Contractor rules

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SCIIEDULE PART I

THIS IS THE SCHEDULE REFERRED TO IN TIIE FORI,GOING AGREEMENT BETWEEN \'TRIDOR (GLASGOW) LIMITED AND INTERSER\'E CONSTRUCTION

LIMITED SCHEDULE PART

1. 1.1

I:

DEFINITIONS

Definitions Except where the context otherwise requires capitalised terms shall have the followìng meanings:

means the Local Government in Scotland Act 2003;

"Abandon"

to cany out any Works contemplated by the Construction Programme at the Site for twenty (20) consecutive Business Days or during sixty (60) days means not

(whether consecutive or not) in any Contract Year;

"Acceptance

Date"

Longstop

Test Certifìcate" "Acceptance

"Acceptance

Tests"

"Accepted"

means such date that is twelve (12) months after the Planned Selice Commencement Date; means a certificate issued by the Independent Certifier that the Acceptance Tests have been satisfied; means the Tests so described in Schedule PaIt I

I

(Z¿sls);

has the meaning given to it in the Project Agreement;

"ACF

Facility"

mears the completed advanced conversion facility constructed pußuant to the ACF Vr'orks;

"ACF

Sub-Contract"

means the contract entered into or to be entered into on or about the date hereof among the Construction Sub-

to

be

Contractor, the ACF Sub-Contractor and Energos A.S. (Company number 986983163) whose registered office is at Kvenildmyra 5,7012 Heimdal, Norway for the carrying out of the ACF works;

"ACF

Sub-Contractor"

"ACF Escrow

Sub-Contractor

Agreemenl"

means Energos Limited (Company Number 03109022) whose registered address is at Ener-G House, Daniel Adamson Road, Salford, Manchester M50 lDT; means all or any (as the context so requires) of:

(a) the ACF

Sub-contractor Krowsrey Escrow

Agreement;

(b) the ACF Sub-Contractor

Manufacturing Escrow

Agreement; and

(c)

the ACF Sub-Contractor O&M Escrow Agreement.

SCIIEDULE PART

"ACF

tÏe

1

Knowsley Design Drawings, the Sarpsborg

Sub-Contractor Design Drawings"

means

"ACF

means an agreement of even date with this Contract entered

Sub-Contractor

Design Drawings and the Glasgow Design Materials;

Design Escrow Agreernent"

into by the Construction Sub-Contractor, the ACF SubContractor and the Escrow Agent regulating the delivery of the ACF Sub-Contractor Design Drawings to the Escrow Agent and, on the occunence of a Release Event (as defined therein), the subsequent release thereof to the Construction Sub-Contractor (or to the Contractor following step-in under the collateral warranty provided by the ACF Sub-Contractor to the Contractor);

"ACF Sub-Contractor Manufacturing Drawings"

means:

(a)

software source code including procedures for building, compiling and uninstalling the software, including names, version numbers and licence information;

(b)

detailed engineering drawings / manufacturing drawings for the ACF Sub-Contractor's intellectual propefty packages (boiler, gasifier, control system); and

(c)

detailed specifications for the ACF Sub-Contractor's intellectual property packages (boiler, gasifier, control system),

but excluding:

"ACF Sub-Contractor

(D

technicaldescriptions;

(iD

P&lDs for the plant;

(iiÐ

PFD for the plant;

(iv)

layout drawings for the plant;

(v)

valve and instrument lists:

(vi)

single line diagrams:

(vii)

foundationloadingdrawings;

(viii)

not used;

(ix)

equipment list; and

(x)

any other information which the Construction SubContractor is required to provide as Reviewable Design Data in accordance with the Contract;

means an agreement of even date with this Contract entered

SCIIEDULE PART

Manufacturing Escrow Agreement"

