Common use of Acceptance and compliance Clause in Contracts

Acceptance and compliance. Neither failure to comply nor full compliance with the insurance provisions of this Agreement shall relieve the LEP of its liabilities and obligations under this Agreement. The LEP shall take all reasonable steps to mitigate the effects of any risks or claims covered by this clause (including without limitation minimising the amount of any costs and expenses which might result). The LEP shall give the Local Authority twenty (20) Business Days' prior written notice of the cancellation, non renewal or amendment to any of the insurances (whether held by it on a project specific basis or by its supply chain or the PSP under a group policy) set out in Schedule 7 (Required Insurances). [Professional indemnity insurance33 In addition to the insurance referred to in clause 10.1(a) if the LEP is due to carry out activities that should have the benefit of professional indemnity insurance, the LEP undertakes to procure and maintain in force professional indemnity insurance (PI Insurance) provided that such insurance is generally available in the market to members of similar businesses at commercially reasonable rates and provided further that payment of any increased or additional premiums required by insurers by reason of the LEP's own claims record or other acts, omissions, matters or things peculiar to the LEP will be deemed to be within the reasonable rates and, where such insurance is effected, to: provide evidence satisfactory to the Local Authority (as and when reasonably required by the Local Authority) of the PI Insurance being in full force and effect from the date on which the PI Insurance shall have been procured pursuant to this clause 10.6 until the date six (6) years from and including the completion of all the Works (such evidence to include details of the cover) including confirmation of territorial limits, levels of excess, insurers, policy number and indemnity limit (which shall be a minimum of [five million pounds (£5,000,000)]34 either each and every loss or in the aggregate; provide the Local Authority with notice of: any cancellation of the PI Insurance not less than thirty (30) days prior to the relevant cancellation date; and any adverse material changes to, or suspension of, cover relevant to the Project not less than thirty (30) days prior to the relevant change or suspension; and inform the Local Authority as soon as reasonably practicable of any claim under the PI Insurance in respect of the Project in excess of £1m, provide such information to the Local Authority as the Local Authority may reasonably require in relation to such claim and provide notice of any potential breach of the aggregate limit of the policy.] The LEP warrants to the Local Authority, as at the date of this Agreement, on the terms set out in Schedule 6 (Corporate Warranties by the LEP). Each of the LEP’s warranties shall be separate and independent and, save as expressly provided to the contrary, shall not be limited by reference to any of them or by any other provisions of this Agreement. The LEP hereby acknowledges and agrees that compliance by it with the LEP’s warranties (or any of them) shall not itself constitute performance of any of its other obligations under this Agreement. Subject to the provisions of Schedule 13 (TUPE, Employees and Pensions) the LEP shall not in any way be relieved from any obligation under this Agreement nor shall it be entitled to claim against the Local Authority on grounds that any information, whether obtained from the Local Authority or otherwise (including information made available by the Local Authority) is incorrect or insufficient and it shall make its own enquiries as to the accuracy and adequacy of that information; neither the Local Authority nor any of its agents, servants or advisers shall be liable to the LEP (whether in contract, tort or otherwise and whether or not arising out of any negligence on the part of the Local Authority or any of its agents, servants or advisers) in respect of any inadequacy of any kind whatsoever in the Information; the Local Authority gives no warranty or undertaking that the Information represents all of the information in its possession or power relevant or material to the Project. Neither the Local Authority nor any of its agents, servants or advisers shall be liable to the LEP in respect of any failure to disclose or make available to the LEP (whether before or after the execution of any of the Project Documents) any information, documents or data or to keep the Information up to date or to inform the LEP (whether before or after the execution of the Project Documents) of any inaccuracy, error, omission, unfitness for purpose, defects or inadequacy in the Information; the LEP acknowledges and confirms that: it has conducted its own analysis and review of the Information and, before execution of the Project Documents, has satisfied or will satisfy itself as to the accuracy, completeness and fitness for purpose of all such Information upon which it places reliance or upon which it should have placed reliance; and it shall not be entitled to make any claim against the Local Authority or any of its agents, servants or advisers, whether in damages or for extensions of time or additional payments under the Project Documents, on the grounds of any misunderstanding or misapprehension in respect of the Information or on the grounds that incorrect or insufficient information relating thereto or to any Site was given to it by any person whether or not in the employment of the Local Authority, nor shall it be relieved from any risks or obligations imposed on or undertaken by it under the Project Documents on any such ground.

