and

(f) to facilitate and improve the level of stakeholder engagement in the planning of services and development of facilities for Community Services

"hubco Operations"

means the management and provision of the Partnering Services and the performance of all other obligations of hubco under this Agreement from time to time

"hubco Party"

means any of hubco's agents (including hubco's Representative), subsidiaries and contractors (including without limitation any Partnering Subcontractor and any Project Service Provider) and its or their subcontractors of any tier and its or their directors, officers, employees and workers in relation to the provision of Services arising out of this Agreement and "hubco Parties" shall be construed accordingly

"hubco Performance Report"

means a report to be issued by hubco reporting on hubco's performance and the performance of Partnering Subcontractors, Project Service Providers and Supply Chain Members against the Key Performance Indicators, in respect of the period ending on the most recent Review Date, including analysis of whether the Track Record Test has been passed or failed and identifying any Significant Performance Failures or potential Significant Performance Failures

"hubco's Representative"

means the person appointed by hubco pursuant to Clause 12

"Identified Projects"

means [insert names of Projects listed as Identified Projects in the ITSFT]16

"Improvement Programme"

has the meaning given in Clause 23.4.1(b)(ii)

"Incurred Project Development Fee"

has the meaning given to it in paragraph 1.9 of Schedule Part 4 (Partnering Services Costs)

"Indemnifier"

has the meaning given to it in Clause 16.3

"Indirect Losses"

means loss of profits, loss of use, loss of production, loss of business or loss of business opportunity or any consequential loss or indirect loss of any nature

"Information"

has the meaning given to it under section 73 of the Freedom of Information (Scotland) Act 2002

"Information System"

means a system for generating, sending, receiving, storing or otherwise processing electronic communications

"Infrastructure Agreement"

means an agreement with any public or private utility drainage, sewerage, water, electricity, gas or telecommunications undertaker, authority or company or with any service provider or company body or authority for the requisitioning, design, commissioning, installation, laying, relaying, construction, repair, maintenance, adoption use or diversion and/or connection to any services and service and/or conducting media of any kind including without prejudice to the generality thereof gas, water, electricity, television, signals and pulses, telecommunications, drainage, roads, sewers, footways, footpaths, bridle ways, pipes, drains, sewers, wires, cables, conduits and apparatus (and including for the avoidance of doubt any agreement under the Sewerage (Scotland) Act 1968, the Water (Scotland) Act 1980 or the Roads (Scotland) Act 1984)

"Initial Expiry Date"

has the meaning given to it in Clause 3.1

"Initial New Project"

means the first New Project proposed by hubco for which Stage 2 Approval is obtained

"Insolvency Event"

means, in respect of any company, any of the following:

(a) any arrangement or composition with or for the benefit of its creditors which does not involve a continuation of its business in the same or substantially the same form (including any voluntary arrangement as defined in the Insolvency Act 1986) being entered into by or in relation to the person in question;

(b) a supervisor, receiver, administrator, administrative receiver or other encumbrances taking possession or being appointed over, or any distress, execution or other process being levied or enforced (and not being discharged within ten (10) Business Days) upon, the whole or part of the assets of the company;

(c) the company ceasing to carry on business;

(d) a petition being presented (and not being discharged within twenty (20) Business Days) or a resolution being passed or an order being made for the administration or the administration, winding-up, bankruptcy or dissolution of the company; and

(e) the company suffering any event analogous to any of the foregoing in any jurisdiction in which it is incorporated, established or resident

"Insurances"

means, as the context requires, all or any of the insurances required to be maintained by hubco pursuant to this Agreement

"Intellectual Property"

means all registered or unregistered trade marks, service marks, patents, registered designs, utility models, applications for any of the foregoing, copyrights, unregistered designs, the sui generis rights of extraction relating to databases, trade secrets and other confidential information or know-how

"Intellectual Property Rights"

means the Intellectual Property which (or the subject matter of which) is created, brought into existence, acquired, used or intended to be used by hubco, any hubco Party or by other third parties (for the use by or on behalf of or for the benefit of hubco) for the purposes of the Partnering Services, the design or construction of the Facilities, the operation, maintenance, improvement and/or testing of the Facilities or the conduct of any other Project Services or otherwise for the purposes of this Agreement