"ACF Sub-Contractor O&M Drawings"

into by the Construction Sub-Contractor, the ACF

1

Sub-

Contractor and the Escrow Agent regulating the delivery of the ACF Sub-Contractor Manufacturing Drawings and the ACF Sub-Contractor Source Code to the Escrow Agent and, on the occurrence of a Release Event (as defined therein), the subsequent release thereof to the Construction SubContractor (or to the Contractor following step-in under the collateral warranty provided by the ACF Sub-Contractor to the Contractor);

means

the

commercially sensitive engineering

and

manufacturing drawings and technical infomation and software source code created or developed by the ACF SubContractor for the purposes of its works in relation to the boiler, the gasifier and the control system which would allow a competent person to maintain, dismantle, reassemble, adjust, repair and operate the ACF Facility including the:

(a)

detailed engineering drawings and manufacturing drawings for boiler, the gasifier and the control system; and

(b)

detailed specifications for boiler, the gasifier and the control system

but excluding from that any drawings and technical infomation included in the Operation and Maintenance Manuals or the As Built Drawings;

"ACF Sub-Contractor O&M Escrow Agreement"

means an agreement of even date with this Contract entered into by the Contractor, the ACF Sub-Contractor and the Escrow Agent regulating the delivery of the ACF SubContractor O&M Drawings and manuals and the ACF SubContractor Source Code to the Escro\¡/ Agent and, on the

occnrence

of a

Release Event (as defined therein), the

subsequent release thereofto the Contractor;

"ACF Sub-Contractor Sensitive Material"

means the ACF Sub-Contractor Design Drawings, the ACF Sub-Contractor Manufacturing Drawings, the ACF SubContractor O&M Drawings and the ACF Sub-Contractor Source Code:

"ACF Sub-Contractor

means the source code in the control system

Source Code"

Facility;

"ACF Trade Contract Works"

has the meaning given to

"ACF Works"

means the works

for the ACF

it in clarse 4.2.2;

to procure, manufacture and supply the mechanical and electrical equipment required for the construction of the ACF Facilify and the installation, commissioning and testing of such equipment in order to complete the ACF Facility;

SCHEDULE PART I

"ACF Works SubContrâctor"

means any sub-contractor appointed by the Construction Sub-Contractor in respect of the ACF Works other than the

ACF Sub-Contractor; it in the Project Agreerrent;

"Ad Hoc Waste"

has the meaning given to

"Adjoining Owners"

means all owners and occupiers of Adjoining Propeúy;

"Adjoining Property"

means any

la¡d and/or propeÉy adjoining or in

the part neighbourhood ofthe Site(s) and each and every thereof

including

all

Conduits, roads, footpaths, walls, fences,

buildings and other erections and all service media and other apparatus on, under or within such land and/or property;

"Adjudicator"

has the meaning given to it in paragraph 4, of Schedule Part 72 (Dispute Resolution Procedure);

"Advance Payment"

means the advance payments identified as such Part 4 (Payment Milestones);

"Adverse Rights"

means all (if any) rights of light and air and other rights, wayleaves and servitudes whatever (including any rights and ser¡¡itudes in respect of Conduits) and all (if any) other restrictions enjoyed over the Site by any Adjoining Property or Adjoining Owner;

"Affected Party"

has the meaning given

Schedule

to it in the definition of

Majeure Event in this Schedule Part

"Affiliate"

in

Force

| (Definitions);

means in relation to any person, any holding company or subsidiary of that person or any subsidiary of such holding

company, and "holding company" and "subsidiary" shall have the meaning given to them in Section 1159 of the Companies Act, save that for the purposes of determining whether one entity is an Affiliate of another any transfer of shares by way of security or to a nominee of the transferor shall be disregarded;

"Amended Reinstatement

has the meaning given to

it in clause 56-3.3 (Reinstatement);

Outline" "Ancillary Documents"

means:

(a)

the Pre-Processing Sub-Contract;

(b)

(Ð

prior to an Option B Election, the ACF Sub-Contract; or

(ii)

following an Option B Election, the ACF Sub-Contract and tle Trade Contracts;

SCHEDULE PART

"Ancillary Rights"

1

means:

(a)

a non-exclusive licence to enter and remain on those parts of the Sites (other than the Facility Site) that the Construction Sub-Contractor and/or any Construction Sub-Contractor Related Parly requires access to in order to

carry out the Works or perform its obligations in relation to defects in the Enabling Works;

(b)

a non-exclusive licence to enter and remain upon the Facility Site (subject to any rights that the Contractor may have under this Contract ot t¡at the Authority may have under the Project Agreement or such access by the Authority as may be necessary in order to allow the Authority to comply with its statutory obligations and in each case provided always that such licence does not confer any tenancy or other like rights on the

Construction Sub-Contractor or

any

Construction Sub-Contractor Related Party);

(c)

such rights of access to and egress from the Site(s) as are necessary for the Construction Sub-Contractor and/or any Construction SubContractor Related Parly to perform their obligations and exercise their rights under this Contract and in particular for the putposes of

implementing

the Works

including

those

hatched red and hatched green and highlighted yellow on the Site Plans;

(d)

rights offree and uninterrupted passage over and

within and running of water, soil,

gas,

electricity, telephone and other selices; and

(e)

the righl where necessary to inspect

repair

maintain replace, lay, install, enlarge or renew if lequired the Conduits and the right to connect

into the Conduits and to construct such new Conduits as may from time to time be necessary to serue the Site(s).

provided that viithout prejudice to Clause 10.5.1 the rights ale granted insofar as the Contractor and/or the Authority is capable of granting them and such rights are subject to the Disclosed Title Matters;

to it in

"Appropriate Limit"

has the meaning given Inlormation):

"Approved Surety"

means Liberty Mutual Insurance Europe Limited, a company

clause 85.7 (Freedom oJ

incorporated under the Companies Acts (company number 1088268) and having its registered office at 3rd Floor, Two

SCHEDI}I,E PART

1

Minster Court, Mincing Lane, London EC3R 7YE;

a

financial strength

"Approved Surety Credit Rating"

means

"Arbitrator"

has the meaning given

or

equivalent credit rating

assigned by Standard & Poor's Cotporation being not less than A- or equivalent rating by another credit agency;

to it in

paragraph 14

of

Schedule

Part 22 (Dispute Resolution Procedure);

"As Built Drawings"

means drawings, technical information, models, operation and maintenance manuals to encompass the method of consûïction, manufacture, operation and maintenance of each element of the Faciliq' in sufficient detail to allow a competent person to understand all material elements of the

construction of the Facility and to maintain, dismantle, reassemble, adjust and operate all plant and equipment forming the same; "Assets"

all

to

enable the Authority or a successor contrâctor to own, operate and maintain any land or building on the Facility Site pursuant to the Project Agreement including: means

(a)

assets and rights

any land or buildings on the Facility

Site

(including the Facility);

(b)

any plant, machinery or equipment;

(c)

any books and records (including operating and maintenance manuals, the Operating Manual,

health and safety manuals,

documents

maintained in accordance with the Site Waste Management Plans Regulations 2008, as built drawings and other know how); (d)

any spare parts, tools and other assets (together with any warranties in respect of assets being

transfered); (e)

not used

(Ð

not used;

(e)

not used

(h)

where termination occurs following termination Project Agreement pursuant to paragraph 3.5 of Schedule Part 26 (Planning) tliereof, all documents, letters and instructions and enclosures to and opinions of Leading

of the

Counsel or the Construction Sub-Contractor's consultants relating to any Planning Application, Environmental Permit, Planning Permission, or

SCHEDULE PART

1

Proceedings,

but excluding any assets and rights in respect of which the Authority is ñrtl legal and beneficial owner; "Associated Company"

means in respect of a relevant company, a company which is a subsidiary, a Holding Company or a company that is a

subsidiary ofthe ultimate Holding Company of that relevant company, and in the case of tÌìe Contractor shall include each of the Sha¡eholders sav€ that for the purposes of determining whether one entit¡r is an Associated Company of another any transfer of shares by way of security or to a nominee ofthe transferor shall be disregarded;

it in the Project Agreement;

