Common use of RETENDERING PROCEDURE Clause in Contracts

RETENDERING PROCEDURE. If the Authority elects to retender the provision of the Project under paragraph 1.1.1, then the following provisions shall apply: The objective of the retendering procedure shall be to establish and pay to the Contractor the Adjusted Highest Compliant Tender Price, as a result of the Tender Process. The Authority shall (subject to any legal requirements preventing it from doing so) use its reasonable endeavours to complete the Tender Process as soon as practicable. The Authority shall notify the Contractor of the Qualification Criteria and the other requirements and terms of the Tender Process, including the timing of the Tender Process, but shall act reasonably in setting such requirements and terms. The Contractor authorises the release of any information by the Authority under the Tender Process which would otherwise be prevented under Clause 84 (Confidentiality) that is reasonably required as part of the Tender Process. The Contractor may, at its own cost, appoint a person (the “Tender Process Monitor”) to monitor the Tender Process for the purpose of monitoring and reporting to the Contractor and the Senior Lenders on the Authority’s compliance with the Tender Process and making representations to the Authority. The Tender Process Monitor will not disclose any confidential information to the Contractor or any other person (and shall provide an undertaking to the Authority to such effect as a condition of its appointment) but shall be entitled to advise the Contractor as to whether it considers that the Authority has acted in accordance with the Tender Process, and correctly determined the Adjusted Highest Compliant Tender Price. The Tender Process Monitor shall enter into a confidentiality agreement with the Authority in a form acceptable to the Authority and shall be entitled to attend all meetings relating to the Tender Process, inspect copies of the tender documentation and bids and shall be required to make written representations to the Authority regarding compliance with the Tender Process. All representations shall be made by the Tender Process Monitor in a timely manner as the Tender Process proceeds. The Authority shall not be bound to consider or act upon such representations but acknowledges that such representations may be referred to by the Contractor in the event that the Contractor refers a dispute relating to the Adjusted Highest Compliant Tender Price to dispute resolution in accordance with the Dispute Resolution Procedure. For all or any part of a Month, falling within the period from the Termination Date to the Compensation Date, the Authority shall pay to the Contractor: the Post Termination Service Amount for that Month, on or before the date falling ten (10) Business Days after the end of that Month; and the Post Termination Service Amount for the period ending on the Compensation Date, on or before the date falling twenty (20) Business Days after the Compensation Date. If any Post Termination Service Amount is less than zero, then it shall be carried forward and shall be set off against any future positive Post Termination Service Amounts. If any such Post Termination Service Amount has not been set off on or before the Compensation Date then it shall be taken into account in the calculation of the Adjusted Highest Compliant Tender Price. The Authority shall require bidders to bid on the basis that they will receive the benefit of any outstanding claims under material damage insurance policies and amounts (if any) standing to the credit of the Joint Insurance Account on the date that the New Contract is entered into. As soon as practicable after tenders have been received or in the case of paragraph 2.10.2 below following the expiry of the time stipulated for the return of tenders, either: the Authority shall (acting reasonably) determine the Compliant Tenders and shall notify the Contractor of the Adjusted Highest Compliant Tender Price; or where the Termination Date occurred during the period commencing on the Commencement Date and ending on [the [Bidders to bid back] anniversary of] [Note: Bidders to delete if Works Period only derogation is bid back] the Services Commencement Date and the Authority has received no Compliant Tenders within the time stipulated for the return of such tenders then the following provisions of this paragraph 2 shall not apply to that termination and the provisions of paragraph 3 (No Retendering Procedure) shall apply. [Note: Bidders to delete whole paragraph if derogation not required]. If the Contractor refers a dispute relating to the Adjusted Highest Compliant Tender Price to the Dispute Resolution Procedure, the Authority shall be entitled to enter into a New Contract. The Authority shall pay to the Contractor the Adjusted Highest Compliant Tender Price on or before the date falling [twenty (20)] Business Days after it has been determined under the Dispute Resolution Procedure and the Authority shall pay interest to the Contractor at the Senior Debt Rate on any amount of Adjusted Highest Compliant Tender Price which has been withheld from the date specified in paragraph 2.12 below until the date specified in this paragraph 2.11. For the avoidance of doubt, where there is an agreed amount and a disputed amount in respect of the Adjusted Highest Compliant Tender Price the Authority shall (where it is agreed that the Adjusted Highest Compliant Tender Price is a positive number) pay to the Contractor the agreed amount no later than the date specified in paragraph 2.12, with the disputed amount being dealt with in accordance with this paragraph 2.11. Subject to paragraphs 2.11 and 2.15, the Authority shall pay to the Contractor an amount equal to the Adjusted Highest Compliant Tender Price no later than the date falling [twenty (20)] Business Days after the date of the New Contract. The discharge by the Authority of its payment obligation in paragraphs 2.11 and/or 2.12 above shall be in