"Key Performance Indicators"

means, subject to Clause 14.17, the key performance indicators set out in Section 3 (Performance Measurement) of Schedule Part 3 (Partnering Services)

"Law"

means:

(a) any applicable statute or proclamation or any delegated or subordinate legislation;

(b) any enforceable community right within the meaning of section 2(1) European Communities Act 1972;

(c) any applicable guidance, direction or determination with which any of the Participants and/or hubco is bound to comply to the extent that the same are published and publicly available or the existence or the contents of them have been notified to hubco by the Participants; and

(d) any applicable judgement of a relevant court of law which changes binding precedent in Scotland, in each case in force in Scotland

"LGPS"

means the Local Government Pension Scheme (Scotland) established pursuant to regulations made in exercise of powers under sections 7 and 12 and Schedule 3 of the Superannuation Act 1972 (as amended from time to time)

"LGPS (Administration) Regulations"

means the Local Government Pension Scheme (Administration) (Scotland) Regulations 2008

"LGPS (Compensation) Regulations"

means the Local Government (Discretionary Payments and Injury Benefits) (Scotland) Regulations 1998

"LGPS Participant Employee"

means a Transferring Employee who is a member of or who is entitled to be a member of the LGPS on or immediately before the Transfer Date

"LIBOR"

means the rate per annum determined by Barclays Bank plc to be the offered rate for six (6) month sterling deposits in the London interbank market which appears on Telerate Page 3750 (or such other page as may replace that page on the Dow Jones Telerate service)

"Local Authority"

means a local authority established under the Local Government etc. (Scotland) Act 1994

"Local Government Requirements"

means all local government circulars, guidance, official requests or requirements for the time being in force, but only to the extent that the same are published and publicly available or the existence and contents of them have been notified to hubco by a Participant

"Local Authority Participant"

means a Participant that is a Local Authority, a Police Board or Fire Authority

"Local Planning Authority"

means the planning authority to whom pursuant to the provisions of the Planning Act, a Planning Application should be made in respect of proposed Works

"Major Capital Projects"

means new build projects, including all plant, equipment, fixtures and fittings therein (excluding variations or alterations arising under existing Project Agreements), having a capital value in excess of £750,000 (index linked from April 2010)

"Market Testing Dates"

has the meaning set out in Schedule Part 6 (New Project Pricing Report)

"Market Testing"

has the meaning set out in Schedule Part 6 (New Project Pricing Report) and 'Market Test' shall be construed accordingly

"MIPS"

means the Median Index of Public Sector Building Tender Prices as published by DoH from time to time, or failing such publication, such other index as the parties may agree, or as may be determined in accordance with Schedule Part 21 (Dispute Resolution Procedure), most closely resembles such index

"Named Employee"

has the meaning given to it in Clause 20.5

"NCC"

means the National Computing Centre Limited (or any body that may supersede or replace it from time to time)

"New Employee Dispute Resolution Procedure"

means the procedure set out in Appendix 1 (New Employee Dispute Resolution Procedure) to Schedule Part 15 (Transfer of Employment and Pensions)

"New Employees"

those employees engaged by hubco and/or any Partnering Subcontractor to provide the Partnering Services (excluding for the avoidance of doubt any Transferring Employees) who will be working alongside the Transferring Employees

"New Project"

means:

(a) a requirement for Required Facilities by the Participants; and

(b) any requirement for Project Services pursuant to Clause 9.3 which does not relate to Required Facilities;

"New Project Approval Process"

means the process for obtaining approval of New Projects as detailed in Schedule Part 5 (Approval Process for New Projects)

"New Project Approval Submissions"

means, in relation to any New Project or Approved Project, the relevant Stage 1 Submission and Stage 2 Submission

"New Project Request"

has the meaning given to it in paragraph 3.1 of Schedule Part 5 (Approval Process for New Projects)

