Annex 4 Terms and Conditions 2019
These Terms and Conditions include the facilitator's obligations for the Facilitation Fund
(1) The Rural Payments Agency of PO Box 69, Reading, RG1 3YD, United Kingdom (“the Authority”)
(2) The person or organisation identified in the Agreement Offer (“the Facilitator”)
A. The Countryside Stewardship Facilitation Fund supports people and organisations that bring farmers, foresters, and other land managers together to improve the local natural environment at a landscape scale (the “Facilitation Fund”). The Facilitation Fund will be delivered in accordance with Article 35 of Regulation (EU) 1305/2013 in order to secure greater cooperation amongst farmers and other land managers to deliver the Countryside Stewardship priorities across a number of holdings.
B. The Facilitation Fund forms part of the wider Rural Development Programme for England 2014-2020 (“RDPE”) which is co-financed by the European Agricultural Fund for Rural Development (“EAFRD”) and UK Exchequer funds. The Rural Payments Agency (“the Authority”) is the accredited paying agency for the RDPE pursuant to Article 65(2)(b) of Regulation (EU) no. 1305/2013 and is the delivery body responsible for managing the Countryside Stewardship Facilitation Fund.
C. The Authority has agreed to pay the Grant to the Facilitator for the purpose of delivering the Services subject to the Facilitation Agreement and relevant EU and UK law.
D. The Facilitation Fund 2019 Agreement (“the Facilitation Agreement”) comprises these standard Terms and Conditions, and the Agreement Offer and Facilitation Plan which are both individual to the Facilitator. To comply with the Facilitation Agreement the parties will also need to refer to a Group Agreement, the Facilitation Fund Manual and related forms as described below.
E. The Department for the Environment, Food and Rural Affairs is the Managing Authority with overall responsibility for the RDPE and may, acting itself or through the Authority exercise any powers or functions under these terms and conditions and the Facilitation Agreement, including enforcing any terms of the Facilitation Agreement against the Facilitator in accordance with clause 28 (Third Party Rights).
1.1 In these Terms and Conditions and the Facilitation Agreement, the following terms shall have the following meanings:
| Definition | Interpretation |
|---|---|
| Agreement Offer | The email issued by the Authority to the Facilitator offering the Facilitation Agreement |
| Application | The application form for the Facilitation Fund and any accompanying documents, as completed and submitted by the Facilitator to the Authority |
| Authority | Has the meaning given to it in paragraph (1) of the Parties to these Terms and Conditions |
| Change Log | The form will be provided by the Authority to the Facilitator after commencement of the Agreement and any amendments thereof as notified by the Authority to the Facilitator |
| Commencement date | The date on which the Facilitation Agreement commences as detailed in the Agreement Offer |
| Data Protection Legislation | (a) the General Data Protection Regulation (EU) 2016/679 (“GDPR”), and any applicable national implementing law as amended from time to time (b) the Data Protection Act 2018 to the extent that it relates to the processing of Personal Data and privacy (c) all applicable law about the processing of Personal Data and privacy, including in each case any law which replaces relevant EU law as a consequence of the UK leaving the European Union. |
| EAFRD | means the European Agricultural Fund for Rural Development |
| Expiry date | The date on which the Facilitation Agreement comes to an end, being 31 December 2022 |
| Facilitator | Has the meaning given in paragraph (2) of the Parties to these Terms and Conditions |
| Facilitation Fund | Has the meaning given to it in paragraph (A) of the Background to these Terms and Conditions |
| Facilitation Agreement | Has the meaning given to it in paragraph (D) of the Background to these Terms and Conditions, and comprises: (a) these Terms and Conditions (b) the Facilitation Plan; and (c) the Agreement Offer |
| Facilitation Plan | The Facilitation Plan issued by the Authority to the Facilitator with the Offer Letter, setting out details of the Services and the Grant |
| GOV.UK | The UK government website at www.gov.uk which contains information about the Facilitation Fund |
| Governing Regulations | Means the EU and domestic legislation governing the Facilitation Agreement and the RDPE as listed below these Terms and Conditions |
| Grant | The sum which specified in the Facilitation Plan which subject to the Facilitation Agreement, is to be made available to the Facilitator for reimbursement of expenditure validly incurred in undertaking the approved Services |
| Grant Claim | A claim submitted by the Facilitator to the Authority for payment of part or all of the Grant, comprising a Grant Claim And Progress Form and any documents and evidence required in support |
| Grant Claim and Progress form | The form will be provided by the Authority to the Facilitator after commencement of the Agreement and any amendments thereof as notified by the Authority to the Facilitator |