full and final settlement of all the Contractor’s claims and rights against the Authority for breaches and/or termination of this Contract and the Ancillary Documents whether under contract, delict, restitution or otherwise, save for any liability of the Authority which arose prior to the Termination Date that has not already been taken into account in determining the Adjusted Highest Compliant Tender Price. Subject to paragraphs 2.15 and 2.18, if the Authority has not paid an amount equal to the Adjusted Highest Compliant Tender Price to the Contractor on or before the date falling two (2) years after the Termination Date then the provisions of this paragraph 2 shall not apply to that termination and the provisions of paragraph 3 shall apply instead. If the Adjusted Highest Compliant Tender Price is zero (0) or a negative number then the Authority shall have no obligation to make any payment to the Contractor and with effect from the time that the Authority gives notice of that event to the Contractor, the Authority shall be released from all liability to the Contractor for breaches and/or termination of this Contract and any other Ancillary Document whether under contract, delict, restitution or otherwise save for any antecedent liability of the Authority which arose prior to the Termination Date (but not from the termination itself) that has not already been taken into account in determining the Adjusted Highest Compliant Tender Price. If the Adjusted Highest Compliant Tender Price is less than zero then an amount equal to the Adjusted Highest Compliant Tender Price shall be due and payable by the Contractor to the Authority on the date of the New Contract. The Authority may elect at any time prior to the receipt of a Compliant Tender to follow the no retendering procedure under paragraph 3 by notifying the Contractor that this election has been made. If the Authority has received all bids from bidders under the Tender Process and has received a Compliant Tender but decides not to complete the Tender Process, it shall notify the Contractor of this decision and pay to the Contractor an amount equal to the Adjusted Highest Compliant Tender Price within [twenty (20)] Business Days of such notification.

RETENDERING PROCEDURE. If the Authority elects to retender the provision of the Project under paragraph 1.1.1, then the following provisions shall apply: The objective of the retendering procedure Tender Process shall be to establish and pay to the Contractor the Adjusted Highest enter into a New Agreement with a Compliant Tender Price, as a result of the Tender ProcessTenderer. The Authority shall (subject to any legal requirements preventing it from doing so) use its all reasonable endeavours to complete the Tender Process as soon as practicable. The Authority shall as soon as reasonably practicable notify the Contractor Sub-hubco of the Qualification Criteria and the other requirements and terms of the Tender Process, including the timing of the Tender Process, but and shall act reasonably in setting such requirements and terms. The Contractor Sub-hubco authorises the release of any information by the Authority under the Tender Process which would otherwise be prevented under Clause 84 61 (Confidentiality) that is reasonably required as part of the Tender Process. The Contractor For all or any part of a month, falling within the period from the Termination Date to the Compensation Date, the Authority shall pay to Sub-hubco: the Post Termination Service Amount for each completed month, on or before the date falling ten (10) Business Days after the end of that month; and the Post Termination Service Amount for the period from the end of the last completed month until the Compensation Date, on or before the date falling twenty (20) Business Days after the Compensation Date. Sub-hubco may, at its own cost, appoint a person (the “Tender Process Monitor”) to monitor the Tender Process for the purpose of monitoring and reporting to the Contractor Sub-hubco and the Senior Lenders Funders on the Authority’s 's compliance with the Tender Process and making representations to the Authority. The Tender Process Monitor will not disclose any confidential information to the Contractor or any other person (and shall provide an undertaking to the Authority to such effect as a condition of its appointment) but shall be entitled to advise the Contractor as to whether it considers that the Authority has acted in accordance with the Tender Process, and correctly determined the Adjusted Highest Compliant Tender Price. The Tender Process Monitor shall enter into a confidentiality agreement with the Authority in a form acceptable to the Authority and shall be entitled to attend all meetings relating to the Tender Process, inspect copies of all the tender documentation and bids and shall be required to make written representations to the Authority regarding as to compliance with the Tender Process. All representations shall be made by the Tender Process Monitor in a timely manner as the Tender Process proceeds. The Authority shall not be bound to consider or act upon such representations but acknowledges that such representations may be referred to by the Contractor Sub-hubco in the event that the Contractor Sub-hubco refers a dispute relating as to the Adjusted Highest Compliant Tender Price to dispute resolution in accordance with the Dispute Resolution Procedure. For all The Tender Process Monitor will not disclose confidential information to Sub-hubco or the Senior Funders or any part of a Month, falling within the period from the Termination Date other person (and shall provide an undertaking to the Compensation Date, Authority to such effect as a condition of his appointment) but shall be entitled to advise Sub-hubco and the Senior Funders on whether it considers that the Authority shall pay to has acted in accordance with the Contractor: Tender Process and correctly determined the Post Termination Service Amount for that Month, on or before