"NHS Compensation Regulations"

means The National Health Service (Compensation for Premature Retirement) (Scotland) Regulations 2003 (as amended from time to time)

"NHS Participant"

means a Participant that is a NHS body

"NHS Participant Employee"

means a Transferring Employee who is a member or is entitled to be a member of the NHS Pension Scheme on or immediately before the Transfer Date

"NHS Pension Scheme"

means the 1995 Scheme and/or the 2008 Scheme (as appropriate)

"NHS Pension Scheme Regulations"

means The National Health Service Superannuation Scheme (Scotland) Regulations 1995 (as amended from time to time) and/or the National Health Service Pension Scheme (Scotland) Regulations 2008 (as amended from time to time) (as appropriate)

"NHS Requirements"

means Health Building Notes, Health Technical Memoranda, all Executive Letters, Health Service Guidelines, Health Circulars of the NHS and such other requirements as are designated NHS Requirements in the Facilities Requirements and Service Level Specifications and any similar official requests, requirements and guidance having similar status for the time being in force, but only to the extent that the same are published and publicly available or the existence and contents of them have been notified to hubco by a Participant

"Non Scheduled Costs"

has the meaning given to it in Section 4 (Partnering Services Costs Rates) of Schedule Part 3 (Partnering Services)

"Ongoing Partnering Services"

means the Partnering Services listed in paragraph 1.1.3(a) of Section 1 (Specification) of Schedule Part 3 (Partnering Services)

"Participant"

means any party to this Agreement from time to time (other than hubco)

"Participant Default Notice"

has the meaning given to it in Clause 22.2.2(b)

"Participant Event of Default"

has the meaning given to it in Clause 22.1

"Participant Event of Default Compensation Sum"

has the meaning given to it in paragraph 2 of Section 1 (Participant Event of Default Compensation Sum) of Schedule Part 14 (Compensation on Participant Event of Default and Termination)

"Participant Event of Default Termination Sum"

has the meaning given to it in paragraph 2 of Section 2 (Participant Event of Default Termination Sum) of Schedule Part 14 (Compensation on Participant Event of Default and Termination)

"Participant Party"

means any of a Participant's agents (including a Participant's Representative), contractors and subcontractors of any tier and its or their directors, officers and employees but excluding hubco and any hubco Party, any Project Service Provider or Supply Chain Member (in their capacity as such) and "Participant Parties" shall be construed accordingly

"Participants' Costs"

has the meaning given in Clause 23.13

"Participants' Policies"

means those policies of any Participant intimated in writing to hubco in the event of a Relevant Transfer as amended from time to time and "Participant Policy" shall be construed accordingly

"Participants' Representatives"

means the persons appointed by each of the Participants in accordance with Clause 12, and Participant's Representative shall be construed accordingly

"Parties"

means each of hubco and the Participants and "Party" means any of them

"Partner Admission Agreement"

means an admission agreement entered into in accordance with regulation 5 of the LGPS (Administration) Regulations by the Administering Authority and hubco or any relevant Partnering Subcontractor (as appropriate) and a template for which is set out at Schedule Part 18 (Partner Admission Agreement)

"Partnering Services"

means the services to be delivered under this Agreement set out in paragraphs 1.2 to 1.4 (inclusive) of Section 1 (Specification) of Schedule Part 3 (Partnering Services) and the performance by hubco of its obligations hereunder

"Partnering Services Costs"

means the costs of hubco in providing the Partnering Services, including all out of pocket expenses and disbursements reasonably, properly and necessarily incurred in connection therewith

"Partnering Services Data"

means:

(a) all drawings, reports, documents, plans, software, formulae, calculations and all other data relating to or arising out of the provision of the Partnering Services; and

(b) any other materials, documents and or data acquired, brought into existence or used in relation to the hubco Operations or this Agreement

"Partnering Services Method Statement"

means, in respect of any Partnering Service, the applicable procedures and methods for delivery of such Partnering Service, as set out at Section 5 (Partnering Services Method Statements) of Schedule Part 3 (Partnering Services)