| Group | The parties to the Group Agreement, described as such in the Facilitation Fund Application. Each member of the Group is a Group Member |
| Group Agreement | A valid and binding agreement between the members of the Group, signed by all Group Members, to address the Group governance, including but not limited to the operation of the Group, roles of Group Members and dispute resolution procedures, that has been signed by all Group Members and approved by the Authority, and any amendments thereof as notified by the Authority to the Facilitator |
| Intellectual Property Rights | All patents, copyrights and design rights (whether registered or not) and all applications for any of the foregoing and all rights of confidence and know-how however arising for their full term and any renewals and extensions |
| Managing Authority | The Department for Environment, Food and Rural Affairs (DEFRA), which has overall responsibility for the RDPE pursuant to Article 65(2)(a) of Regulation (EU) No 1305/2013 |
| Manual | The guidance on the Countryside Stewardship Facilitation Fund available at www.gov.uk/guidance/facilitation-fund-2019-countryside-stewardship any updates thereof notified in writing by the Rural Payments Agency to the Facilitator |
| Personal Data | Has the meaning given to it in the Data Protection Legislation |
| Services | The services provided by the Facilitator to the Group in the performance of his role as facilitator as more particularly described in the Facilitation Plan |
| Terms and Conditions | These Countryside Stewardship Facilitation Fund 2019 Terms and Conditions which form part of the Facilitation Agreement |
| Working Day | Any day other than a Saturday, a Sunday or a public holiday in England |
1.2 References to clauses are to the clauses of these Terms and Conditions, unless otherwise stated. The headings in these Terms and Conditions are inserted for convenience only and shall not affect their construction.
1.3 A reference to a particular law or regulation is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Any words following the term including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 The Facilitator confirms that:
(a) the declarations made in its application for the Grant remain true and accurate to the best of its knowledge and belief;
(b) it has full capacity and authority to enter into the Facilitation Agreement;
(c) it has read and understood and will comply with the terms and conditions of the Facilitation Agreement, the Group Agreement and the Manual;
(d) it is not aware of any circumstances which would render it ineligible for the Grant or otherwise prevent it from fulfilling its obligations under the Facilitation Agreement;
(e) if there are any changes to the Facilitator’s circumstances which could affect its eligibility or suitability for the Grant or its ability to fulfil its obligations under the Facilitation Agreement, it will notify the Authority in writing without delay;
(f) all information provided by or on behalf of the Facilitator to the Authority in connection with the Facilitation Agreement is and will remain true and accurate;
(g) the Facilitator has disclosed to the Authority all information which would or might reasonably be thought to influence the Authority in making the Grant offer;
(h) it has not received and will not receive any duplicate funding or allowances from other sources in respect of the same obligations it is required to undertake under the Facilitation Agreement. This includes the charging of membership fees;
(i) its obligations under the Facilitation Agreement do not duplicate and will not duplicate any other legal obligations it would otherwise be required to undertake;
(j) its obligations under the Facilitation Agreement do not and will not conflict in whole or in part with any other legal or contractual obligations on the Agreement Holder;
(k) the Facilitator and Services will at all times conform with all relevant domestic and EU legislation in the performance of its obligations under the Facilitation Agreement;
(l) the Services provided to the Group shall correspond with all plans, specifications and particulars set out in the Facilitation Agreement and shall be carried out with all due skill, care, ability and diligence and in accordance with good industry practice.
2.2 The Facilitator confirms that it has obtained and will maintain and comply with any permits, licences, permissions, consents, approvals, certificates and authorisations (whether statutory or otherwise) which are required for the performance of its obligations under the Facilitation Agreement. The Facilitator understands that the Facilitation Agreement does not operate as a Site of Special Scientific Interest (SSSI) consent and that if such consent is required it must apply separately in accordance with any instructions provided by the Authority.
2.3 The Facilitator understands that the giving of any approval, consent or acknowledgement, or the review of any document or course of action by or on behalf of the Authority does not relieve the Facilitator of any of its obligations under the Facilitation Agreement unless expressly permitted in writing by the Authority.