"Authority Change"

has the meaning given to

"Authority Materials"

has the meaning given to of Te r m in at i o n /Exp i ry);

'rAuthority Project Intellectual PropeÉy"

means all Intellectual Property Rights owned by the Authority and subsisting in any Disclosed Data, the Project

it in clause

87

.11.2 (Consequences

Data, the and/or any other materials, information documents data and/or know how, provided to or made available by the Authority to any Contractor Related Party at any time during the Contract Period;

'rAuthority PropeÉy"

means any assets or property belonging to the Authority or for which it is responsible;

"Authority Related Paúy"

means any ofthe following:

(a)

an officer, servant, employee or agent of the Authority acting in that capacity; or

(b)

any contractor or sub-contractor ofthe Authority of any tier and their directors, officers, servants, employees or agents acting in that capacity;

but excluding in any case the Contractor and any Contractor Related Parties;

the

representative appointed by the Authority ofthe Project Agreement;

"Authority's

means

Representative"

pursuant to clause 9.1

"Availability Damages"

means the damages calculated in accordance with Schedule Paú39 (Delay, Perþrmance and Availability Damages);

"Availability Guarantees"

means those guarantees identified as such

Schedule

Paft 45

Guarantees);

(Performance

in part 2 of

and

Avøilability

SCHEDULE PART

1

rrAvailability TestÍ

has

"Availability Test Certificate"

means a certificate issued by the Contractor that the Availability Test has been satisfied;

"Basic Design Proposals"

means the basic design set out or referred to in Schedule Part

tìe meaning given to it in Schedule Part 11 (Zesls);

28 (Basic Design Proposal);

"Beneficiary"

has the meaning given Claims);

"Business Day"

means a day (other than

banks ale open

for

to it in clause63.l (Conduct

oJ

a Saturday or Sunday) on which domestic business in the City of

Glasgow;

"Capital Expenditure"

to be treated as capital expenditure in accordance with generally accepted accounting principles in the United Kingdom from time to means any expenditure which falls

time;

"Carbon Management Plan"

means the carbon management plan to be established and maintained in accordance with Schedule Part 2 (Contractor's Requirements)t

"CDM Co-ordinator"

means Jacobs Engineering U.K. Limited (Company Number 02594504) whose registered address is at 1180 Eskdale Road, Winnersh, Wokinghan.r, Belkshire RG4l 5TU;

"CDM Regulations"

means

the

Constmction (Design and Management)

Regulations 2007; " Certilicatio n Requirements"

means the requirements which must be satisfied for a contract to be a cerlified contract for the purposes of the Local Govemment (Contracts) Act 1997;

"Change in Costs"

means

"Change in Law"

means the coming into effecf afïer 27tì

in respect of any Relevant Event, the effect of that Relevant Event (whether positive or negative) upon tlie actual or anticipated costs, losses or liabilìties of the Construction Sub-Contractor

(a)

April 2012 of:

Legislation, other than any Legislation which on the Effective Date has been published: (Ð

in a draft Bill as part of a Govemment Departmental Consultation Paper;

(ii)

in a Bill;

(iii)

in a draft statutory instrument; or

SCI{EDI ]I,E PART

(iv)

"Change in Project Costs"

1

as a proposal in the Official Joumal of the European Communities;

(b)

any Guidance; or

(c)

any applicable judgment of a relevant court law which changes a binding precedent;

has the mearing given

to it in

Part

of

1 (Defnitions) of

Schedule Part 21 (Change Protocol)t

"Clinical Waste"

has the meaning given to it in Regulation 1 (2) of the Controlled Waste Regulations 1 992;

"Collateral Warranty"

means a collateral warranty in the relevant form as set out in Schedule Part 25 (Forms ofCollateral lTarranty);

"Commercially Available

has the meaning given

Software Package"

Data);

"