Acceptance and compliance. The supply to the Authority of any draft insurance policy or certificate of insurance or other evidence of compliance with this Clause 53 (Insurance) shall not imply acceptance by the Authority (or the Authority's Representative) that: the extent of insurance cover is sufficient and its terms are satisfactory; or in respect of any risks not insured against, that the same were Uninsurable. Neither failure to comply nor full compliance with the insurance provisions of this Agreement shall relieve the LEP Project Co of its liabilities and obligations under this Agreement. The LEP If a risk usually covered by [contractors’ ‘all risks’ insurance, property damage insurance, third party liability insurance, delay in start up and business interruption insurance (but not loss of profits) or statutory insurances] in each case required under this Agreement becomes Uninsurable then: Project Co shall take all reasonable steps to mitigate notify the effects Authority of any risks risk becoming Uninsurable within five (5) Business Days of becoming aware of the same and in any event at least five (5) Business Days before expiry or claims covered cancellation of any existing insurance in respect of that risk; and if both parties agree, or it is determined in accordance with the Dispute Resolution Procedure that the risk is Uninsurable and that: the risk being Uninsurable is not caused by the actions of Project Co or any sub-contractor of Project Co (of any tier); and Project Co has demonstrated to the Authority that Project Co and a prudent board of directors of a company operating the same or substantially similar businesses in the United Kingdom to that operated by Project Co would in similar circumstances (in the absence of the type of relief envisaged by this clause Clause) be acting reasonably and in the best interests of the company if they resolved to cease to operate such businesses as a result of that risk becoming Uninsurable, taking into account inter alia (and without limitation) the likelihood of the Uninsurable risk occurring (if it has not already occurred), the financial consequences for such company if such Uninsurable risk did occur (or has occurred) and other mitigants against such consequences which may be available to such company the parties shall meet to discuss the means by which the risk should be managed or shared (including without limitation minimising considering the issue of self–insurance by either party). If the requirements of Clause 53.14.1 are satisfied, but the parties cannot agree as to how to manage or share the risk, then: in respect of such third party liability insurance only the Authority shall (at the Authority’s option) either pay to Project Co an amount equal to the amount calculated in accordance with Section 3 (Consequences of Termination for Force Majeure) of Schedule Part 17 (Consequences of Termination for Force Majeure) and this Agreement will terminate, or elect to allow this Agreement to continue and paragraph (b) below shall thereafter apply in respect of such risk; and in respect of such [contractors’ ‘all risks’ insurance, property damage insurance, third party liability insurance (if the Authority elects to allow this Agreement to continue in accordance with Clause 53.14.2(a)), delay in start up and business interruption insurance (but not loss of profits) or statutory insurances] this Agreement shall continue and on the occurrence of the risk (but only for as long as such risk remains Uninsurable) the Authority shall (at the Authority’s option) either pay to Project Co an amount equal to insurance proceeds that would have been payable had the relevant insurance continued to be available and this Agreement will continue, or an amount equal to the amount calculated in accordance with Section 3 (Consequences of Termination for Force Majeure) of Schedule Part 17 (Consequences of Termination for Force Majeure) plus (in relation to third party liability insurance only) the amount of any costs insurance proceeds that would have been payable whereupon this Agreement will terminate; and expenses where pursuant to Clauses 53.14, 53.14.2(a) and/or (b) this Agreement continues then the Annual Service Payment shall be reduced in each year for which might resultthe relevant insurance is not maintained by an amount equal to the premium paid (or which would have been paid) by Project Co in respect of the relevant risk in the year prior to it becoming Uninsurable (index linked from the date that the risk becomes Uninsurable). The LEP Where the risk is Uninsurable for part of a year only the reduction in the Annual Service Payment shall give be pro rated to the Local number of months for which the risk is Uninsurable; where pursuant to paragraphs 53.14.2(a) and/or (b) this Agreement continues Project Co shall approach the insurance market at least every four months to establish whether the risk remains Uninsurable. As soon as Project Co is aware that the risk is no longer Uninsurable, Project Co shall take out and maintain or procure the taking out and maintenance of insurance (to be incepted as soon as is reasonably practicable) for such risk in accordance with this Agreement; in respect of any period between the Authority twenty receiving notification in accordance with Clause 53.14.1(a) that a TPL Risk has become Uninsurable and the Authority’s notification to the Project Co in accordance with Clause 53.14.2(a) in respect of such risk then, provided it is ultimately agreed or determined that the requirements of Clause 53.14.1(b) are satisfied in respect of the Uninsurable TPL Risk and subject to Clause 53.14.2(f) below, Clause 53.14.2(b) shall apply in respect of occurrences of the Uninsurable TPL Risk during such period unless the parties otherwise agree how to manage the risk during this period; and Clause 53.14.2(e) shall only apply provided the Project Co does not unreasonably materially delay (a) agreement and/or determination in accordance with the Dispute Resolution Procedure as to whether the requirements of Clause 53.14.1(b) are satisfied in respect of the Uninsurable TPL Risk and/or (b) meeting with the Authority to discuss the means by which the risk should be managed. Where this Clause 53.14.2 applies and this Agreement continues, Project Co shall, subject to Clause 53.14.2(d), be relieved of its obligations to maintain insurance in respect of the relevant Uninsurable Risk. If, pursuant to Clause 53.14.2(b), the Authority elects to make payment of compensation to Project Co (such that this Agreement will terminate)(the “Relevant Payment”), Project Co shall have the option (exercisable in writing within (20) Business Days' prior written notice Days of the cancellationdate of such election by the Authority (the “Option Period”)) to pay to the Authority on or before the end of the Option Period, non an amount equal to the insurance proceeds that would have been payable had the relevant risk not become Uninsurable, in which case this Agreement will continue (and the Relevant Payment will not be made by the Authority), and Project Co’s payment shall be applied for the same purpose and in the same manner as insurance proceeds would have been applied had the relevant risk not become Uninsurable. Unavailability of terms If, upon the renewal or amendment to of any of the insurances (whether held by it on a project specific basis or by its supply chain or Insurances: any Insurance Term is not available to Project Co in the PSP under a group policy) set out in Schedule 7 (Required Insurances). [Professional indemnity insurance33 In addition to worldwide insurance market with reputable insurers of good standing; and/or the insurance referred to premium payable for Insurance incorporating such Insurance Term is such that the Insurance Term is not generally being incorporated in clause 10.1(a) if the LEP is due to carry out activities that should have the benefit of professional indemnity insurance, the LEP undertakes to procure and maintain in force professional indemnity insurance (PI Insurance) provided that such insurance is generally available procured in the worldwide insurance market with reputable insurers of good standing by contractors in the United Kingdom, If it is agreed or determined that Clause 53.15.1 applies then the Authority shall waive Project Co’s obligations in Clauses 53.1 to members 53.3 and/or Schedule Part 15 (Insurance Requirements) in respect of similar businesses at commercially reasonable rates that particular Insurance Term and provided further that payment Project Co shall not be considered in breach of any increased or additional premiums required by insurers by reason its obligations regarding the maintenance of the LEP's own claims record or other acts, omissions, matters or things peculiar to the LEP will be deemed to be within the reasonable rates and, where such insurance is effected, to: provide evidence satisfactory to the Local Authority (as and when reasonably required by the Local Authority) of the PI Insurance being in full force and effect from the date on which the PI Insurance shall have been procured pursuant to this clause 10.6 until the date six (6) years from and including the completion of all the Works (such evidence to include details Agreement as a result of the cover) including confirmation failure to maintain insurance incorporating such Insurance Term for so long as the relevant circumstances described in Clause 53.15.1 continue to apply to such Insurance Term. To the extent that the parties agree (acting reasonably), or it is determined pursuant to the Dispute Resolution Procedure, that an alternative or replacement term and /or condition of territorial limits, levels of excess, insurers, policy number and indemnity limit (which shall be a minimum of [five million pounds (£5,000,000)]34 either each and every loss or insurance is available to Project Co in the aggregate; provide the Local Authority worldwide insurance market with notice of: any cancellation reputable insurers of the PI Insurance not less than thirty (30) days prior to good standing which if included in the relevant cancellation date; and any adverse material changes to, insurance policy would fully or suspension of, cover relevant partially address Project Co’s inability to maintain or procure the Project not less than thirty (30) days prior to maintenance of insurance with the relevant change Insurance Term, at a cost which contractors in the UK are (at such time) generally prepared to pay, Project Co shall maintain or suspension; and inform procure the Local Authority as soon as reasonably practicable maintenance of insurance including such alternative or replacement term and/or condition. Notwithstanding any claim under the PI Insurance in respect of the Project in excess of £1m, provide such information to the Local Authority as the Local Authority may reasonably require in relation to such claim and provide notice of any potential breach of the aggregate limit of the policy.] The LEP warrants to the Local Authority, as at the date other provision of this Agreement, on the terms costs of such insurance shall be subject to the premium costs sharing mechanism set out in at Section 4 (Insurance Premium Risk Sharing Schedule) of Schedule 6 Part 15 (Corporate Warranties by the LEPInsurance Requirements). Each of [Where the LEP’s warranties Authority has exercised the waiver pursuant to Clause 53.15.2, it shall be separate and independent and, save as expressly provided to the contrary, shall not be limited by reference to any of them or by any other provisions of this Agreement. The LEP hereby acknowledges and agrees that compliance by it with the LEP’s warranties (or any of them) shall not itself constitute performance of any of its other obligations under this Agreement. Subject to the provisions of Schedule 13 (TUPE, Employees and Pensions) the LEP shall not in any way be relieved from any obligation under this Agreement nor shall it be entitled to claim against the Local Authority on grounds that any information, whether obtained deduct from the Local Authority or otherwise (including information made available by Annual Service Payment the Local Authority) is incorrect or insufficient and it shall make its own enquiries as “Adjusted Amount”, such amount being an amount equal to the accuracy and adequacy amount paid for the particular Insurance Term in the preceding year (using a reasonable estimate of that information; neither such amount where a precise figure is not available) less any annual amount paid or payable by Project Co to maintain and/or procure the Local Authority nor maintenance of any of its agents, servants or advisers shall be liable to the LEP (whether in contract, tort full or otherwise and whether partial) alternative or not arising out of any negligence on the part of the Local Authority or any of its agents, servants or advisers) replacement insurance in respect of any inadequacy of any kind whatsoever in the Information; the Local Authority gives no warranty or undertaking that the Information represents all of the information in its possession or power relevant or material such Insurance Term pursuant to the Project. Neither the Local Authority nor any of its agents, servants or advisers shall be liable to the LEP in respect of any failure to disclose or make available to the LEP (whether before or after the execution of any of the Project Documents) any information, documents or data or to keep the Information up to date or to inform the LEP (whether before or after the execution of the Project Documents) of any inaccuracy, error, omission, unfitness for purpose, defects or inadequacy in the Information; the LEP acknowledges and confirms that: it has conducted its own analysis and review of the Information and, before execution of the Project Documents, has satisfied or will satisfy itself as to the accuracy, completeness and fitness for purpose of all such Information upon which it places reliance or upon which it should have placed reliance; and it shall not be entitled to make any claim against the Local Authority or any of its agents, servants or advisers, whether in damages or for extensions of time or additional payments under the Project Documents, on the grounds of any misunderstanding or misapprehension in respect of the Information or on the grounds that incorrect or insufficient information relating thereto or to any Site was given to it by any person whether or not in the employment of the Local Authority, nor shall it be relieved from any risks or obligations imposed on or undertaken by it under the Project Documents on any such groundClause 53.15.3.]