2.4 The Facilitator shall be deemed to be in breach of the conditions of the Facilitation Agreement if it dishonestly, knowingly or recklessly provides false or misleading information or intentionally obstructs or fails to assist the Authority or any person carrying out any public functions or exercising any rights or powers in connection with the Facilitation Agreement.
2.5 The Facilitator understands that it is an offence to knowingly or recklessly provide false or misleading information or intentionally obstruct or fail to assist any person carrying out public functions in connection with the Facilitation Agreement, and that such conduct by the Facilitator may attract criminal penalties.
2.6 The Facilitator shall make its own enquiries as to the accuracy and adequacy of any information on which it relies in connection with the Facilitation Agreement.
3.1 The Facilitator shall:
(a) Provide any information requested by the Authority in relation to the Facilitation Agreement and Group Agreement;
(b) Use the Grant to provide the Services to the Group as set out in the Facilitation Plan and in accordance with the Facilitation Agreement, the Manual and Group Agreement;
(c) Notify the Authority of any material change of circumstance or delay in providing the Services as soon as the Facilitator is aware of the same.
(d) Submit quarterly and annual reports to the Authority in accordance with the Facilitation Agreement and Manual;
(e) Submit quarterly Grant Claims to the Authority in accordance with the Facilitation Agreement and the Manual;
(f) Seek prior written agreement from the Authority for any proposed changes to the Facilitation Agreement or Group Agreement;
(g) Update the Change Log with any changes to the Facilitation Agreement or Group Agreement agreed by the Authority;
(h) Comply with the other provisions of these Terms and Conditions, the Facilitation Agreement as a whole, the Manual and Group Agreement;
(i) Comply with and be subject to all applicable European Union and domestic law, including the requirements of the Governing Regulations; and
(j) Comply with and be subject to all other applicable statute, bye-law, regulations, orders, regulatory policy, guidance or industry code, rule of court or directives or requirements of any regulatory body, delegated or subordinate legislation.
3.2 Any change to the Group or Group Agreement shall be subject to written agreement by the Authority in accordance with the Manual and the Application.
4.1 The Facilitation Agreement shall commence on the Commencement Date and continue in force until the Expiry Date or, if earlier, the date of earlier termination in accordance with clause 19 (Termination).
4.2 For the avoidance of doubt expiry or termination of the agreement shall not affect the parties’ continuing obligations in accordance with clause 20 (Consequences of expiry or termination).
5.1 The Facilitator shall comply with the Manual as a condition of receiving the Grant.
5.2 The Authority reserves the right to update or amend the Guidance from time to time. In such circumstances the Grant Recipient will be notified in writing of any changes.
6.1 The Facilitator shall comply with the Group Agreement as a condition of receiving the Grant.
6.2 The Facilitator shall inform the Authority of any material change of circumstance that could affect the Group Agreement as soon as the Facilitator is aware of the same, including but not limited to the addition or removal of Group Members.
6.3 The Facilitator shall provide any information requested by the Authority in relation to the Group Agreement. If the Facilitator fails to provide the information requested within the time allowed the Authority reserves the right to terminate the Facilitation Agreement.
6.4 The Authority may require changes to the Group Agreement before approving the same. The Facilitator shall be responsible for obtaining the consent of Group Members to any amended Group Agreement.
7.1 Subject to these Terms and Conditions, the Grant shall be used to reimburse expenditure validly incurred by the Facilitator for the delivery of the Services in accordance with the Facilitation Agreement.
7.2 Unless otherwise explicitly permitted in writing by the Authority, the Grant may not be used to reimburse any expenditure incurred prior to the Commencement Date.
7.3 The Facilitator shall make Grant Claims in respect of eligible costs in accordance with and subject to the requirements and limits set out in the Facilitation Agreement and the Manual.
7.4 The Facilitator shall submit Grant Claims to the Authority quarterly in arrears (or such longer period as the Authority agrees in writing), starting from 15 April 2020 in accordance with the Grant Claim and Progress Form Submission in Section 4 of the Facilitation Plan.
7.5 To submit a Grant Claim, the Facilitator must provide both (a) a Grant Claim and Progress Form completed in accordance with the Instructions on the form itself and the Manual, and (b) the required evidence in support. The evidence required in support of a Grant Claim is specified on the Grant Claim and Progress Form and in Annexes 2 and 3 of the Manual.