"Partnering Subcontractor"

means any subcontractor (of any tier) of hubco engaged from time to time as may be permitted by this Agreement to provide all or any of the Partnering Services

"Personal Data"

has the meaning given to it in section 1(1) Data Protection Act 1998

"Planning Act"

means the Town and Country Planning (Scotland) Act 1997, the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 and the Planning (Hazardous Substances) (Scotland) Act 1997

"Planning Advocate"

means a specialist planning advocate of at least ten (10) years call agreed by the parties or, in default of agreement within fourteen (14) days of one Party making a request to the others as to the identity of such person, appointed following the application of any Party by the Faculty of Advocates

"Planning Agreement"

means an agreement or obligation pursuant to the provisions of section 75 Town and Country Planning (Scotland) Act 1997 or section 69 of the Local Government (Scotland) Act 1973 or an infrastructure agreement pursuant to the Roads (Scotland) Act 1984 or the Sewerage (Scotland) Act 1968 or Water (Scotland) Act 1980

"Planning Appeal"

means an appeal to the Scottish Ministers pursuant to the provisions of section 47 of the Town and Country Planning (Scotland) Act 1997 and/or section 19 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 and/or section 19 of the Planning (Hazardous Substances) (Scotland) Act 1997 in respect of or arising out of a Planning Application

"Planning Application"

means an application/s for Planning Permission as may be necessary for the carrying out of Project Services and/or use or operation of Facilities

"Planning Call-In"

means a direction by the Scottish Ministers under the provisions of section 46 of the Town and Country Planning (Scotland) Act 1997 and/or section 11 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 and/or section 18 of Planning (Hazardous Substances) (Scotland) Act 1997 to recover jurisdiction over a Planning Application from the Local Planning Authority

"Planning Permission"

means any planning permission, planning permission in principle, approval, consent or agreement required by a condition imposed on a grant of planning permission in principle, listed buildings consent, conservation area consent, hazardous substance consent and/or other consent or approval reasonably required from time to time for the provision of Project Services or the grant of an approval by the Scottish Ministers on a Planning Appeal or Planning Call-In

"Planning Proceedings"

means any legal proceedings instigated by any person either for judicial review or pursuant to the provisions of section 239 of the Town and Country Planning (Scotland) Act 1997 and/or section 58 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 and/or section 20 of Planning (Hazardous Substances) (Scotland) Act 1997 in respect of any decision by the Local Planning Authority or Scottish Ministers in respect of a Planning Application, Planning Permission or Planning Appeal

"Plant"

has the meaning given to it, where applicable, in the Project Agreements

"Police Board"

means a police authority established under the Police (Scotland) Act 1967

"Pricing Data"

the data set out at Appendix 1 (Pricing Data) to Schedule Part 4 (Partnering Services Costs)

"Pricing Report"

has the meaning given in Schedule Part 6 (New Project Pricing Report)

"Prohibited Act"

means:

(a) offering, giving or agreeing to give to any Participant or any other public body or to any person employed by or on behalf of any Participant or any other public body any gift or consideration of any kind as an inducement or reward:

(i) for doing or not doing (or for having done or not having done) any act in relation to the obtaining or performance of this Agreement or any other agreement with any Participant or any other public body; or

(ii) for showing or not showing favour or disfavour to any person in relation to this Agreement or any other agreement with any Participant or any other public body;

(b) entering into this Agreement or any other agreement with any Participant or any other public body in connection with which commission has been paid or has been agreed to be paid by hubco or on its behalf, or to its knowledge, unless before the relevant agreement is entered into particulars of any such commission and of the terms and conditions of any such agreement for the payment of such commission have been disclosed in writing to that Participant;

(c) committing any offence:

(i) under the Prevention of Corruption Act 1889 1916;

(ii) under any Law creating offences in respect of fraudulent acts; or

(iii) at common law, in respect of fraudulent acts in relation to this Agreement or any other agreement with any Participant or any other public body; and/or

(d) defrauding or attempting to defraud or conspiring to defraud any Participant or any other public body

"Project"

means the carrying out of any works and the provision of services under a Project Agreement