Comrnercially Sensitive

Information"

to it in

clause 87.6.2 (Computer

means t¡e sub set of Confidential lnformation listed in column I of Part 1 and column I of Part 2 of Schedule Part 23 (Commercially Sensitive Infonnaîion) ín each case for the

period specified

in

column

2 of

Parts

1

and

2

of

Schedule Parl 23 (Commercially Sensitive Information);

"Commissioning Period"

means the period between the Readiness Date and the Serwice Commencement Date;

"Commissioning PIan"

means the detailed plan developed Commissioning Requirements;

"Commissioning Requirements"

means the requirements

"Community Benefits"

means

in accordance with the

commissioning of the Facility contained in SchedulePart 2 (Contractor's Requirements) and Schedule Part 1l (Zesls), as the same may be amended in accordance with the Contract;

for the

the maximum economic and social benefit from

general capital investments and wider procurement activity; "

Communify Benefits Plan"

means the Community Benefits Plan developed by the Construction Sub-Contractor pursua¡t to Section 7.1 (Recruitment rmd Traîning), Section 7.2 (Small to Medium Enterprises and Social Enterprises) and Section 7.3 (Education and Awareness) in the Construction SubContractor's Proposals;

"Community Benefits Requirements"

means the requirements in relation

set out in

Section 1 of

Requìrements);

"Companies Act"

to Community Benefits

Schedule Part

means the Companies Act 2006;

2

(Contraclor's

SCIÌEDULE PART

"Compensation Event"

1

means in respect of the period from the Effective Date until the Service Commencement Date:

(a)

a breach by the Contractor

of any of its obligations

under this Contract;

(b) (c) (d)

the discovery of Unknown Historic Contamination, as defined in Schedule Part 34 (Environmentaï1, on the Sites (or any of them);

a delay in the completion of the Grid Connection

'Works;

the occunence of Protestor Action provided the Construction Sub-Contractor has complied with its obligation pursuant to clause 42 (Proîeslor Action);

(e)

the occurence of any Undisclosed Third Party Right; and/or

(Ð

any event which is stated in this Contract to be a Compensation Event;

"Conduits"

means all pipes, sewers, drains, mains, ducts, conduits, gutters, watercourses, wires, cables, meters, switches, channels, flues and all other conducting media appliances and apparatus and includes any fixtures, louvers, cowls and any other ancillary apparatus;

"Confidential Information"

means:

(a)

informatìon that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) and may include information whose disclosure would or would be likely to prejudice the commercial interests of any person, trade secrets, lntellectual Property Rights, know-how, of either Party and all personal data and sensitive personal data within tïe rreaning of the Data Protection Act 1998: and

(b)

Commercially Sensitive Inl-ormation:

SC}IEDULE PART

"Consents"

1

means all permissions, consents, approvals, certificates, permits, licenses and authorisations of a Relevant Authority required for the performance of any ofthe Construction SubContractor's obligations under this Contract including for the avoidance ofdoubt: (a)

all Environmental Permits;

(b)

all Planning Permissions;

(c)

all Planning Obligations; and

(d)

all Road Consents,

but excluding the Contractor's Necessary Consents;

"Consents

List"

has the meaning given to

it in clause 12.5.1 (Consents);

"Construction Programme"

means the programme for the carying out of the Works as contained in Schedule Part 8 (Construct¡on Programme) as amended from time to time in accordance with the provisions of this Contract;

"Construction Sub-Contrâct Dispute"

has the meaning given to

"Construction SubContrâctor Change"

has the meaning set out Protocol);

"Construction SubContrâctor Change Notice"

has the meaning given to ProtocoD;

"Construction SubContractor Default"

means any one or more

22 (Dispute

(a)

Res olution

it in paragraph

18

of Schedule Part

Procedure);

in

Schedule

it in

Part 21 (Change

Schedule Part

21 (Change

ofthe following events:

of its obligations under this Agreement, which a breach by the Construction Sub-Contractor

materially and adversely affects the carrying out of the Works or the performance of the Services and in relation to which the Contractor has complied with its obligations pursuant to clause 67.3; .