7.6 A Group Agreement must be in place before any Grant will be released to the Facilitator.
7.7 The Grant will be paid directly to the Facilitator’s nominated bank account via BACS transfer by the Authority, subject to the necessary funds being available when the payment falls due. The Facilitator agrees and accepts that payment of the Grant can only be made to the extent that the funds are available.
7.8 Any failure by the Facilitator to submit a Grant Claim in accordance with the instructions (including the provision of any supporting documents necessary to enable the claim to be processed) may result in payment of the Grant being delayed, reduced or withheld.
7.9 All Grant Claims will be checked and verified before any sum is paid. If there is any discrepancy between the amount claimed by the Facilitator and the amount the Facilitator is entitled to claim, the Grant may be subject to a penalty. In the most severe cases, the Grant Claim may be rejected in its entirety.
7.10 Any undue payments or overpayments received by the Facilitator must be repaid, including those paid as a result of an administrative error.
7.11 The Facilitator shall check any Grant it receives and notify the Authority immediately if it has reason to believe that any error has occurred.
7.12 Payment in full or in part of the Grant claimed under this clause 7 (Payment of Grant) shall be without prejudice to any claims or rights of the Authority or the Group against the Facilitator in respect of the provision of the Services.
7.13 If the Facilitator breaches the terms of the Facilitation Agreement or there is a change of circumstances affecting the Facilitator’s eligibility to receive the Grant, the Authority shall be entitled to suspend Grant payments, recover any Grant paid from the Facilitator, impose penalties and/or charge interest.
7.14 The amount of the Grant shall not be increased in the event of any overspend by the Agreement Holder in the delivery of its obligations under the Agreement, unless where agreed through the variation process at clause 21 (Variation).
7.15 Any liabilities arising at the end of the Services including any redundancy liabilities for staff employed or engaged by the Facilitator to deliver the Services must be managed and paid for by the Facilitator. There will be no additional funding available for this purpose.
7.16 The Grant offer has been made on the basis that the costs presented to the Authority take account of all VAT liabilities. Where the project costs increase after the date the parties have entered into this Agreement because an error has been made as to the amount of VAT payable and not recoverable by the Facilitator, the Authority shall be under no obligation to increase the Grant to meet any VAT liability of the Facilitator.
8.1 If the Facilitator breaches the terms of the Facilitation Agreement or if there is a change in circumstances affecting its eligibility to receive the Grant, the Authority reserves the right to withhold or require repayment of the Grant. In addition, where the Facilitator has breached the terms of the Facilitation Agreement, penalties may be applied.
8.2 If the Facilitator receives any overpayment or any payment to which it is not entitled (including in the event of an administrative error), the undue amount must be repaid. It is the Facilitator’s responsibility to check all payments it receives from the Authority and notify the Authority immediately if it has any reason to believe that an error has occurred.
8.3 If any sum becomes repayable under the Facilitation Agreement, it shall be treated as a debt owing by the Facilitator to the Authority until such time as the outstanding amount is repaid. A recovery order will be issued to the Facilitator specifying the amount to be repaid and the date by which repayment must be made.
8.4 If the Facilitator fails to make a repayment within 60 days of the date of the relevant recovery order, the Authority reserves the right to charge interest on the outstanding debt at a daily rate equivalent to the Bank of England base rate plus 1%.
8.5 Where any sum is repayable under the Facilitation Agreement, the Authority reserves the right to withhold future payments due to the Facilitator under this Agreement, any other RDPE grant agreement, or any other sum due to the Facilitator under the Common Agricultural Policy, pending repayment by the Facilitator of the outstanding amount.
8.6 Where any sum is repayable under the Facilitation Agreement and the Facilitator has failed to repay the outstanding amount within the period specified in the recovery order, the Authority reserves the right to deduct the outstanding debt from future payments due to the Facilitator under this Facilitation Agreement, any other RDPE grant agreement, or any other sum due to the Facilitator under the Common Agricultural Policy.
9.1 The Facilitator shall monitor the delivery and success of the Services to ensure that the aims and objectives of the Facilitation Fund are being met and that the Facilitation Agreement is being adhered to.