"Project Agreement"

means the agreement entered into or to be entered into between a Project Service Provider and the relevant Project Agreement Counterparty or other third party for the provision by the Project Service Provider of Project Services

"Project Agreement Counterparty"

means a party to a Project Agreement other than the Project Service Provider

"Project Development Fee"

means the fee payable to hubco in respect of the provision of Project Development Partnering Services in respect of a specific New Project, determined in accordance with Schedule Part 4 (Partnering Services Costs) and Schedule Part 5 (Approval Process for New Projects)

"Project Development Fee Cap"

means, in respect of:

(a) the New Project Approval Process for each New Project;

(b) the work carried out so as to obtain Stage 1 Approval for each New Project;

(c) the work carried out so as to obtain Stage 2 Approval for each New Project; and

(d) each relevant element or component of the Project Development Partnering Services as shown in proforma 2 within the Pricing Data),

as the case may be, the level of maximum Project Development Fee that can be charged by hubco, calculated in accordance with paragraph 2 of Schedule Part 4 (Partnering Services Costs)

"Project Development Partnering Services"

means the Partnering Services listed in paragraph 1.1.3(b) of Section 1 (Specification) of Schedule Part 3 (Partnering Services)

"Project Service Provider"

means any person that is obliged, pursuant to a Project Agreement, to provide the Project Services thereunder and, where not hubco, is a Subsidiary of hubco

"Project Service Provider Default"

has the meaning given to it in Clause 23.4.3

"Project Services"

means:

(a) services required to be provided in relation to the design, construction, testing, commissioning and completion of premises (including any temporary works) and the installation of equipment; and/or

(b) the provision of FM Services

whether or not in relation to Required Facilities

"Providing Party"

has the meaning given to it in Clause 51.3

"PSDP(s)"

[ ] Limited (registered in England/Scotland No [ ]) whose registered office is at [ ]

"PSP Rectification Programme"

has the meaning given in Clause 23.9.2

"Qualifying Projects"

means:

(a) the Identified Projects; and

(b) all Major Capital Projects (whether or not also involving FM Services) identified by:

(i) any NHS Participant (which term for the purpose of this definition shall exclude the Scottish Ambulance Service), where such project has been identified by such Participant as being required to enable them to provide primary and community based health services in the Territory; or

(ii) any NHS Participant (which term for the purpose of this definition shall exclude the Scottish Ambulance Service) and any one or more Local Authority Participant jointly where the NHS Participant is to lead the procurement and such project has been identified by such NHS Participant as being required to enable them to provide primary and community based health services in the Territory,

(c) capital projects (whether or not Major Capital Projects and whether or not also involving FM Services) identified by a Participant or two or more Participants jointly as required for the provision of Community Services in the Territory where such projects have been expressly designated as a Qualifying Project within the TDP as updated in accordance with Section 2 (Updated TDP) of Schedule Part 11 (Territory Delivery Plan) and approved by the TPB pursuant to Clause 14.4; and

(d) projects requiring the provision of FM Services that are not being provided as part of any other Qualifying Project where such projects have been expressly designated as a Qualifying Project within the TDP as updated in accordance with Section 2 (Updated TDP) of Schedule Part 11 (Territory Delivery Plan) and approved by the TPB pursuant to Clause 14.4

"Recognition Agreement"

means any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers associations relating to the recognition of a trade union or unions by an employer to any extent for the purposes of collective bargaining (as defined by section 178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992)

"Reinstatement Notice"

has the meaning given in Clause 23.10.1

"Relevant Authority"

means any court with jurisdiction and any local, national or supra-national agency, inspectorate, minister, ministry, official, public or statutory person of the government of Scotland, the United Kingdom or the European Union

"Relevant Government Departments"

means any Government department

"Relevant Participant(s)"

has the meaning given to it in paragraph 3.1 of Schedule Part 5 (Approval Process for New Projects)

"Relevant Service Transfer Date"

has the meaning given to it in paragraph 1.1 of Section 1 (General) of Schedule Part 15 (Transfer of Employment and Pensions)