the date falling ten (10) Business Days after the end of that Month; and the Post Termination Service Amount for the period ending on the Compensation Date, on or before the date falling twenty (20) Business Days after the Compensation DateAdjusted Highest Compliant Tender Price. If any Post Termination Service Amount is less than zero, zero then it shall may be carried forward and shall may be set off against any future positive Post Termination Service Amounts. If any such Post Termination Service Amount has not been set off on or before the Compensation Date then it shall be taken into account in the calculation of the Adjusted Highest Compliant Tender Price. The Authority shall require bidders to bid on the basis that they will receive the benefit of any outstanding claims under material damage insurance policies and amounts the amount (if any) standing to the credit of the Joint Insurance Proceeds Account on the date that the New Contract Agreement is entered into. As soon as practicable after tenders have been received or in the case of paragraph 2.10.2 below following the expiry of the time stipulated for the return of tendersreceived, either: the Authority shall (acting reasonably) determine review and assess the Compliant Tenders and shall notify Sub-hubco of: the Contractor highest Compliant Tender price; the Tender Costs; and its calculation of the Adjusted Highest Compliant Tender Price; or where the Termination Date occurred during the period commencing on the Commencement Date and ending on [the [Bidders to bid back] anniversary of] [Note: Bidders to delete if Works Period only derogation is bid back] the Services Commencement Date and the Authority has received no Compliant Tenders within the time stipulated for the return of such tenders then the following provisions of this paragraph 2 shall not apply to that termination and the provisions of paragraph 3 (No Retendering Procedure) shall apply. [Note: Bidders to delete whole paragraph if derogation not required]. If the Contractor Sub-hubco refers a dispute relating to the Adjusted Highest Compliant Tender Price to the dispute resolution in accordance with Clause 56 (Dispute Resolution ProcedureResolution), the Authority shall irrespective of such dispute be entitled to enter into a New ContractAgreement. The Authority shall pay to the Contractor the Adjusted Highest Compliant Tender Price on or before the date falling [twenty (20)] Business Days after it has been determined under the Dispute Resolution Procedure and the Authority shall pay interest to the Contractor at the Senior Debt Rate on any amount of Adjusted Highest Compliant Tender Price which has been withheld from the date specified in paragraph 2.12 below until the date specified in this paragraph 2.11. For the avoidance of doubt, where there is an agreed amount and a disputed amount in respect of the Adjusted Highest Compliant Tender Price the Authority shall (where it is agreed that the Adjusted Highest Compliant Tender Price is a positive number) pay to the Contractor the agreed amount no later than the date specified in paragraph 2.12, with the disputed amount being dealt with be paid in accordance with Section 5 (General) of this paragraph 2.11Schedule Part 17 (Compensation on Termination). Subject to paragraphs 2.11 1.6 and 2.15, the Authority shall pay to the Contractor an amount equal to the Adjusted Highest Compliant Tender Price no later than the date falling [twenty 1.8 of Section 5 (20)] Business Days after the date of the New Contract. The discharge by the Authority of its payment obligation in paragraphs 2.11 and/or 2.12 above shall be in full and final settlement of all the Contractor’s claims and rights against the Authority for breaches and/or termination General) of this Contract and the Ancillary Documents whether under contract, delict, restitution or otherwise, save for any liability of the Authority which arose prior to the Termination Date that has not already been taken into account in determining the Adjusted Highest Compliant Tender Price. Subject to paragraphs 2.15 and 2.18Schedule Part 17 (Compensation on Termination), if the Authority has not paid an amount equal to the Adjusted Highest Compliant Tender Price to the Contractor Sub-hubco on or before the date falling two (2) years after the Termination Date then the following provisions of this paragraph 2 3 shall not apply to that termination and the provisions of paragraph 3 4 (No Retendering Procedure) shall apply instead. If the Adjusted Highest Compliant Tender Price is zero (0) or a negative number then the Authority shall have no obligation to make any payment to the Contractor and with effect from the time that the Authority gives notice of that event to the Contractor, the Authority shall be released from all liability to the Contractor for breaches and/or termination of this Contract and any other Ancillary Document whether under contract, delict, restitution or otherwise save for any antecedent liability of the Authority which arose prior to the Termination Date (but not from the termination itself) that has not already been taken into account in determining the Adjusted Highest Compliant Tender Price. If the Adjusted Highest Compliant Tender Price is less than zero then an amount equal to the Adjusted Highest Compliant Tender Price shall be due and payable by the Contractor to the Authority on the date of the New Contract. The Authority may elect at any time prior to the receipt of a Compliant Tender Tender, to follow the no retendering procedure under paragraph 3 4 (No Retendering Procedure) by notifying the Contractor Sub-hubco that this election has been made. If the Authority has received all bids from bidders under the Tender Process and has received a Compliant Tender but decides not to complete the Tender Process, it shall notify the Contractor of this decision and pay to the Contractor an amount equal to the Adjusted Highest Compliant Tender Price within [twenty (20)] Business Days of such notification.