9.2 The Facilitator shall notify the Authority as soon as possible of any material change of circumstance, including any delay in providing the Services, and any actual or anticipated non-compliance with the Facilitation Plan or Facilitation Agreement and reasons for the same.
9.3 The Facilitator shall provide the Authority with quarterly and annual reports in arrears (or such longer period as the Authority agrees in writing), starting from 15 April 2020 in accordance with the Submission Schedule in Section 4 of the Facilitation Plan, and any other reports required in their Facilitation Plan.
9.4 Quarterly reports shall be provided on the Grant Claim and Progress Form completed in accordance with the instructions on the form itself, and accompanied by the evidence specified on the form and in Annexes 2 and 3 of the Manual. Annual report shall be provided in accordance with the format requested by the Authority.
9.5 The Facilitator shall on request provide the Authority with such further information, explanations and documents as the Authority may reasonably require in order for it to establish that the Grant has been used properly in accordance with the Facilitation Agreement.
9.6 If requested, the Facilitator shall provide the Authority with a final report at the Expiry Date which shall confirm whether the obligations under the Facilitation Plan have been successfully and properly completed and explain the outcomes achieved.
9.7 If the Facilitator fails to provide the Authority with a report, information, explanation or documents in accordance with the Facilitation Agreement and Manual, the Authority may withhold payment of the Grant and or apply a penalty. In the case of severe delays, the Authority reserves the right to terminate the Facilitation Agreement.
The Facilitator consents to the Authority, the European Commission or any other person authorised by the Authority or the European Commission carrying out visits to or inspections of the Facilitator’s premises or the provision of the Services. Such visits and inspections may be with or without notice. The Facilitator agrees to cooperate and assist with any person authorised to visit or carry out an inspection, and shall permit access to any premises, equipment or documents as are reasonably required for the purposes of the visit or inspection.
11.1 The Facilitator shall keep separate, accurate and up-to-date accounts and records of the receipt of and expenditure relating to the Grant and evidence of its compliance with its obligations under the Facilitation Agreement, which shall comply with any applicable standards and requirements set out in the Facilitation Agreement, the Manual and in any separate instructions issued to the Facilitator.
11.2 The Facilitator shall keep all invoices, receipts, and accounts and any other relevant documents relating to the expenditure of the Grant for a period of at least seven years following the Expiry Date. The Authority shall have the right to review the Facilitator’s accounts and records relating to the Grant and shall have the right to take copies of such accounts and records.
11.3 The Facilitator shall comply with and facilitate the Authority’s compliance with all statutory requirements as regards accounts, audit or examination of accounts, annual reports and annual returns applicable to itself and the Authority.
11.4 In addition to its obligations to provide information to the Authority, the Facilitator shall, upon request, provide any of the information referred to in clauses 9 (Monitoring and reporting) and 11 (Maintenance of Accounts and Records) to any other UK or EU public authority or their authorised representatives or auditors upon request.
The Facilitator shall, upon request, supply any documents, information, data, reports or written or verbal explanations which may be required by any UK or EU public authority (or their authorised representatives or auditors) in connection with the Facilitation Agreement or the Scheme.
13.1 The Facilitator understands and agrees that as a condition of receiving the Grant funding it may be required to participate in evaluation processes, which may take place during the Facilitation Agreement or after its expiry or termination.
13.2 The Facilitator understands that its contact details may be disclosed to third parties for evaluation purposes and agrees to assist and cooperate with any person authorised by any UK or EU public authority to carry out such an evaluation.
14.1 The Facilitator shall comply with all instructions and guidance from the Authority in relation to acknowledgement and publicity of the Grant, including using any materials or templates which are provided by the Authority for this purpose. Such acknowledgement and publicity may include, where appropriate, a statement on any website operated by the Facilitator for business purposes, and/or a poster, plaque or billboard displayed on the Facilitator’s land or premises. Further details of the publicity requirements applicable to the Facilitation Fund are set out in the Manual.
14.2 In using the Authority’s name and logo (and the name and logo of the European Union or any other European Union institution or UK government body), the Facilitator shall comply with all reasonable branding guidelines issued by the Authority from time to time.
14.3 The Facilitator agrees to participate in and co-operate with promotional activities relating to the Facilitation Fund if required to do so by the Authority.
14.4 The Authority may acknowledge the Facilitator’s involvement in the Facilitation Fund as appropriate without prior notice.