"Relevant Transfer"

means a relevant transfer for the purposes of the Transfer Regulations

"Relief Event"

has the meaning given to it in the relevant Project Agreement

"Remediation Programme"

has the meaning given in Clause 23.4.1(b)(ii)

"Requesting Party"

has the meaning given to it in Clause 51.3

"Requests for Information"

shall have the meaning set out in the FOI(S)A or the Environmental Information (Scotland) Regulations as relevant (where the meaning set out for the term "request" shall apply)

"Required Facilities"

means Facilities to be provided or in respect of which services are to be provided pursuant to Qualifying Projects

"Retendering Information"

has the meaning given to it in paragraph 1.9 of Schedule Part 20 (Handover On Expiry Or Termination)

"Review Date"

means each anniversary of the Commencement Date

"RPI"

means the Retail Prices Index (All Items) as published by the Office for National Statistics from time to time, or failing such publication, such other index as the parties may agree, or as may be determined in accordance with Schedule Part 21 (Dispute Resolution Procedure), most closelyresembles such index

"Satisfactory Planning Permission"

means a Planning Permission which is not subject to an Unreasonable Condition

"Scottish Futures Trust" or "SFT"

means Scottish Futures Trust Limited (Company Number SC348382), having its registered office at 15 Atholl Crescent, Edinburgh EH3 8HA

"Scottish Government"

means the government of Scotland, established pursuant to the Scotland Act 1998

"Scottish Ministers"

means the Scottish Ministers, Victoria Quay, Edinburgh EH6 6QQ and their successors

"Second Party"

has the meaning given to it in Clause 10.10

"Service Level Specifications"

has the meaning given to it in Schedule Part 1 of each relevant Project Agreement

"Service Provider"

means any person engaged from time to time as may be permitted by this Agreement and/or any Project Agreement to procure the provision of the Services (or any of them) and including each Project Service Provider

"Services"

means the Partnering Services and the Project Services

"Shareholder"

means a shareholder in hubco from time to time

"Shareholders Agreements"

means an agreement or agreements of today's date between hubco, PSDP(s), SFT, and [public sector shareholders identity to be specified], including any agreement relating to the subscription of equity (or other shareholder funding) by the shareholders of hubco in hubco or any Holding Company of hubco

"Significant Performance Failure"

means an event identified as such in Section 3 (Performance Measurement) of Schedule Part 3 (Partnering Services)17, disregarding the extent to which such failure is attributable to a Relief Event or the occurrence of Force Majeure

"Single Outcome Agreement"

means each agreement entered into between (1) a Local Authority Participant and/or Community Planning Partnership and (2) the Scottish Government in implement of the Concordat between Scottish Government and COSLA signed in November 2007

"Site"

has the meaning given to it in the relevant Project Agreement

"Specific Requirement"

has the meaning given to it in paragraph 2.1 of Schedule Part 5 (Approval Process for New Projects)

"Stage 1 Approval"

has the meaning given to it in paragraph 4.8 of Schedule Part 5 (Approval of New Projects)

"Stage 2 Approval"

has the meaning given to it in paragraph 5.6.1 of Schedule Part 5 (Approval of New Projects)

"Stage 1 Submission"

has the meaning given to it in paragraph 4.1 of Schedule Part 5 (Approval Process for New Projects)

"Stage 2 Submission"

has the meaning given to it in paragraph 5.1 of Schedule Part 5 (Approval Process for New Projects)

"Stakeholder Representatives"

has the meaning given to it in Clause 14.1.4

"Strategic Support Partnering Services"

means the Partnering Services listed in paragraph 1.1.3(c) of Section 1 (Specification) of Schedule Part 3 (Partnering Services)

"Subsidiary"

shall be construed in accordance with section 1159 and 1173 of the Companies Act 2006

"Supply Chain Agreements"

means the agreements between:

(a) hubco and its direct Partnering Subcontractors;

(b) a Partnering Subcontractor and its subcontractors in relation to Partnering Services; and