(b)

not used

(c)

an Insolvency Event occurs in respect of the Constmction Sub-Contractor or

(d)

a

breach

of

(e)

not used;

Guarantor;

81.2 (Restriction -Contractor) occurs;

clause

C onstruclion Sub

tle

on

the

SCHEDULE PART I

(Ð

the Construction Sub-Contractor Abandons the Works at any time;

G)

not used;

(h)

failure to achieve the Works Commencement Date by such date as is one (l) month after the Planned Works Commencement Date;

(D

the Readiness Test Certificate for the Facility has not been issued by the Readiness Longstop Date;

ú)

the Acceptance Test CeÍificate for the Facilþ has not been issued by the Acceptance Longstop

Date;

(k)

not used

(l)

not used;

(m)

not used;

(n)

not used;

(o)

not used;

(p)

subject to clause 57 (Unînsurability)" a breach

by the Construction

Sub-Contractor

of

its

obligations to take out and maintain any of the insurance policies required of it pursuant to this Contract;

(q)

not used;

(r)

a failure by the Construction Sub-Contractor to make payment of any amount of money exceeding f500,000, which amount is due and

payable by the Construction Sub-Contractor under this Contract, within thiúy (30) Business Days ofservice of a notice by the Contractor; G)

the Contractor becoming entitled to terminate in accordance with clause 20.5.7

(t)

reaching: (D

the Maximum Delay Damages; or

(iÐ 80% (eighty percent) of the Liability Cap unless the Liability Cap has been refreshed in accordance with clause 5l C.3 (Refresh of the Liability Cap); or

SCI{EDULE PART

(iii) where the Liability

1

Cap has been refreshed

of the Liability Cap), a sum equal to 800/o (eighty percent) of the Refreshed Liability in accordance with clause 51C.3 (Refresh

Cap has been reached at any time;

(u)

(v)

any breach of the Construction Sub-Contractor which directly causes a Contractor Default under the Project Agreement; or a failure by the Constmction Sub-Contractor to or replace the Parent Company Guarantee, the Performance Bond, the Adva¡ce Payment Bond and/or any Retention Bond (if provided by the Construction Sub-Contractor in

provide

accordance with clause 994;

"Construction SubContractor Insurances"

"Construction Sub"Contractor Materials"

(a)

all

insurance which the Construction Sub-

Contractor is obliged by Law to carry;

(b)

the insurances refened to in Part 2 of Schedule Part 10 (Required Insurances);

(c)

the Professional Indemnity Insurance policy to be maintained pursuant to clause 55.13;

(d)

not used; and

(e)

material damage insurance in respect of its own temporary buildings, plant and equipment;

all or any programmes, software, code, databases, data materials, works (whether Iiterary, artistic or otherwise),

means

know how and/or information other than any Project Data which are used from time to time by the Construction SubContractor and/or any Construction Sub-Contractor Related Party or are otherwise relevant to the maintenance, management, provision, replacement, carrying out and operation ofthe Facility and/or the Services;

"Construction SubContractor Related Party"

means

the

Construction Sub-Contractor's agents and Sub-Contractors a¡d its or their sub-contractors of any tier and its or their directors, officers, employees and workmen in relation to the Project and any person on or at the Site at the express or implied invitation of the Construction SubContractor (other than the Contractor or any Contractor Related Party);

"Construction SubContractor's Proposals"

means the proposals of the Construction Sub-Contractor to deliver the Project to satisfy the Contractor's Requirements, as set out in the document entitled "Construction Sub-

Contractor's Proposals" and dated 20 Júy 2012 which is contained in two (2) folders and one (l) compact disc, and is annexed as relative hereto, and any modifications to such

SCIIEDULE PART

1

document in accordance with this Contract;

I'Construction SubContractor's Representative"

means the person to be appointed by the Construction Sub-

'rConstruction Works Programme"

means the detailed programme for the works contained in Parl 1.5 of the Construction Sub-Contractor's Proposals as amended from time to time in accordance with the provisions of this Contract;