RETENDERING PROCEDURE. If the Authority elects to retender the provision of the Project under paragraph 1.1.1, then the following provisions shall apply: The objective of the retendering procedure Tender Process shall be to establish and pay to the Contractor the Adjusted Highest enter into a New Agreement with a Compliant Tender Price, as a result of the Tender ProcessTenderer. The Authority shall (subject to any legal requirements preventing it from doing so) use its all reasonable endeavours to complete the Tender Process as soon as practicable. The Authority shall as soon as reasonably practicable notify the Contractor Project Co of the Qualification Criteria and the other requirements and terms of the Tender Process, including the timing of the Tender Process, but and shall act reasonably in setting such requirements and terms. The Contractor Project Co authorises the release of any information by the Authority under the Tender Process which would otherwise be prevented under Clause 84 61 (Confidentiality) that is reasonably required as part of the Tender Process. The Contractor For all or any part of a month, falling within the period from the Termination Date to the Compensation Date, the Authority shall pay to Project Co: the Post Termination Service Amount for each completed month, on or before the date falling ten (10) Business Days after the end of that month; and the Post Termination Service Amount for the period from the end of the last completed month until the Compensation Date, on or before the date falling twenty (20) Business Days after the Compensation Date. Project Co may, at its own cost, appoint a person (the “Tender Process Monitor”) to monitor the Tender Process for the purpose of monitoring and reporting to the Contractor Project Co and the Senior Lenders Funders on the Authority’s 's compliance with the Tender Process and making representations to the Authority. The Tender Process Monitor will not disclose any confidential information to the Contractor or any other person (and shall provide an undertaking to the Authority to such effect as a condition of its appointment) but shall be entitled to advise the Contractor as to whether it considers that the Authority has acted in accordance with the Tender Process, and correctly determined the Adjusted Highest Compliant Tender Price. The Tender Process Monitor shall enter into a confidentiality agreement with the Authority in a form acceptable to the Authority and shall be entitled to attend all meetings relating to the Tender Process, inspect copies of all the tender documentation and bids and shall be required to make written representations to the Authority regarding as to compliance with the Tender Process. All representations shall be made by the Tender Process Monitor in a timely manner as the Tender Process proceeds. The Authority shall not be bound to consider or act upon such representations but acknowledges that such representations may be referred to by the Contractor Project Co in the event that the Contractor Project Co refers a dispute relating as to the Adjusted Highest Compliant Tender Price to dispute resolution in accordance with the Dispute Resolution Procedure. For all The Tender Process Monitor will not disclose confidential information to Project Co or the Senior Funders or any part of a Month, falling within the period from the Termination Date other person (and shall provide an undertaking to the Compensation Date, Authority to such effect as a condition of his appointment) but shall be entitled to advise Project Co and the Senior Funders on whether it considers that the Authority shall pay to has acted in accordance with the Contractor: Tender Process and correctly determined the Post Termination Service Amount for that Month, on or before the date falling ten (10) Business Days after the end of that Month; and the Post Termination Service Amount for the period ending on the Compensation Date, on or before the date falling twenty (20) Business Days after the Compensation DateAdjusted Highest Compliant Tender Price. If any Post Termination Service Amount is less than zero, zero then it shall may be carried forward and shall may be set off against any future positive Post Termination Service Amounts. If any such Post Termination Service Amount has not been set off on or before the Compensation Date then it shall be taken into account in the calculation of the Adjusted Highest Compliant Tender Price. The Authority shall require bidders to bid on the basis that they will receive the benefit of any outstanding claims under material damage insurance policies and amounts the amount (if any) standing to the credit of the Joint Insurance Proceeds Account on the date that the New Contract Agreement is entered into. As soon as practicable after tenders have been received or in the case of paragraph 2.10.2 below following the expiry of the time stipulated for the return of tendersreceived, either: the Authority shall (acting reasonably) determine review and assess the Compliant Tenders and shall notify Project Co of: the Contractor of Highest Compliant Tender Price; the Tender Costs; and the Adjusted Highest Compliant Tender Price; or where the Termination Date occurred during the period commencing on the Commencement Date and ending on [the [Bidders to bid back] anniversary of] [Note: Bidders to delete if Works Period only derogation is bid back] the Services Commencement Date and the Authority has received no Compliant Tenders within the time stipulated for the return of such tenders then the following provisions of this paragraph 2 shall not apply to that termination and the provisions of paragraph 3 (No Retendering Procedure) shall apply. [Note: Bidders to delete whole paragraph if derogation not required]. If the Contractor Project Co refers a dispute relating to the Adjusted Highest Compliant Tender Price to the dispute resolution in accordance with Clause 56 (Dispute Resolution