14.5 The Facilitator shall comply with all reasonable requests from the Authority to facilitate visits, provide reports, statistics, photographs and case studies that will assist the Authority in its promotional and publicity activities relating to RDPE.
15.1 The Authority and the Facilitator agree that all rights, title and interest in or to any information, data, reports, documents, procedures, forecasts, technology, know-how and any other Intellectual Property Rights whatsoever owned by or licensed to either the Authority or the Facilitator before the Commencement Date or developed by either party during the period of the Facilitation Agreement, shall remain the property of that party.
15.2 Where the Authority has allowed the Facilitator to use any of its Intellectual Property Rights in connection with the Facilitation Agreement (including without limitation its name and logo), the Facilitator shall, on termination or expiry of the Facilitation Agreement, cease to use such Intellectual Property Rights immediately (subject to any ongoing requirement to use Intellectual Property Rights in compliance with the publicity requirements in clause 14 (Acknowledgement and Publicity).
15.3 The Authority shall have a perpetual, non-exclusive, royalty-free, sub-licensable licence to use any Intellectual Property Rights created by the Facilitator in connection with the Facilitation Agreement.
16.1 The parties shall comply at all times with their respective obligations under Data Protection Legislation.
16.2 For the purposes of the Facilitation Agreement, the terms Personal Data, Processor, Controller, Joint Controller and Data Subjects have the meaning given to them in the GDPR.
16.3 The Grant Recipient may provide Personal Data relating to the Facilitation Agreement to the Authority. The Managing Authority is the Controller of any Personal Data provided to the Authority by the Facilitator or collected by the Authority during the course of the Facilitation Agreement.
16.4 Prior to providing any Personal Data to the Authority the Grant Recipient will provide the Data Subjects with the fair processing information contained in the privacy notice published by the Authority on GOV.UK.
16.5 The Authority and/or Managing Authority may use any information or data provided to the Authority by the Facilitator or collected by the Authority during the course of the Facilitation Agreement for the purpose of the management, control, audit, monitoring and evaluation of the Services and the Facilitation Agreement, and may share this with other government departments and agencies and European Union institutions and bodies for the purposes of monitoring and administering the Common Agricultural Policy (CAP), as well as for statistical purposes, in accordance with Article 117 of EU Regulation No 1306/2013.
16.6 For further information on how the Authority handles personal data read the Rural Payments Agency Personal Information Charter.
16.7 To the extent that the Facilitator and the Authority share any Personal Data for the purposes of this Grant, the parties accept that they are each a separate independent Controller in respect of such Personal Data. Each party:
(i) shall comply with applicable Data Protection Legislation in respect of its processing of such Personal Data;
(ii) shall be individually and separately responsible for its own compliance;
(iii) does not and shall not process any Personal Data as Joint Controllers.
16.8 Each party shall, with respect to its processing of Personal Data as independent Controller, implement and maintain appropriate technical and organisational measures to ensure a level of security appropriate to that risk, and the measures shall, at a minimum, comply with the requirements of the Data Protection Legislation, including Article 32 of the General Data Protection Regulation (EU) 2016/679.
16.9 The Facilitator consents to information and data about the Facilitation Agreement (including but not limited to the Services and details of the Facilitator) being published on public websites.
16.10 The Facilitator acknowledges that the Authority and the Managing Authority are subject to the requirements of the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIRs).
16.11 The Facilitator shall provide all necessary assistance and cooperation which is reasonably requested by either the Managing Authority or the Authority for the purposes of complying with their obligations under FOIA and EIRs. If either of them requires the Facilitator to supply information pursuant to a FOIA/EIRs request, the Facilitator shall supply all such information which is within its possession or control within 5 Working Days (or such other period as either may reasonably require).
16.12 If the Facilitator receives a FOIA/EIR request from a member of the public, it shall not respond to the request but shall forward the request to either the Managing Authority or the Authority within 2 Working Days of receipt.
16.13 The Managing Authority and Authority shall determine in their absolute discretion whether any information is exempt from disclosure in accordance with the provisions of FOIA and/or the EIRs.
16.14 The Facilitator consents to information about the Grant, the Services or the Facilitation Agreement (including the Facilitator’s contact details) being disclosed to third parties authorised by the Authority or the Managing Authority or the European Commission for monitoring, inspection or evaluation purposes.