Acceptance and compliance. The supply to the Authority of any draft insurance policy or certificate of insurance or other evidence of compliance with this Clause 53 (Insurance) shall not imply acceptance by the Authority (or the Authority's Representative) that: the extent of insurance cover is sufficient and its terms are satisfactory; or in respect of any risks not insured against, that the same were Uninsurable. Neither failure to comply nor full compliance with the insurance provisions of this Agreement shall relieve the LEP DBFM Co of its liabilities and obligations under this Agreement. The LEP If a risk usually covered by [contractors’ ‘all risks’ insurance, property damage insurance, third party liability insurance, delay in start up and business interruption insurance (but not loss of profits) or statutory insurances] in each case required under this Agreement becomes Uninsurable then: DBFM Co shall take all reasonable steps to mitigate notify the effects Authority of any risks risk becoming Uninsurable within five (5) Business Days of becoming aware of the same and in any event at least five (5) Business Days before expiry or claims covered cancellation of any existing insurance in respect of that risk; and if both parties agree, or it is determined in accordance with the Dispute Resolution Procedure that the risk is Uninsurable and that: the risk being Uninsurable is not caused by the actions of DBFM Co or any sub-contractor of DBFM Co (of any tier); and DBFM Co has demonstrated to the Authority that DBFM Co and a prudent board of directors of a company operating the same or substantially similar businesses in the United Kingdom to that operated by DBFM Co would in similar circumstances (in the absence of the type of relief envisaged by this clause Clause) be acting reasonably and in the best interests of the company if they resolved to cease to operate such businesses as a result of that risk becoming Uninsurable, taking into account inter alia (and without limitation) the likelihood of the Uninsurable risk occurring (if it has not already occurred), the financial consequences for such company if such Uninsurable risk did occur (or has occurred) and other mitigants against such consequences which may be available to such company the parties shall meet to discuss the means by which the risk should be managed or shared (including without limitation minimising considering the issue of self–insurance by either party). If the requirements of Clause 53.14.1 are satisfied, but the parties cannot agree as to how to manage or share the risk, then: where such requirements are satisfied in respect of such third party liability insurance the Authority shall (at the Authority’s option) either pay to DBFM Co an amount equal to the amount calculated in accordance with Section 3 (Consequences of Termination for Force Majeure) of Schedule Part 17 (Compensation on Termination) and this Agreement will terminate, or elect to allow this Agreement to continue and Clause 53.14.2(b) below shall thereafter apply in respect of such risk; and where such requirements are satisfied in respect of [contractors’ ‘all risks’ insurance, property damage insurance, third party liability insurance (if the Authority elects to allow this Agreement to continue in accordance with Clause 53.14.2(a)), delay in start up and business interruption insurance (but not loss of profits) or statutory insurances] this Agreement shall continue and on the occurrence of the risk (but only for as long as such risk remains Uninsurable) the Authority shall (at the Authority’s option) either pay to DBFM Co an amount equal to insurance proceeds that would have been payable had the relevant insurance continued to be available and this Agreement will continue, or an amount equal to the amount calculated in accordance with Section 3 (Consequences of Termination for Force Majeure) of Schedule Part 17 (Compensation on Termination) plus (in relation to third party liability insurance only) the amount of any costs insurance proceeds that would have been payable whereupon this Agreement will terminate; and expenses where pursuant to Clauses 53.14.2(a) and/or 53.14.2(b) this Agreement continues then the Annual Service Payment shall be reduced in each year for which might resultthe relevant insurance is not maintained by an amount equal to the premium paid (or which would have been paid) by DBFM Co in respect of the relevant risk in the year prior to it becoming Uninsurable (index linked from the date that the risk becomes Uninsurable) save to the extent that such reduction is otherwise reflected in a reduction in the payments claimed by DBFM Co pursuant to paragraph 3.1 of Section 6 (Pass Through Costs) of Schedule Part 14 (Payment Mechanism). The LEP Where the risk is Uninsurable for part of a year only the reduction in the Annual Service Payment shall give be pro rated to the Local number of months for which the risk is Uninsurable. where pursuant to Clauses 53.14.2(a) and/or 53.14.2(b) this Agreement continues DBFM Co shall approach the insurance market at least every four months to establish whether the risk remains Uninsurable. As soon as DBFM Co is aware (and the parties agree or it is determined pursuant to the Dispute Resolution Procedure) that the risk is no longer Uninsurable, DBFM Co shall take out and maintain or procure the taking out and maintenance of insurance (to be incepted as soon as is reasonably practicable) for such risk in accordance with this Agreement; in respect of any period between the Authority twenty receiving notification in accordance with Clause 53.14.1(a) that a TPL Risk has become Uninsurable and the Authority’s notification to the DBFM Co in accordance with Clause 53.14.2(a) in respect of such risk then, provided it is ultimately agreed or determined that the requirements of Clause 53.14.1(b) are satisfied in respect of the Uninsurable TPL Risk and subject to Clause 53.14.2(f) below, Clause 53.14.2(b) shall apply in respect of occurrences of the Uninsurable TPL Risk during such period unless the parties otherwise agree how to manage the risk during this period; and Clause 53.14.2(e) shall only apply provided DBFM Co does not unreasonably materially delay (a) agreement and/or determination in accordance with the Dispute Resolution Procedure as to whether the requirements of Clause 53.14.1(b) are satisfied in respect of the Uninsurable TPL Risk and/or (b) meeting with the Authority to discuss the means by which the risk should be managed. Where this Clause 53.14.2 applies and this Agreement continues, DBFM Co shall, subject to Clause 53.14.2(c), be relieved of its obligations to maintain insurance in respect of the relevant Uninsurable Risk. If, pursuant to Clause 53.14.1(b), the Authority elects to make payment of compensation to DBFM Co (such that this Agreement will terminate)(the “Relevant Payment”), DBFM Co shall have the option (exercisable in writing within (20) Business Days' prior written notice Days of the cancellationdate of such election by the Authority (the “Option Period”)) to pay to the Authority on or before the end of the Option Period, non an amount equal to the insurance proceeds that would have been payable had the relevant risk not become Uninsurable, in which case this