Transport for LondonPPP Contracts
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SCHEDULE 5.19 - Insurance |
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Employers' Liability Insurance |
| 1.1 Infraco may take out and maintain employers' liability insurance cover for secondees to Infraco from Infraco's Initial Shareholders and/or Affiliates of such Initial Shareholders, in each case to the extent of their interest in the PPP, provided that LUL's prior consent ( such consent not to be unreasonably withheld or delayed ) is obtained ( including in relation to identifying the insured parties ). |
| 1.2 Infraco shall procure that any contract entered into by it with any contractor or sub-contractor shall contain provisions which require the contractor or sub-contractor to take out employers' liability insurance to comply with Employers' Liability ( Compulsory Insurance ) Act 1969. |
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Contract Works Insurance |
| 2.1 Provided such insurance is available in the insurance market at commercially acceptable terms, Infraco shall take out and maintain, or cause to be taken out and maintained, from the Transfer Date ( subject to paragraph 2.4 ) and throughout the remaining duration of the Contract, insurances covering the risks and liabilities arising out of contract works on the basis of not less than standard market terms, conditions and exclusions ( the Contract Works Insurance ). The Contract Works Insurance shall cover asset damage or loss, third party liability ( including product liability and public liability ) and professional indemnity as appropriate. |
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2.2 Infraco shall ensure that: (b) the third party liability section of the Contract Works Insurance shall: (ii) cover ( but shall not exceed ) the first £25,000,000 arising from any one occurrence or series of occurrences arising out of any one source or original cause ( and in the aggregate for product liability and pollution ). |
| 2.3 Subject to clause 7.14 of the Insurance Agreement, and unless the parties to the Contract agree to put in place alternative insurance arrangements or Third Party Liability Insurance is no longer available at commercially acceptable terms or is no longer available in the insurance market, LUL shall take out and maintain throughout the duration of the Contract, Third Party Liability Insurance to cover Losses suffered or incurred by Infraco and/or any of the other insured parties under the third party liability section of the Contract Works Insurance as a result of claims made by third parties to the extent that such claims exceed the first £25,000,000 ( as detailed at paragraph 2.2(b)(ii) above ) and to the extent that the amount of the claims which exceed the said first £25,000,000 would have been covered under the third party liability section of the Contract Works Insurance had such third party liability cover been taken out and maintained in excess of the first £25,000,000. |
| 2.4 In the event that the Third Party Liability Insurance is (i) unavailable in the insurance market or is no longer available at commercially acceptable terms or, (ii) is available in the insurance market but is not purchased by LUL, then LUL shall be responsible for, and shall indemnify Infraco ( on its own behalf and/or as agent for other relevant insureds under the third party liability section of the Contract Works Insurance ) from and against, Losses suffered or incurred by Infraco and/or any of the other insured parties under the third party liability section of the Contract Works Insurance as a result of claims made by third parties to the extent that such claims exceed the first £25,000,000 ( as detailed at paragraph 2.2(b)(ii) above ) and to the extent that the amount of the claims which exceed the said first £25,000,000 would have been covered under the third party liability section of the Contract Works Insurance had such third liability cover been taken out and maintained in excess of the first £25,000,000. For the avoidance of doubt, this paragraph 2.4 is without limitation to LUL's obligation to take out and maintain Third Party Liability Insurance in accordance with clause 3.1 of Insurance Agreement and paragraph 2.3. |
| 2.5 Infraco shall ensure that LUL's prior consent ( such consent not to be unreasonably withheld or delayed ) to the Contract Works Insurance is obtained. |
| 2.6 LUL shall not be responsible for recovering any deductible from any sub-contractors or other insured parties ( other than LUL Parties, and direct or indirect contractors or sub-contractors in each case acting on behalf of LUL ) under the Contract Works Insurance. |