17.1 Neither party excludes or limits its liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation, or any other liability which cannot be limited or excluded by law.
17.2 The Authority accepts no liability for any consequences, whether direct or indirect, that may come about from the Facilitator’s provision of the Services, the provision of the Grant or from the Authority exercising its rights under the Agreement.
17.3 The Facilitator shall indemnify and hold harmless the Authority and any persons acting on the Authority’s behalf against all claims, demands, actions, costs, expenses, losses, damages and all other liabilities arising as a result of the actions and/or omissions of the Facilitator in relation to the Facilitation Agreement or its obligations to third parties.
17.4 Subject to clauses 17.1 and 17.2, the Authority’s total aggregate liability in connection with the Facilitation Agreement shall not exceed the amount of the Grant.
17.5 The Facilitator acknowledges and accepts that if it suffers any losses which prevent it from fulfilling its obligations under the Facilitation Agreement, the Authority may require the Grant to be repaid or the losses to be made good at the Facilitator’s own expense, regardless of whether the Facilitator is insured against such losses.
18.1 If the Facilitator is prevented from complying with its obligations under the Agreement due to force majeure or exceptional circumstances, the Authority must be notified in writing within 15 Working Days from the date on which the Facilitator (or any person authorised to act on the Facilitator’s behalf) is in a position to do so.
18.2 Force majeure or exceptional circumstances shall have the meaning they have in European Union agricultural law including Regulation (EU) 1306/2013, and may include for example the death or long-term professional incapacity of the Facilitator or Group Members;
18.3 The Authority will consider the facts on a case-by-case basis in deciding whether or not the Agreement Holder is relieved of all or part of its obligations under the Agreement and whether all or part of the Grant should be suspended or repaid.
19.1 The Authority reserves the right to terminate the Facilitation Agreement and payment of the Grant for the unexpired period of the Facilitation Agreement on written notice to the Facilitator with immediate effect and without compensation if:
(a) the Facilitator has breached the terms of the Facilitation Agreement and (if such breach is capable of remedy) has failed to remedy such breach within 28 days of being required to do so in writing by the Authority;
(b) there is a change in circumstances affecting the Facilitator’s eligibility to receive the Grant and or its ability to deliver the Services in accordance with the Facilitation Agreement (whether or not the Authority has taken steps to recover the Grant;
(c) the Facilitator has failed to repay any sum which has become recoverable by the Authority under the Agreement;
(d) the Authority has made a determination under regulation 14 of the Common Agricultural Policy (Control and Enforcement, Cross-Compliance, Scrutiny of Transactions and Appeals) Regulations 2014.
19.2 If the Authority terminates the Facilitation Agreement under clause 19.1 above, it reserves the right to prohibit the Facilitator from entering into a new agreement under the Facilitation Fund and any successor scheme(s) for up to two years from the date of termination.
19.3 In addition to its right to terminate under clause 19.1 above, the Authority may terminate the Facilitation Agreement and any future Grant payments on giving the Facilitator six months’ written notice at any time. Provided that the Facilitator is not in breach of the Facilitation Agreement, Grant payments already paid will not be recoverable.
19.4 The Facilitator may terminate the Facilitation Agreement during the first three months after the Commencement Date without notice and without penalty. Thereafter the Facilitator may terminate the Facilitation Agreement by giving a minimum of six months’ written notice to the Authority. In the latter case, the Facilitator understands that it may be required to repay all or part of the Grant and that its obligations under the Facilitation Agreement shall not cease until such repayment has been made.
20.1 Expiry or termination of the Facilitation Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of expiry or termination which existed at or before the date of expiry or termination.
20.2 Expiry or termination of the Facilitation Agreement shall not affect the continuing rights and obligations of the parties under clauses 8 (Repayment), 12 (Access to Documents and Information), 10 (Site Visits), 11 (Maintenance of Accounts and Records), 13 (Evaluation), 14 (Acknowledgement and Publicity), 15 (Intellectual Property Rights), 16 (Data Protection and Information), 17 (Insurance and Limitation of Liability), 20 (Consequences of Expiry or Termination), 22 (Severability), 23 (Waiver), 24 (Notices), 25 (Dispute Resolution), 27 (Joint and Several Liability), 28 (Third Party Rights), 29 (Governing Law) or any other provision in the Facilitation Agreement or Manual which is expressly stated to survive expiry or termination of the Facilitation Agreement or which is required to give effect to such termination or expiry or the consequences of such termination or expiry.