Agreement will continue (and the Relevant Payment will not be made by the Authority), and DBFM Co’s payment shall be applied for the same purpose and in the same manner as insurance proceeds would have been applied had the relevant risk not become Uninsurable. During the Operational Term, the Authority shall be entitled to notify DBFM Co that a risk has become Uninsurable under paragraph (b) of the definition of “Uninsurable”. Following such notification, Clauses 53.14.1(b) to 53.14.3 (except Clause 53.14.1(b)(ii) )) shall apply as if DBFM Co has issued a notice under Clause 53.14.1(a). If, upon the renewal or amendment to of any of the insurances (whether held by it on a project specific basis or by its supply chain or Insurances: any Insurance Term is not available to DBFM Co in the PSP under a group policy) set out in Schedule 7 (Required Insurances). [Professional indemnity insurance33 In addition to worldwide insurance market with reputable insurers of good standing; and/or the insurance referred to premium payable for Insurance incorporating such Insurance Term is such that the Insurance Term is not generally being incorporated in clause 10.1(a) if the LEP is due to carry out activities that should have the benefit of professional indemnity insurance, the LEP undertakes to procure and maintain in force professional indemnity insurance (PI Insurance) provided that such insurance is generally available procured in the worldwide insurance market to members with reputable insurers of similar businesses at commercially reasonable rates and provided further that payment of any increased or additional premiums required good standing by insurers contractors in the United Kingdom, other than, in each case by reason of one or more actions of DBFM Co and/or any sub-contractor of DBFM Co (of any tier) then Clause 53.15.2, shall apply. If it is agreed or determined that Clause 53.15.1 applies then the LEP's own claims record or other acts, omissions, matters or things peculiar Authority shall waive DBFM Co’s obligations in Clauses 53.1 to 53.3 and/or Schedule Part 15 (Insurance Requirements) in respect of that particular Insurance Term and DBFM Co shall not be considered in breach of its obligations regarding the LEP will be deemed to be within the reasonable rates and, where such maintenance of insurance is effected, to: provide evidence satisfactory to the Local Authority (as and when reasonably required by the Local Authority) of the PI Insurance being in full force and effect from the date on which the PI Insurance shall have been procured pursuant to this clause 10.6 until the date six (6) years from and including the completion of all the Works (such evidence to include details Agreement as a result of the cover) including confirmation failure to maintain insurance incorporating such Insurance Term for so long as the relevant circumstances described in Clause 53.15.1 continue to apply to such Insurance Term. To the extent that the parties agree (acting reasonably), or it is determined pursuant to the Dispute Resolution Procedure, that an alternative or replacement term and /or condition of territorial limits, levels of excess, insurers, policy number and indemnity limit (which shall be a minimum of [five million pounds (£5,000,000)]34 either each and every loss or insurance is available to DBFM Co in the aggregate; provide the Local Authority worldwide insurance market with notice of: any cancellation reputable insurers of the PI Insurance not less than thirty (30) days prior to good standing which if included in the relevant cancellation date; and any adverse material changes to, insurance policy would fully or suspension of, cover relevant partially address DBFM Co’s inability to maintain or procure the Project not less than thirty (30) days prior to maintenance of insurance with the relevant change Insurance Term, at a cost which contractors in the UK are (at such time) generally prepared to pay, DBFM Co shall maintain or suspension; and inform procure the Local maintenance of insurance including such alternative or replacement term and/or condition. DBFM Co shall notify the Authority as soon as reasonably practicable and in any event within five (5) days of any claim under becoming aware that Clause 53.15.1(a) and/or Clause 53.15.1(b) are likely to apply or (on expiry of the PI Insurance relevant insurance then in place) do apply in respect of an Insurance Term (irrespective of the Project reason for the same). During the Operational Term the Authority shall be entitled to notify DBFM Co that Clause 53.15.1(b) is likely to apply or (on expiry of the relevant insurance then in excess place) does apply in respect of £1m, an Insurance Term (irrespective of the reason for the same). DBFM Co shall provide the Authority with such information as the Authority reasonably requests regarding the unavailability of the Insurance Term and the parties shall meet to discuss the means by which such unavailability should be managed as soon as is reasonably practicable. In the event that Clause 53.15.1(a) and/or Clause 53.15.1(b) apply in respect of an Insurance Term, (irrespective of the reasons for the same) DBFM Co shall approach the insurance market at least every four months to establish whether Clause 53.15.1(a) and/or Clause 53.15.1(b) remain applicable to the Local Authority Insurance Term. As soon as DBFM Co is aware and the Local Authority may reasonably require in relation to such claim and provide notice of any potential breach of the aggregate limit of the policy.] The LEP warrants parties agree or it is determined pursuant to the Local AuthorityDispute Resolution Procedure that Clause 53.15.1(a) and/or Clause 53.15.1(b) has ceased to apply to the Insurance Term, DBFM Co shall take out and maintain or procure the taking out and maintenance of insurance (to be incepted as at soon as is reasonably practicable) incorporating such Insurance Term in accordance with this Agreement. With effect from the date of this Agreement, the Authority and DBFM Co shall each designate or appoint an insurance and risk manager and notify details of the same to the other party. Such person shall: be responsible for dealing with all risk management matters on behalf of its appointing or designating party including (without limitation) ensuring compliance by that party with this Clause 53.16; advise and report to that party on such matters; and ensure that any report or survey conducted by any insurer of any relevant procedures in relation to the Project is disclosed to the parties. Without prejudice to the provisions of Clause 53.16, the parties shall notify one another, and in DBFM Co's case the relevant insurer, of any circumstances which may give rise to a claim of a value equal to or in excess of [ l ] [([ l ])] (index linked) under the Insurances within [ l ] Business Days of becoming aware of the same (or earlier, if so requested by the terms set out in Schedule 6 (Corporate Warranties by of the LEPrelevant insurance policy). Each If any insurer disputes any such claim, DBFM Co shall provide the Authority with full details of any disputed claim and the LEP’s warranties parties shall liaise with one another to ensure that the relevant claim is preserved or pursued. All insurance proceeds received by