ProcedureResolution), the Authority shall irrespective of such dispute be entitled to enter into a New ContractAgreement. The Authority shall pay to the Contractor the Adjusted Highest Compliant Tender Price on or before the date falling [twenty (20)] Business Days after it has been determined under the Dispute Resolution Procedure and the Authority shall pay interest to the Contractor at the Senior Debt Rate on any amount of Adjusted Highest Compliant Tender Price which has been withheld from the date specified in paragraph 2.12 below until the date specified in this paragraph 2.11. For the avoidance of doubt, where there is an agreed amount and a disputed amount in respect of the Adjusted Highest Compliant Tender Price the Authority shall (where it is agreed that the Adjusted Highest Compliant Tender Price is a positive number) pay to the Contractor the agreed amount no later than the date specified in paragraph 2.12, with the disputed amount being dealt with be paid in accordance with Section 5 (General) of this paragraph 2.11Schedule Part 17 (Compensation on Termination). Subject to paragraphs 2.11 308.22 and 2.15, the Authority shall pay to the Contractor an amount equal to the Adjusted Highest Compliant Tender Price no later than the date falling [twenty 308.24 of Section 5 (20)] Business Days after the date of the New Contract. The discharge by the Authority of its payment obligation in paragraphs 2.11 and/or 2.12 above shall be in full and final settlement of all the Contractor’s claims and rights against the Authority for breaches and/or termination General) of this Contract and the Ancillary Documents whether under contract, delict, restitution or otherwise, save for any liability of the Authority which arose prior to the Termination Date that has not already been taken into account in determining the Adjusted Highest Compliant Tender Price. Subject to paragraphs 2.15 and 2.18Schedule Part 17 (Compensation on Termination), if the Authority has not paid an amount equal to the Adjusted Highest Compliant Tender Price to the Contractor Project Co on or before the date falling two (2) years after the Termination Date then the following provisions of this paragraph 2 307 shall not apply to that termination and the provisions of paragraph 3 308 (No Retendering Procedure) shall apply instead. If the Adjusted Highest Compliant Tender Price is zero (0) or a negative number then the Authority shall have no obligation to make any payment to the Contractor and with effect from the time that the Authority gives notice of that event to the Contractor, the Authority shall be released from all liability to the Contractor for breaches and/or termination of this Contract and any other Ancillary Document whether under contract, delict, restitution or otherwise save for any antecedent liability of the Authority which arose prior to the Termination Date (but not from the termination itself) that has not already been taken into account in determining the Adjusted Highest Compliant Tender Price. If the Adjusted Highest Compliant Tender Price is less than zero then an amount equal to the Adjusted Highest Compliant Tender Price shall be due and payable by the Contractor to the Authority on the date of the New Contract. The Authority may elect at any time prior to the receipt of a Compliant Tender Tender, to follow the no retendering procedure under paragraph 3 308 (No Retendering Procedure) by notifying the Contractor Project Co that this election has been made. If In the Authority has received all bids from bidders under the Tender Process and has received a Compliant Tender but decides not to complete the Tender Process, it shall notify the Contractor of this decision and pay to the Contractor an amount equal to event that the Adjusted Highest Compliant Tender Price within [twenty (20)] Business Days of such notificationexceeds the Maximum Termination Amount, the Adjusted Highest Compliant Tender Price shall be deemed to be an amount equal to the Maximum Termination Amount.

RETENDERING PROCEDURE. If the Authority elects to retender the provision of the Project under paragraph 1.1.1, then the following provisions shall apply: The objective of the retendering procedure Tender Process shall be to establish and pay to the Contractor the Adjusted Highest enter into a New Agreement with a Compliant Tender Price, as a result of the Tender ProcessTenderer. The Authority shall (subject to any legal requirements preventing it from doing so) use its all reasonable endeavours to complete the Tender Process as soon as practicable. The Authority shall as soon as reasonably practicable notify the Contractor Project Co of the Qualification Criteria and the other requirements and terms of the Tender Process, including the timing of the Tender Process, but and shall act reasonably in setting such requirements and terms. The Contractor Project Co authorises the release of any information by the Authority under the Tender Process which would otherwise be prevented under Clause 84 61 (Confidentiality) that is reasonably required as part of the Tender Process. The Contractor For all or any part of a month, falling within the period from the Termination Date to the Compensation Date, the Authority shall pay to Project Co: the Post Termination Service Amount for each completed month, on or before the date falling ten (10) Business Days after the end of that month; and the Post Termination Service Amount for the period from the end of the last completed month until the Compensation Date, on or before the date falling twenty (20) Business Days after the Compensation Date. Project Co may, at its own cost, appoint a person (the “Tender Process Monitor”) to monitor the Tender Process for the purpose of monitoring and reporting to the Contractor Project Co and the Senior Lenders Funders on the Authority’s 's compliance with the Tender Process and making representations to the Authority. The Tender Process Monitor will not disclose any