"Consultation"

has the meaning given to it in paragraph 2 22 (Dispute Resolution Procedure);

"Contamination"

has the meaning given

Contractor pnrsuant to clause 9.2 (Representatives of the C ons truction Sub -C onf r actor):,

to it in

of Schedule Part

Schedule Paú 34

(Environmental);

"Contrâct"

of clauses 1 (Defnitions and 102 (Governing Law and Jurisdiction) inclusive together with Schedule Parts 1 (Definitions) to 46 (Critical Spares Zlsl) inclusive and the Construction Sub-

means this contract comprising

Interprctation)

fo

Contractor's Proposals;

"Contrâct Month"

means each successive calendar Month in a Contract Year;

"Contract Period "

means the period flom and including the Effective Date to the Expiry Date, or if earlier, the Termination Date;

"Contract Sum"

means the sum of f,144,843,913 (one hundred and forty four

rrillion eight hundred and forty three thousand nine hundred and thirteen) as adjusted from time to time in accordance with this Contract,

"Contract Waste"

has the meaning given to

"Contract Year"

means a period of twelve (12) months commencing on 1 April, provided that:

it in the Project Agreement;

(a)

the first Contract Year shall be the period commencing on the Effective Date and ending on the day immediately following 3 1 March; and

(b)

the frnal Contract Year shall be the period commencing on I April immediately preceding the last day ofthe Contract Period and ending on

that day;

"Contractor Change"

has the rneaning given to Protocol);

"Contractor Change Notice"

has the meaning given

Protocol);

it in Schedule

to it in

Schedule

Part 21 (Change

Parl 27 (Change

SCTIEDULE PART

"Contrâctor Defâult"

1

means one ofthe following events:

(a)

a failure by the Contractor to make payment

of

any amount of money exceeding f5,000,000 that is due and payable by the Contractor under this Contract within 5 days of the final date for its payment; or

(b)

a breach by the Contractor of its obligations under this Contract which substantially frustrates

or

renders

it

impossible for the Construction

Sub-Contractor to perform its obligations under this Contract for a continuous period of rwo (2)

Months;

(c)

an Insolvency Event occurs in respect of the Contractor and/or the Payment Guarantor; or

(d)

the Contractor fails to replace its Guarantee in accordance (Payment Security)

with

Payment

clause 99A.6

in

accordance with clause 66 for Contractor Default):

"Contractor Default Termination Sum"

means the amount payable

"Contractor Insurances"

means the insurances referred 1 0 (Required Insurmces);

"Contractor Pâyment Guarântee"

means the payment guarantee refered to in clause 994, the form which is set out in Schedule Part 33 (Connaaor's Pa¡tment Guaranîee), executed by the Payment Guarântor;

"Contractor PropeÉy"

means any assets or property belonging to the Contractor or for which it is responsible;

"Contractor Related Party"

means any ofthe following:

(Compensation on Tetminafion

to in Part

I of Schedule Part

(a)

an officer, servant, employee or agent of the Contractor acting in that capacity;

(b)

any contractor or sub-contracto¡ of the Contractor of any tier and their directors, officers, servants, employees or agents acting in that capacity;

but excluding in any case the Construction Sub-Contractor and any Construction Sub-Contractor Related Parties;

"Contractor's Necessary Consents"

means the Planning Permission and the PPC Permit;

l

l

!