DBFM Co under the insurances referred to in paragraph 1 (Contractor's "All Risk" Insurance) of Section 1 (Insurance Requirements) and paragraph 1 (Property Damage Insurance) of Section 2 (Policies to be taken out by DBFM Co and Maintained from the Actual Completion Date) of Schedule Part 15 (Insurance Requirements) shall be separate paid into the Insurance Proceeds Account and independent and, save as expressly provided to the contrary, shall not be limited by reference to any of them or by any other provisions of applied in accordance with this Agreement. The LEP hereby acknowledges Agreement and agrees that compliance by it in accordance with the LEP’s warranties (or any of them) shall not itself constitute performance of any of its other obligations under this Insurance Proceeds Account Agreement. Subject to the provisions of Schedule 13 the Funders' Direct Agreement and Clause 53.22 (TUPEReinstatement), Employees and Pensions) the LEP DBFM Co shall not in apply any way be relieved from any obligation under this Agreement nor shall it be entitled to claim against the Local Authority on grounds that any information, whether obtained from the Local Authority or otherwise (including information made available by the Local Authority) is incorrect or insufficient and it shall make its own enquiries as to the accuracy and adequacy of that information; neither the Local Authority nor any of its agents, servants or advisers shall be liable to the LEP (whether in contract, tort or otherwise and whether or not arising out proceeds of any negligence on policies of Insurance: in the part case of third party legal liability or employers' liability insurance, in satisfaction of the Local Authority claim, demand, proceeding or any of its agents, servants or advisers) liability in respect of any inadequacy which such proceeds are payable; and in the case of any kind whatsoever other insurance other than delay in start up or business interruption insurance, so as to ensure the Information; performance by DBFM Co of its obligations under this Agreement, including where necessary the Local Authority gives no warranty reinstatement, restoration or undertaking that the Information represents all replacement of the information in its possession Facilities, assets, materials or power relevant or material goods affected by the event giving rise to the Projectinsurance claim and consequent payment of proceeds. Neither Where reinstatement monies are required to be released from the Local Insurance Proceeds Account DBFM Co shall obtain the Authority's consent in accordance with the Insurance Proceeds Account Agreement. The Authority nor any of shall give its agents, servants consent (or advisers shall be liable confirm that it is withholding its consent) to the LEP in respect release of monies from the Insurance Proceeds Account within one (1) Business Day of a request from DBFM Co (provided that such consent must not be unreasonably withheld). Subject to Clause 49, if the proceeds of any failure insurance claim are insufficient to disclose or cover the settlement of such claims, DBFM Co will make available to the LEP (whether before or after the execution of good any of the Project Documents) any information, documents or data or to keep the Information up to date or to inform the LEP (whether before or after the execution of the Project Documents) of any inaccuracy, error, omission, unfitness for purpose, defects or inadequacy in the Information; the LEP acknowledges and confirms that: it has conducted its own analysis and review of the Information and, before execution of the Project Documents, has satisfied or will satisfy itself as to the accuracy, completeness and fitness for purpose of all such Information upon which it places reliance or upon which it should have placed reliance; and it shall not be entitled to make any claim against the Local Authority or any of its agents, servants or advisers, whether in damages or for extensions of time or additional payments under the Project Documents, on the grounds of any misunderstanding or misapprehension in respect of the Information or on the grounds that incorrect or insufficient information relating thereto or to any Site was given to it by any person whether or not in the employment of the Local Authority, nor shall it be relieved from any risks or obligations imposed on or undertaken by it under the Project Documents on any such grounddeficiency forthwith.

Acceptance and compliance. The supply to the Authority of any draft insurance policy or certificate of insurance or other evidence of compliance with this Clause 53 (Insurance) shall not imply acceptance by the Authority (or the Authority's Representative) that: the extent of insurance cover is sufficient and its terms are satisfactory; or in respect of any risks not insured against, that the same were Uninsurable. Neither failure to comply comply, nor full compliance compliance, with the insurance provisions of this Agreement shall relieve the LEP Project Co of its liabilities and obligations under this Agreement. The LEP If a risk usually covered by [contractors’ ‘all risks’ insurance, property damage insurance, third party liability insurance, delay in start up and business interruption insurance (but not loss of profits) or statutory insurances] in each case required under this Agreement becomes Uninsurable then: Project Co shall take all reasonable steps to mitigate notify the effects Authority of any risks risk becoming Uninsurable within five (5) Business Days of becoming aware of the same and in any event at least five (5) Business Days before expiry or claims covered cancellation of any existing insurance in respect of that risk; and if both parties agree, or it is determined in accordance with the Dispute Resolution Procedure that the risk is Uninsurable and that: the risk being Uninsurable is not caused by the actions of Project Co or any sub-contractor of Project Co (of any tier); and Project Co has demonstrated to the Authority that Project Co and a prudent board of directors of a company operating the same or substantially similar businesses in the United Kingdom to that operated by Project Co would in similar circumstances (in the absence of the type of relief envisaged by this clause Clause) be acting reasonably and in the best interests of the company if they resolved to cease to operate such businesses as a result of that risk becoming Uninsurable, taking into account inter alia (and without limitation) the likelihood of the Uninsurable risk occurring (if it has not already occurred), the financial consequences for such company if such Uninsurable risk did occur (or has occurred) and other mitigants against such consequences which may be available to such company the parties shall meet to discuss the means by which the risk should be managed or shared (including without limitation minimising considering the issue of self–insurance by either party). If the requirements of Clause 53.14.1 are satisfied, but the parties cannot agree as to how to manage or share the risk, then: where such requirements are satisfied in respect of such third party liability insurance the Authority shall (at the Authority’s option) either pay to Project Co an amount equal to the amount calculated