confidential information to the Contractor or any other person (and shall provide an undertaking to the Authority to such effect as a condition of its appointment) but shall be entitled to advise the Contractor as to whether it considers that the Authority has acted in accordance with the Tender Process, and correctly determined the Adjusted Highest Compliant Tender Price. The Tender Process Monitor shall enter into a confidentiality agreement with the Authority in a form acceptable to the Authority and shall be entitled to attend all meetings relating to the Tender Process, inspect copies of all the tender documentation and bids and shall be required to make written representations to the Authority regarding as to compliance with the Tender Process. All representations shall be made by the Tender Process Monitor in a timely manner as the Tender Process proceeds. The Authority shall not be bound to consider or act upon such representations but acknowledges that such representations may be referred to by the Contractor Project Co in the event that the Contractor Project Co refers a dispute relating as to the Adjusted Highest Compliant Tender Price to dispute resolution in accordance with the Dispute Resolution Procedure. For all The Tender Process Monitor will not disclose confidential information to Project Co or the Senior Funders or any part of a Month, falling within the period from the Termination Date other person (and shall provide an undertaking to the Compensation Date, Authority to such effect as a condition of his appointment) but shall be entitled to advise Project Co and the Senior Funders on whether it considers that the Authority shall pay to has acted in accordance with the Contractor: Tender Process and correctly determined the Post Termination Service Amount for that Month, on or before the date falling ten (10) Business Days after the end of that Month; and the Post Termination Service Amount for the period ending on the Compensation Date, on or before the date falling twenty (20) Business Days after the Compensation DateAdjusted Highest Compliant Tender Price. If any Post Termination Service Amount is less than zero, zero then it shall may be carried forward and shall may be set off against any future positive Post Termination Service Amounts. If any such Post Termination Service Amount has not been set off on or before the Compensation Date then it shall be taken into account in the calculation of the Adjusted Highest Compliant Tender Price. The Authority shall require bidders to bid on the basis that they will receive the benefit of any outstanding claims under material damage insurance policies and amounts the amount (if any) standing to the credit of the Joint Insurance Account on the date that the New Contract Agreement is entered into. As soon as practicable after tenders have been received or in the case of paragraph 2.10.2 below following the expiry of the time stipulated for the return of tendersreceived, either: the Authority shall (acting reasonably) determine review and assess the Compliant Tenders and shall notify Project Co of: the Contractor of Highest Compliant Tender Price; the Tender Costs; and the Adjusted Highest Compliant Tender Price; or where the Termination Date occurred during the period commencing on the Commencement Date and ending on [the [Bidders to bid back] anniversary of] [Note: Bidders to delete if Works Period only derogation is bid back] the Services Commencement Date and the Authority has received no Compliant Tenders within the time stipulated for the return of such tenders then the following provisions of this paragraph 2 shall not apply to that termination and the provisions of paragraph 3 (No Retendering Procedure) shall apply. [Note: Bidders to delete whole paragraph if derogation not required]. If the Contractor Project Co refers a dispute relating to the Adjusted Highest Compliant Tender Price to the dispute resolution in accordance with Clause 56 (Dispute Resolution ProcedureResolution), the Authority shall irrespective of such dispute be entitled to enter into a New ContractAgreement. The Authority shall pay to the Contractor the Adjusted Highest Compliant Tender Price on or before the date falling [twenty (20)] Business Days after it has been determined under the Dispute Resolution Procedure and the Authority shall pay interest to the Contractor at the Senior Debt Rate on any amount of Adjusted Highest Compliant Tender Price which has been withheld from the date specified in paragraph 2.12 below until the date specified in this paragraph 2.11. For the avoidance of doubt, where there is an agreed amount and a disputed amount in respect of the Adjusted Highest Compliant Tender Price the Authority shall (where it is agreed that the Adjusted Highest Compliant Tender Price is a positive number) pay to the Contractor the agreed amount no later than the date specified in paragraph 2.12, with the disputed amount being dealt with be paid in accordance with Section 5 (General) of this paragraph 2.11Schedule Part 17 (Compensation on Termination). Subject to paragraphs 2.11 1.6 and 2.15, the Authority shall pay to the Contractor an amount equal to the Adjusted Highest Compliant Tender Price no later than the date falling [twenty 1.8 of Section 5 (20)] Business Days after the date of the New Contract. The discharge by the Authority of its payment obligation in paragraphs 2.11 and/or 2.12 above shall be in full and final settlement of all the Contractor’s claims and rights against the Authority for breaches and/or termination General) of this Contract and the Ancillary Documents whether under contract, delict, restitution or otherwise, save for any liability of the Authority which arose prior to the Termination Date that has not already been taken into account in determining the Adjusted Highest Compliant Tender Price. Subject to paragraphs 2.15 and 2.18Schedule Part 17 (Compensation on Termination), if the Authority has not paid