SCI{EDULE PART

1

"Contractor's Representative"

means the representative appoìnted by the Contractor pursuart to clause 9.1 (Representative ofthe Contractor);

"Contractor's Requirements"

means the requirements of the Contractor in relation to the Project, as set out in the document entitled "Contractor's Requirements" and dated 20 July 2012 which is contained in one (l) folder and one (l) compact disc, and is annexed as relative hereto, and any modifications to such document in accordance with this Contract;

"Conviction"

means, other than in relation to rninor road-traffic offences, any previous prosecutions, convictions cautions and binding

over orders lexcluding âny spent conviclions as contemplated by section l(1) of tlìe Rehabilitation of Offenders Ac!1,974 by virtue ofthe exemptions specified in Part II of schedule 1 of the Rehabilitation of Offenders Act (Exceptions) Order 1975 and the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order

2003 (Scottish

SI

20031231)

or any replacement

or

amendment to that Order);

"Deductions"

has the meaning given

"Defect"

meãìs any defect in any Facility, the Works or any part of them, or anlhing installed in them attributable to the Consûlction Sub-Contractor's breach of its obligations

to it under the Project Agreement;

under the Contract;

"Defects Liabilitv Period"

means a period of twelve (12) months from the Service Commencement Date and, in respect of any part of the Works in which a Defect arises, a fufther period of twelve (12) months commencing upon the date of completion ofthe rectification works, subject to a maximum period of thiúy six (36) months from the Service Commencement Date.

"Delay Damages"

means liquidated and ascertained delay damages in the amounts set out in Schedule Part 39 (Delay, Performance and Av ail ab i lity Damage s);

"Delivery PIans"

means the Works Delivery Plan and the Services Delivery

Pla¡;

"Delivery Point"

means the point of discharge of Contract Waste as defined within the relevant Delivery Plans;

"Design Data"

means all drawings, reports, documents, plans, software, formulae, calculations and other data relating to the design,

construction, commissioning, testing or operation of the Project in each case that is provided by or on behalf of the Construction Sub-Contractor and/or its Sub-Contractors in connection with the provision of the Works or the

performance

of the

Construction

obligations under this Contract;

Sub-Contractor's

SCTIEDULE PART

1

"Designers"

means Fairhurst, whose address is al. 225 Bath Street, Glasgow GZ 4GZ and ADF Architects, whose address is at 23 Blyhswood Square, Glasgow G2 4BG, or such other designers as may be appointed in accordance with the provisions of this Contract;

"Direct Losses"

means

all damage, losses, liabilities, claims, actions, costs, expenses (including the cost of legal or professional services, legal costs being on an indemnity basis), proceedings, demands and charges whether arising under statute, contract

or at common law but, to avoid doubt, excluding Indirect Losses;

"Disclosed Data"

to the Project disclosed to the Construction Sub-Contractor a¡d its Shareholders and advisers, including all documentation issued during the means information relating

tender process in relation to the Procurement;

"Discriminatory Change in

Law"

means a Change in Law, the

tems of which apply expressly

to:

(a)

the Project and not to similar projects procured

under PFI

in

England

or public private

partnership in Scotland;

(b)

the Contractor and not to other persons; and/or

(c)

contractors engaged on public private parhership projects in Scotland and not to other persons;

"Disputed Amount"

has the meaning given

to it in

clause 45.5

.2

(Dßputed

Amounts);

"Dispute Resolution Procedure"

means the procedure for the resolution of disputes set out in Schedule P art 22 (Dispute Res olution Procedwe);

''DPA''

means the Data Protection

Act 1998;

"Duty of Care Requirements"

means the requirements

of The Environmental Protection l99l:

"Effective Date"

means the last date ofexecution

(

Duty olCare) Regulations

ofthis Contract;

SCI{EDULE PART

"Emergency"

1

means an event causing or, in the reasonable opinion of a Party, threatening to cause death or serious injury to any individual, or serious disruption to the lives of a number of people or extensive damage to property, or contamination of the environment in each case on a scale beyond the capacity

of the emergency services, or preventing the Services operating under normal circumstances and requiring the mobilisation and organisation of the emergency services (and whether or not an Emergency has arisen shall be determined in the case of any dispute by the Contractor acting reasonably);

"Enabling Works"

has the meaning given to it in Schedule Pan 36 (Enabling Works : Completion and P osTC ompletion Re quirements);

"Enabling Works Sites"

has tlre meaning given to it in Schedule Part 36 (Enabling Itr/orl