21.1 The Authority reserves the right to vary the Facilitation Agreement. Any variation will be effected in writing and the Facilitator shall be notified in advance. The Authority shall endeavour to give such notice as is reasonable and proportionate, having regard to the nature of the variation and its consequences for the Facilitator.
21.2 Any amendment or variation proposed by the Facilitator to the provisions of the Facilitation Agreement will not be effective unless approved in writing by the Authority.
21.3 The Facilitator will keep a record of any amendments or variations it proposes which the Authority approves in the Change Log.
If any term, condition or provision of the Facilitation Agreement is held to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will not affect the validity, legality and enforceability of the other provisions of any other documents referred to in the Facilitation Agreement.
No failure or delay by either party to exercise any right or remedy under the Facilitation Agreement shall be construed as a waiver of any other right or remedy.
24.1 All notices and other communications in relation to the Facilitation Agreement shall be in writing and shall be deemed to have been duly given if personally delivered, emailed, or mailed (first class postage prepaid) using the contact details set out in the Offer Letter (or any updated address which is subsequently notified by one party to the other). It is the Facilitator’s responsibility to notify the Authority of any change to its contact details.
24.2 If personally delivered or if emailed all such notices shall be deemed to have been given when received (except that if received on a non-Working Day or after 5.00 pm on any Working Day they shall be deemed received on the next Working Day) and if mailed all such notices shall be deemed to have been given and received on the second Working Day following such mailing.
24.3 General communications concerning the Facilitation Fund and or the scheme which are not personal to the Facilitator may be published online.
Any dispute arising between the parties or appeal made by the Facilitator shall be resolved according to the Rural Payments Agency’s complaints procedure
The Facilitation Agreement shall not create any partnership or joint venture between the Authority and the Facilitator, nor any relationship of principal and agent, nor authorise any party to make or enter into any commitments for or on behalf of the other party.
Where the Facilitator is neither a company nor an incorporated entity with a distinct legal personality of its own, the individuals who enter into this Facilitation Agreement on behalf of the Facilitator shall be jointly and severally liable for the Facilitator’s obligations and liabilities arising under the Facilitation Agreement.
28.1 Subject to clause 28.2 below, the Facilitation Agreement does not and is not intended to confer any benefit on any person who is not a party to the Agreement.
28.2 The terms of the Facilitation Agreement may be enforced and recovery of any Grant may be sought by the Managing Authority, which shall be entitled to receive the benefit of the Facilitation Agreement as if it were the Authority.
Subject to clause 25 (Dispute Resolution, complaints and appeals), the Facilitation Agreement shall be governed by and construed in accordance with the law of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts.
30.1 A reference to a public organisation includes a reference to any successor to such public organisation.
30.2 The Facilitator acknowledges that the Grant is non-transferable and the Facilitator may not, and agrees not to attempt or purport to, assign or transfer the Grant, the Facilitation Agreement or any of its rights under the Facilitation Agreement.
30.3 The Facilitator shall not assign, sub-contract or in any other way dispose of the Services or any part of them without the prior written consent of the Authority or in accordance with the Manual. Sub-contracting any part of the Services shall not relieve the Facilitator of any obligation or duty attributable to the Facilitator. The Facilitator shall be responsible for the acts and omissions of its sub-contractors as though they are its own.
Governing Regulations
| Subject | Parliament and Council | Commission Delegated | Commission Implementing |
|---|---|---|---|
| Common Provisions | 1303/2013 | 480/2014 | 184/2014 215/2014 821/2014 |
| Rural Development | 1305/2013 | 807/2014 | 808/2014 |
| Financing, Management & Monitoring | 1306/2013 | 640/2014 906/2014 907/2014 | 809/2014 908/2014 |
| Transitional Provisions | 1310/2013 | N/A | N/A |
Regulation (EC) No 1848/2006 (as amended) concerning reporting of irregularities is also applicable.
The Common Agricultural Policy (Control and Enforcement, Cross-Compliance, Scrutiny of Transactions and Appeals) Regulations 2014
Key and Ancillary Controls Concerning Rural Development Measures 2014-2020, Applicable in Relation to Conformity Clearance Procedures Launched as from 1.1.2015