an amount equal to the Adjusted Highest Compliant Tender Price to the Contractor Project Co on or before the date falling two (2) years after the Termination Date then the following provisions of this paragraph 2 3 shall not apply to that termination and the provisions of paragraph 3 4 (No Retendering Procedure) shall apply instead. If the Adjusted Highest Compliant Tender Price is zero (0) or a negative number then the Authority shall have no obligation to make any payment to the Contractor and with effect from the time that the Authority gives notice of that event to the Contractor, the Authority shall be released from all liability to the Contractor for breaches and/or termination of this Contract and any other Ancillary Document whether under contract, delict, restitution or otherwise save for any antecedent liability of the Authority which arose prior to the Termination Date (but not from the termination itself) that has not already been taken into account in determining the Adjusted Highest Compliant Tender Price. If the Adjusted Highest Compliant Tender Price is less than zero then an amount equal to the Adjusted Highest Compliant Tender Price shall be due and payable by the Contractor to the Authority on the date of the New Contract. The Authority may elect at any time prior to the receipt of a Compliant Tender Tender, to follow the no retendering procedure under paragraph 3 4 (No Retendering Procedure) by notifying the Contractor Project Co that this election has been made. If In the Authority has received all bids from bidders under the Tender Process and has received a Compliant Tender but decides not to complete the Tender Process, it shall notify the Contractor of this decision and pay to the Contractor an amount equal to event that the Adjusted Highest Compliant Tender Price within [twenty (20)] Business Days of such notificationexceeds the Maximum Termination Amount, the Adjusted Highest Compliant Tender Price shall be deemed to be an amount equal to the Maximum Termination Amount.

RETENDERING PROCEDURE. If the Authority elects to retender the provision of the Project under paragraph 1.1.1, then the following provisions shall apply: The objective of the retendering procedure Tender Process shall be to establish and pay to the Contractor the Adjusted Highest enter into a New Agreement with a Compliant Tender Price, as a result of the Tender ProcessTenderer. The Authority shall (subject to any legal requirements preventing it from doing so) use its all reasonable endeavours to complete the Tender Process as soon as practicable. The Authority shall as soon as reasonably practicable notify the Contractor DBFM Co of the Qualification Criteria and the other requirements and terms of the Tender Process, including the timing of the Tender Process, but and shall act reasonably in setting such requirements and terms. The Contractor DBFM Co authorises the release of any information by the Authority under the Tender Process which would otherwise be prevented under Clause 84 61 (Confidentiality) that is reasonably required as part of the Tender Process. The Contractor For all or any part of a month, falling within the period from the Termination Date to the Compensation Date, the Authority shall pay to DBFM Co: the Post Termination Service Amount for each completed month, on or before the date falling ten (10) Business Days after the end of that month; and the Post Termination Service Amount for the period from the end of the last completed month until the Compensation Date, on or before the date falling twenty (20) Business Days after the Compensation Date. DBFM Co may, at its own cost, appoint a person (the “Tender Process Monitor”) to monitor the Tender Process for the purpose of monitoring and reporting to the Contractor DBFM Co and the Senior Lenders Funders on the Authority’s 's compliance with the Tender Process and making representations to the Authority. The Tender Process Monitor will not disclose any confidential information to the Contractor or any other person (and shall provide an undertaking to the Authority to such effect as a condition of its appointment) but shall be entitled to advise the Contractor as to whether it considers that the Authority has acted in accordance with the Tender Process, and correctly determined the Adjusted Highest Compliant Tender Price. The Tender Process Monitor shall enter into a confidentiality agreement with the Authority in a form acceptable to the Authority and shall be entitled to attend all meetings relating to the Tender Process, inspect copies of all the tender documentation and bids and shall be required to make written representations to the Authority regarding as to compliance with the Tender Process. All representations shall be made by the Tender Process Monitor in a timely manner as the Tender Process proceeds. The Authority shall not be bound to consider or act upon such representations but acknowledges that such representations may be referred to by the Contractor DBFM Co in the event that the Contractor DBFM Co refers a dispute relating as to the Adjusted Highest Compliant Tender Price to dispute resolution in accordance with the Dispute Resolution Procedure. For all The Tender Process Monitor will not disclose confidential information to DBFM Co or the Senior Funders or any part of a Month, falling within the period from the Termination Date other person (and shall provide an undertaking to the Compensation Date, Authority to such effect as a condition of his appointment) but shall be entitled to advise DBFM Co and the Senior Funders on whether it considers that the Authority shall pay to has acted in accordance with the Contractor: Tender Process and correctly determined the Post Termination Service Amount for that Month, on or before the date falling ten (10) Business Days after the end of that Month; and the Post Termination Service Amount for the period ending on the Compensation Date, on or before the date falling