| 2.7 In the event that the Contract Works Insurance required to be purchased by Infraco (i) is available in the insurance market at commercially acceptable terms but is not purchased by Infraco or (ii) is not available in the insurance market to Infraco and this is due to claims caused by Infraco arising from events within the control of Infraco ( including claims attributable to its direct or indirect contractors or sub-contractors ), and LUL Parties and/or Infraco Parties of another Infraco that would have been covered under the Contract Works Insurance incur any Losses that would have been covered under the Contract Works Insurance if such insurance (a) had been available in the insurance market at commercially acceptable terms and purchased by Infraco or (b) would have been available in the insurance market to Infraco but for such claims caused by Infraco ( as above ), then Infraco shall indemnify LUL Parties and such Infraco Parties of another Infraco for such Losses suffered or incurred. The amount payable by Infraco under this indemnity shall not exceed the amount of the proceeds of a claim under the Contract Works Insurance had it been so available or purchased. |
| 2.8 LUL shall ( and Infraco and LUL shall each use its reasonable endeavours to procure that each of the other insured parties that would have been covered under the Contract Works Insurance had such Contract Works Insurance been taken out shall ), so far as reasonably practicable, mitigate the Losses incurred by it ( or by such other insured parties as the case may be ) which are the subject of the indemnity in paragraph 2.7. Infraco's liability to indemnify LUL and/or such other insured parties as provided in paragraph 2.7 shall be reduced proportionately to the extent that LUL and/or such other insured parties have failed to mitigate such Losses. |
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Review |
| 3.1 Subject to paragraph 3.2, any limits and deductibles in respect of Contract Works Insurance shall be maintained throughout the duration of the Contract unless otherwise agreed between LUL and Infraco or unless such insurance is no longer available on commercially acceptable terms. |
| 3.2 On every Review Date LUL and Infraco shall review and determine the cover to be provided under, and the limits of, the Contract Works Insurance with effect from the next renewal date after such Review Date. The limits and/or deductibles may be increased or decreased more frequently if agreed by LUL and Infraco ( each acting reasonably ). If LUL and Infraco fail to so agree, such failure to agree shall not constitute a Dispute and the Dispute Resolution Agreement shall not apply. |
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Contracts |
| 4.1 Subject to paragraph 4.2 Infraco shall procure that any Key Sub-Contract ( other than any Key Sub-Contract relating to risks and liabilities to the extent covered by the Contract Works Insurance but including maintenance, cleaning and other service contracts which are Key Sub-Contracts ) entered into by Infraco shall contain provisions which require the Key Sub-Contractor to effect and maintain insurance under the Key Sub-Contract as would be effected and maintained by Infraco exercising Good Industry Practice in circumstances where otherwise Infraco would be paying for and arranging such insurance. |
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4.2 For the purposes of paragraph 4.1: (b) Key Sub-Contract shall not include any agreement between Infraco and Bechtel Limited ( ( company registration number 00506133 ) whose registered office is at 245 Hammersmith Road, London W6 8DP ) and/or Halcrow Group Limited ( ( company registration number 03415971 ) whose registered office is at Vineyard House, 44 Brook Green, London W6 7BY ) and/or Semaly S.A. ( a company registered in France before the Tribunal of Commerce of Lyon with company registration number 968 502 559 and whose registered office is at 25 Cours Emile Zola, 69100 Villeurbanne, France ) and/or Amey LUL 2 Limited ( ( company registration number 4602504 ) whose registered office is at Frogmore Hall, Frogmore Park, Watton at Stone, Hertford, Hertfordshire SG14 3RU ) and/or Jarvis LUL Limited ( ( company registration number 04148706 ) whose registered office is at Frogmore Hall, Frogmore Park, Watton at Stone, Hertford, Hertfordshire SG14 3RU ) ( or such other party as may be agreed between Infraco and LUL, acting reasonably, from time to time ) relating to the loan of personnel to Infraco. |
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Third Party Liability Insurance |
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5.1 LUL acknowledges that in exercising its rights and performing its obligations under the Transaction Documents: (b) that in order to maintain and renew such licence from time to time, Infraco is required to maintain sufficient and appropriate third party liability insurance as required by Law ( including the requirements of the Rail Regulator and/or the Strategic Rail Authority pursuant to the Railways Act 1993 ( or their respective successor organisations ) ). |
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5.2 LUL shall ensure that the Third Party Liability Insurance shall at all times meet the requirements in paragraph 5.1(b). |
