PPP Contracts

SCHEDULE 5.13 - Conduct of Claims

1. The procedure in this Schedule shall apply where no alternative procedure has been provided in the Transaction Documents for the conduct of Claims and the Claim is not one that is covered by insurance.

2. In circumstances where one party becomes aware by whatever means of any Claim against itself, the other party or both parties, it shall provide to the other party or parties notice of that Claim, including: (a) a written summary of the Claim; and

(b) any supporting documentation,

within fourteen (14) Business Days of becoming aware of the Claim or, in the case of a Claim set out in paragraph 50.2(c) of the Contract, as soon as reasonably practicable.

3. Following receipt of written notice pursuant to paragraph 2 above, the parties shall discuss: (a) what immediate steps should be taken to resist or to settle the Claim; or

(b) which party is liable ( if any ) for the circumstances giving rise to the Claim, and, if liability is shared, what proportion of the liability each of the parties should assume.

4. If the parties are unable within fourteen (14) days of notification to reach agreement in relation to the matters set out in paragraph 3, then: (a) the notifying party pursuant to paragraph 2 above shall continue to have conduct of the Claim ( and where the Claim involves more than one party, then each party involved shall have conduct of its own defence to the Claim ); and

(b) the subject of paragraph 3(b) above shall be referred for resolution in accordance with the Dispute Resolution Agreement; or

(c) where the circumstances giving rise to the Claim are already the subject of a Dispute between the relevant parties prior to receipt of notice referred to in paragraph 2 above, those parties shall ensure that one of the matters determined in that Dispute is their respective liability in relation to the Claim. The parties shall ( regardless of the outcome of the Claim proceedings ) be bound as between each other by their agreement or the determination of liability made pursuant to the Dispute Resolution Agreement ( as the case may be ).

5. In the period prior to determination of the Conduct Party pursuant to paragraph 7, the party or parties with the conduct of the matter shall to the extent reasonable act in such a way so as not to prejudice the position of the other party against whom the Claim is made and shall comply with the requirements of paragraph 10, 11, 12 and 13 below as if it or they were the Conduct Party.

6. Where the parties determine that they do not have sufficient information in relation to the Claim, the parties may agree to delay their obligations referred to in paragraph 4 for an appropriate period to enable them to obtain sufficient information in relation to the Claim.

7. Subject to paragraphs 8 to 12, where: (a) one party acknowledges that it is wholly responsible for the circumstances giving rise to the Claim; or

(b) the parties agree that liability for the circumstances giving rise to the Claim should be apportioned between the parties; or

(c) liability is apportioned between the parties pursuant to a decision arising out of any Dispute referred to in paragraph 4 the party with the whole or greater portion of liability ( the Conduct Party ) shall assume conduct of the Claim ( except that in relation to Claims set out at paragraph 50.2(c) of the Contract, Infraco shall be Conduct Party ). Where liability is allocated equally, the parties shall decide, or if they are unable to do so, the tribunal who hears the Dispute pursuant to paragraph 4 shall determine which party shall be the Conduct Party on the basis of which party is most appropriate in terms of proximity to the subject matter of the Claim and to information relating to it.

8. Subject to paragraphs 9 to 12, the Conduct Party may take all reasonable steps ( including Remedial Action ) to defend, resist or settle the Claim.

9. In taking any steps under paragraph 8, the Conduct Party shall be under a duty to : (a) minimise interruption or disruption of or delay to the Services; and

(b) minimise the liabilities, losses, costs and expenses associated with the Claim.

10. Where liability is apportioned between the parties in accordance with paragraphs 3(b) or 4, the Conduct Party: (a) shall not carry out or enter into any agreement with any third party or Competent Authority for that party to carry out any Remedial Action on any Operational Property, the Acton Works Premises or the ERU Premises except as specifically required by law or with the written consent of the other party ( such consent not to be unreasonably withheld or delayed ); and

(b) shall not settle or compromise any Claim or make any admission of liability without the written consent of the other party ( such consent not to be unreasonably withheld or delayed ).

11. The Conduct Party shall provide to the other party copies of any relevant advice, statements, opinions, correspondence, independent assessments and any other relevant documentation produced as a result of any steps taken under paragraph 8.

12. Subject to any obligations contained in clause 48 ( Disclosure of Information ) of the Contract, neither the Conduct Party nor the other party shall disclose to any third party or a Competent Authority any information arising from or relating to any Claim except as specifically required by Law or where the Conduct Party or the other party has consented in writing to the disclosure.

13. Where the Conduct Party assumes conduct of the Claim under paragraph 7 above, the other party shall, subject to payment by the Conduct Party of all the other party's reasonable costs: (a) supply such information ( including copies of relevant data, advice, statements, opinions, correspondence and other relevant documents ) as the Conduct Party reasonably requests; and

(b) give such co-operation as may reasonably be requested by the Conduct Party ( including, without limitation, meeting with and reviewing matters with the Conduct Party ).

14. In the event that liability for claims is apportioned between the parties in accordance with paragraphs 3 or 4 above, a party's costs recoverable under paragraph 13 shall be limited to the costs apportioned pro rata to liability.

PPP Contracts

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