in accordance with Section 3 (Compensation on Termination for Force Majeure) of Schedule Part 17 (Compensation on Termination) and this Agreement will terminate, or elect to allow this Agreement to continue and Clause 53.14.2.1(b) below shall thereafter apply in respect of such risk; and where such requirements are satisfied in respect of [contractors’ ‘all risks’ insurance, property damage insurance, third party liability insurance (if the Authority elects to allow this Agreement to continue in accordance with Clause 53.14.2.1(a)), delay in start up and business interruption insurance (but not loss of profits) or statutory insurances] this Agreement shall continue and on the occurrence of the risk (but only for as long as such risk remains Uninsurable) the Authority shall (at the Authority’s option) either pay to Project Co an amount equal to insurance proceeds that would have been payable had the relevant insurance continued to be available and this Agreement will continue, or an amount equal to the amount calculated in accordance with Section 3 (Compensation on Termination for Force Majeure) of Schedule Part 17 (Compensation on Termination) plus (in relation to third party liability insurance only) the amount of any costs insurance proceeds that would have been payable whereupon this Agreement will terminate; and expenses where pursuant to Clauses 53.14.2.1(a) and/or 53.14.2.1(b) this Agreement continues then the Annual Service Payment shall be reduced in each year for which might resultthe relevant insurance is not maintained by an amount equal to the premium paid (or which would have been paid) by Project Co in respect of the relevant risk in the year prior to it becoming Uninsurable (index linked from the date that the risk becomes Uninsurable) save to the extent that such reduction is otherwise reflected in a reduction in the payments claimed by Project Co pursuant to paragraph 3.1 of Section 6 (Pass Through Costs) of Schedule Part 14 (Payment Mechanism). The LEP Where the risk is Uninsurable for part of a year only the reduction in the Annual Service Payment shall give be pro rated to the Local number of months for which the risk is Uninsurable; where pursuant to Clauses 53.14.2.1(a) and/or 53.14.2.1(b) this Agreement continues Project Co shall approach the insurance market at least every four months to establish whether the risk remains Uninsurable. As soon as Project Co is aware (and, in relation to a risk that has become Uninsurable during the Operational Term, the Authority twenty agrees) that the risk is no longer Uninsurable, Project Co shall take out and maintain or procure the taking out and maintenance of insurance (to be incepted as soon as is reasonably practicable) for such risk in accordance with this Agreement; in respect of any period between the Authority receiving notification in accordance with Clause 53.14.1.1(a) that a TPL Risk has become Uninsurable and the Authority’s notification to the Project Co in accordance with Clause 53.14.2.1(a) in respect of such risk then, provided it is ultimately agreed or determined that the requirements of Clause 53.14.1.1(b) are satisfied in respect of the Uninsurable TPL Risk and subject to Clause 53.14.2.1(f) below, Clause 53.14.2.1(b) shall apply in respect of occurrences of the Uninsurable TPL Risk during such period unless the parties otherwise agree how to manage the risk during this period; and Clause 53.14.2.1(e) shall only apply provided the Project Co does not unreasonably materially delay (a) agreement and/or determination in accordance with the Dispute Resolution Procedure as to whether the requirements of Clause 53.14.1.1(b) are satisfied in respect of the Uninsurable TPL Risk and/or (b) meeting with the Authority to discuss the means by which the risk should be managed. Where this Clause 53.14.2 applies and this Agreement continues, Project Co shall, subject to Clause 53.14.2.1(c), be relieved of its obligations to maintain insurance in respect of the relevant Uninsurable Risk. If, pursuant to Clause 53.14.1.1(b), the Authority elects to make payment of compensation to Project Co (such that this Agreement will terminate)(the “Relevant Payment”), Project Co shall have the option (exercisable in writing within (20) Business Days' prior written notice Days of the cancellationdate of such election by the Authority (the “Option Period”)) to pay to the Authority on or before the end of the Option Period, non an amount equal to the insurance proceeds that would have been payable had the relevant risk not become Uninsurable, in which case this Agreement will continue (and the Relevant Payment will not be made by the Authority), and Project Co’s payment shall be applied for the same purpose and in the same manner as insurance proceeds would have been applied had the relevant risk not become Uninsurable. During the Operational Term, the Authority shall be entitled to notify Project Co that a risk has become Uninsurable under paragraph (b) of the definition of "Uninsurable". Following such notification Clauses 53.14.1.1(b) to 53.14.3 (except Clause 53.14.1.1(b)(ii)) shall apply as if Project Co has issued a notice under Clause 53.14.1.1(a). If, upon the renewal or amendment to of any of the insurances (whether held by it on a project specific basis or by its supply chain or Insurances: any Insurance Term is not available to Project Co in the PSP under a group policy) set out in Schedule 7 (Required Insurances). [Professional indemnity insurance33 In addition to worldwide insurance market with reputable insurers of good standing; and/or the insurance referred to premium payable for Insurance incorporating such Insurance Term is such that the Insurance Term is not generally being incorporated in clause 10.1(a) if the LEP is due to carry out activities that should have the benefit of professional indemnity insurance, the LEP undertakes to procure and maintain in force professional indemnity insurance (PI Insurance) provided that such insurance is generally available procured in the worldwide insurance market to members with reputable insurers of similar businesses at commercially reasonable rates and provided further that payment of any increased or additional premiums required good standing by insurers contractors in the United Kingdom, other than, in each case by reason of one or more actions of Project Co and/or any sub-contractor of Project Co (of any tier) then Clause 53.15.2, shall apply. If it is agreed or determined that Clause 53.15.1 applies then the LEP's own claims record or other acts, omissions, matters or things peculiar Authority shall waive Project Co’s obligations in Clauses 53.1 to 53.3 and/or Schedule Part 15 (Insurance Requirements) in respect of that particular Insurance Term and Project Co shall not be considered in breach of its obligations regarding the LEP will be deemed to be within the reasonable rates and, where such maintenance of insurance is effected, to: provide evidence satisfactory to the Local Authority (as and when reasonably required by the Local Authority) of the PI Insurance being in full force and effect from the date on which the PI Insurance shall have been procured pursuant to this clause 10.6 until the date six (6) years from and including the completion of all the