twenty (20) Business Days after the Compensation DateAdjusted Highest Compliant Tender Price. If any Post Termination Service Amount is less than zero, zero then it shall may be carried forward and shall may be set off against any future positive Post Termination Service Amounts. If any such Post Termination Service Amount has not been set off on or before the Compensation Date then it shall be taken into account in the calculation of the Adjusted Highest Compliant Tender Price. The Authority shall require bidders to bid on the basis that they will receive the benefit of any outstanding claims under material damage insurance policies and amounts the amount (if any) standing to the credit of the Joint Insurance Proceeds Account on the date that the New Contract Agreement is entered into. As soon as practicable after tenders have been received, or where no tenders have been received or in by the case of paragraph 2.10.2 below following date set by the expiry of the time stipulated Authority for the return submission of tenders, either: the Authority shall (acting reasonably) determine review and assess the Compliant Tenders (if any) and shall notify DBFM Co of: the Contractor number of Compliant Tenders received by the Authority (if any); the highest Compliant Tender price; the Tender Costs; and its calculation of the Adjusted Highest Compliant Tender Price; or where the Termination Date occurred during the period commencing on the Commencement Date and ending on [the [Bidders to bid back] anniversary of] [Note: Bidders to delete if Works Period only derogation is bid back] the Services Commencement Date and the Authority has received no Compliant Tenders within the time stipulated for the return of such tenders then the following provisions of this paragraph 2 shall not apply to that termination and the provisions of paragraph 3 (No Retendering Procedure) shall apply. [Note: Bidders to delete whole paragraph if derogation not required]. If the Contractor DBFM Co refers a dispute relating to the Adjusted Highest Compliant Tender Price to the dispute resolution in accordance with Clause 56 (Dispute Resolution ProcedureResolution), the Authority shall irrespective of such dispute be entitled to enter into a New ContractAgreement. The Authority shall pay to the Contractor the Adjusted Highest Compliant Tender Price on or before the date falling [twenty (20)] Business Days after it has been determined under the Dispute Resolution Procedure and the Authority shall pay interest to the Contractor at the Senior Debt Rate on any amount of Adjusted Highest Compliant Tender Price which has been withheld from the date specified in paragraph 2.12 below until the date specified in this paragraph 2.11. For the avoidance of doubt, where there is an agreed amount and a disputed amount in respect of the Adjusted Highest Compliant Tender Price the Authority shall (where it is agreed that the Adjusted Highest Compliant Tender Price is a positive number) pay to the Contractor the agreed amount no later than the date specified in paragraph 2.12, with the disputed amount being dealt with be paid in accordance with Section 5 (General) of this paragraph 2.11Schedule Part 17 (Compensation on Termination). Subject to paragraphs 2.11 1.6 and 2.15, the Authority shall pay to the Contractor an amount equal to the Adjusted Highest Compliant Tender Price no later than the date falling [twenty 1.8 of Section 5 (20)] Business Days after the date of the New Contract. The discharge by the Authority of its payment obligation in paragraphs 2.11 and/or 2.12 above shall be in full and final settlement of all the Contractor’s claims and rights against the Authority for breaches and/or termination General) of this Contract and the Ancillary Documents whether under contract, delict, restitution or otherwise, save for any liability of the Authority which arose prior to the Termination Date that has not already been taken into account in determining the Adjusted Highest Compliant Tender Price. Subject to paragraphs 2.15 and 2.18Schedule Part 17 (Compensation on Termination), if the Authority has not paid an amount equal to the Adjusted Highest Compliant Tender Price to the Contractor DBFM Co on or before the date falling two (2) years after the Termination Date then the following provisions of this paragraph 2 3 shall not apply to that termination and the provisions of paragraph 3 4 (No Retendering Procedure) shall apply instead. If the Adjusted Highest Compliant Tender Price is zero (0) or a negative number then the Authority shall have no obligation to make any payment to the Contractor and with effect from the time that the Authority gives notice of that event to the Contractor, the Authority shall be released from all liability to the Contractor for breaches and/or termination of this Contract and any other Ancillary Document whether under contract, delict, restitution or otherwise save for any antecedent liability of the Authority which arose prior to the Termination Date (but not from the termination itself) that has not already been taken into account in determining the Adjusted Highest Compliant Tender Price. If the Adjusted Highest Compliant Tender Price is less than zero then an amount equal to the Adjusted Highest Compliant Tender Price shall be due and payable by the Contractor to the Authority on the date of the New Contract. The Authority may elect at any time prior to the receipt of a Compliant Tender Tender, to follow the no retendering procedure under paragraph 3 4 (No Retendering Procedure) by notifying the Contractor DBFM Co that this election has been made. If the Authority has received all bids from bidders under the Tender Process and has received a Compliant Tender but decides not to complete the Tender Process, it shall notify the Contractor of this decision and pay to the Contractor an amount equal to the Adjusted Highest Compliant Tender Price within [twenty (20)] Business Days of such notification.