(c) any Project Service Provider and its Service Providers and Contractors,

from time to time

"Supply Chain Members"

means any party (except hubco or a Project Service Provider) to a Supply Chain Agreement

"Suspension Notice"

has the meaning given in Clause 23.10.1

"TDP"

means the Territory Delivery Plan as set out at Section 1 (Initial TDP) of Schedule Part 11 (Territory Delivery Plan) and approved by the TPB as amended from time to time pursuant to Section 2 (Updated TDP) of Schedule Part 11 and approved by the TPB

"Template Project Agreement"

means the relevant form of agreement set out at Schedule Part 7 (Template Project Agreements)

"Territory"

means the geographical area as delineated in Schedule Part 8 (The Territory)

"TPA Material Default"

has the meaning given to it in Clause 23.12

"TPA Material Default Notice"

has the meaning given to it in Clause 23.10.3

"TPB"

means the Territory partnering board as defined in Clause 14.1

"Track Record Test"

means, whether the most recent hubco Performance Report shows that the hubco has met the requirements identified as relevant in Section 3 (Performance Measurement) of Schedule Part 3 (Partnering Services)18

"Transfer Date"

means the date on which a Relevant Transfer occurs

"Transfer Event"

means the occurrence of a Relevant Transfer upon expiry or termination of this Agreement

"Transfer Regulations"

means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI No 246)

"Transferring Employee"

means any Transferring Participant Employee or Transferring Non-Participant Employee

"Transferring Non-Participant Employee"

means in relation to any service equivalent to a Partnering Service, any persons employed by any organisation or body other than a Participant (including for the avoidance of doubt, any sub-contractor or agent engaged by the Participants) who is wholly or mainly engaged in the provision of that service as at the Transfer Date and who will become an employee of hubco or a Partnering Subcontractor on the Transfer Datein accordance with the provisions of paragraph 1 of Section 1 (General) of Schedule Part 15 (Transfer of Employment and Pensions)

"Transferring Participant Employee"

means in relation to any service equivalent to a Partnering Service, all those persons employed by any of the Participants under a contract of employment (excluding, to avoid doubt (without limitation), any person engaged by any of the Participants as an independent contractor or persons employed by any sub-contractor engaged by any of the Participants) who are wholly or substantially engaged in the provision of that service as at the Transfer Date19

"Uninsurable Risk"

in respect of a DBFM Project, has the meaning given to it in the relevant Project Agreement

"Unreasonable Conditions"

means any condition, requirement or obligation whether in or proposed to be in a Planning Permission or a Planning Agreement as set out in Schedule Part 13 (Unreasonable Conditions) PROVIDED ALWAYS that for the purposes of this Agreement, none of the following constitute an Unreasonable Condition:

(a) any condition, requirement or obligation which has been volunteered in writing by the parties or has been acknowledged to be acceptable by them in writing prior to its imposition; or

(b) any condition, requirement or obligation which is agreed or deemed or determined pursuant to the provisions of this Agreement not to be an Unreasonable Condition

"Unsuitable Person"

means either:

(a) any person who has a material interest in the production, distribution or sale of tobacco products and/or alcoholic drinks; or

(b) any person whose activities are, in the reasonable opinion of the Participants, incompatible with the provision of Community Services in the Territory; or

(c) any person whose activities, in the reasonable opinion of the Participants, pose or could pose a threat to national security

"VAT"

means value added tax at the rate prevailing at the time of the relevant supply charged in accordance with the provisions of the Value Added Tax Act 1994

"VAT Sum"

has the meaning given to it in Clause 10.12

"Works"

means the design (including the preparation of all Design Data), construction, testing, commissioning and completion of Facilities (including any temporary works) and the installation of any equipment to be performed in accordance with a Project Agreement (as varied or supplemented from time to time in accordance with the provisions of the relevant Project Agreement)

"Works and Facilities Information"

means all materials, documents and data relating to the proposed design or construction of Works, the operation and maintenance of Facilities and other matters relevant thereto supplied or made available to hubco or any of its nominees or any Project Service Provider by or on behalf of any of the Participants from time to time