Works (such evidence to include details Agreement as a result of the cover) including confirmation failure to maintain insurance incorporating such Insurance Term for so long as the relevant circumstances described in Clause 53.15.1 continue to apply to such Insurance Term. To the extent that the parties agree (acting reasonably), or it is determined pursuant to the Dispute Resolution Procedure, that an alternative or replacement term and /or condition of territorial limits, levels of excess, insurers, policy number and indemnity limit (which shall be a minimum of [five million pounds (£5,000,000)]34 either each and every loss or insurance is available to Project Co in the aggregate; provide the Local Authority worldwide insurance market with notice of: any cancellation reputable insurers of the PI Insurance not less than thirty (30) days prior to good standing which if included in the relevant cancellation date; and any adverse material changes to, insurance policy would fully or suspension of, cover relevant partially address Project Co’s inability to maintain or procure the Project not less than thirty (30) days prior to maintenance of insurance with the relevant change Insurance Term, at a cost which contractors in the UK are (at such time) generally prepared to pay, Project Co shall maintain or suspension; and inform procure the Local maintenance of insurance including such alternative or replacement term and/or condition. Project Co shall notify the Authority as soon as reasonably practicable and in any event within five (5) days of any claim under becoming aware that Clause 53.15.1.1(a) and/or Clause 53.15.1.1(b) are likely to apply or (on expiry of the PI Insurance relevant insurance then in place) do apply in respect of an Insurance Term (irrespective of the reason for the same). During the Operational Term the Authority shall be entitled to notify Project Co that Clause 53.15.1.1(b) is likely to apply or (on expiry of the relevant insurance then in excess place) does apply in respect of £1m, an Insurance Term (irrespective of the reason for the same). Project Co shall provide the Authority with such information as the Authority reasonably requests regarding the unavailability of the Insurance Term and the parties shall meet to discuss the means by which such unavailability should be managed as soon as is reasonably practicable. In the event that Clause 53.15.1.1(a) and/or Clause 53.15.1.1(b) apply in respect of an Insurance Term, (irrespective of the reasons for the same) Project Co shall approach the insurance market at least every four months to establish whether Clause 53.15.1.1(a) and/or Clause 53.15.1.1(b) remain applicable to the Local Authority Insurance Term. As soon as the Local Authority may reasonably require in relation Project Co is aware that Clause 53.15.1.1(a) and/or Clause 53.15.1.1(b) has ceased to such claim and provide notice of any potential breach of the aggregate limit of the policy.] The LEP warrants apply to the Local AuthorityInsurance Term and the Authority agrees, Project Co shall take out and maintain or procure the taking out and maintenance of insurance (to be incepted as at soon as is reasonably practicable) incorporating such Insurance Term in accordance with this Agreement. With effect from the date of this Agreement, on the terms set out in Schedule 6 (Corporate Warranties by the LEP). Each Authority and Project Co shall each designate or appoint an insurance and risk manager and notify details of the LEP’s warranties shall be separate and independent and, save as expressly provided same to the contrary, shall not other party. Such person shall: be limited responsible for dealing with all risk management matters on behalf of its appointing or designating party including (without limitation) ensuring compliance by reference that party with this Clause 53.16; advise and report to that party on such matters; and ensure that any of them report or survey conducted by any other provisions of this Agreement. The LEP hereby acknowledges and agrees that compliance by it with the LEP’s warranties (or any of them) shall not itself constitute performance insurer of any of its other obligations under this Agreementrelevant procedures in relation to the Project is disclosed to the parties. Subject Without prejudice to the provisions of Schedule 13 Clause 53.16, the parties shall notify one another, and in Project Co's case the relevant insurer, of any circumstances which may give rise to a claim of a value equal to or in excess of [ ] pounds (TUPE£[ ]) (index linked) under the Insurances within [ ] Business Days of becoming aware of the same (or earlier, Employees and Pensions) the LEP shall not in any way be relieved from any obligation under this Agreement nor shall it be entitled to claim against the Local Authority on grounds that any information, whether obtained from the Local Authority or otherwise (including information made available if so requested by the Local Authority) is incorrect or insufficient and it terms of the relevant insurance policy). If any insurer disputes any such claim, Project Co shall make its own enquiries as to provide the accuracy and adequacy of that information; neither the Local Authority nor any of its agents, servants or advisers shall be liable to the LEP (whether in contract, tort or otherwise and whether or not arising out with full details of any negligence on disputed claim and the part of the Local Authority or any of its agents, servants or advisers) in respect of any inadequacy of any kind whatsoever in the Information; the Local Authority gives no warranty or undertaking parties shall liaise with one another to ensure that the Information represents all of the information in its possession relevant claim is preserved or power relevant or material to the Project. Neither the Local Authority nor any of its agents, servants or advisers shall be liable to the LEP in respect of any failure to disclose or make available to the LEP (whether before or after the execution of any of the Project Documents) any information, documents or data or to keep the Information up to date or to inform the LEP (whether before or after the execution of the Project Documents) of any inaccuracy, error, omission, unfitness for purpose, defects or inadequacy in the Information; the LEP acknowledges and confirms that: it has conducted its own analysis and review of the Information and, before execution of the Project Documents, has satisfied or will satisfy itself as to the accuracy, completeness and fitness for purpose of all such Information upon which it places reliance or upon which it should have placed reliance; and it shall not be entitled to make any claim against the Local Authority or any of its agents, servants or advisers, whether in damages or for extensions of time or additional payments under the Project Documents, on the grounds of any misunderstanding or misapprehension in respect of the Information or on the grounds that incorrect or insufficient information relating thereto or to any Site was given to it by any person whether or not in the employment of the Local Authority, nor shall it be relieved from any risks or obligations imposed on or undertaken by it under the Project Documents on any such groundpursued.