If either the Authority is not entitled to retender the provision of the Project under Clause 21.2.7 (Retendering election) or the Authority elects to require an expert determination in accordance with this Clause 21.2.9 (No Retendering Procedure) then the following procedure shall apply.
(a) Subject to paragraph (b) below, the Contractor shall not be entitled to receive any Post Termination Service Amount.
(b) If the Authority elects to require an expert determination in accordance with this Clause 21.2.9 (No Retendering Procedure) after it has elected to follow the procedure under Clause 21.2.8 (Retendering Procedure), then the Authority shall continue to pay to the Contractor each Post Termination Service Amount until the Compensation Date, in accordance with Clause 21.2.8 (Retendering Procedure).
(c) In agreeing or determining the Estimated Fair Value of the Contract the parties shall be obliged to follow the principles set out below:
(i) all forecast amounts should be calculated in nominal terms at current prices, recognising the adjustment for indexation in respect of forecast inflation between the date of calculation and the forecast payment date(s) as set out in the Contract;
(ii) the total of all future payments of the full Unitary Charge (without deductions) forecast to be made shall be calculated and discounted to the Termination Date at the Termination Date Discount Rate;
(iii) the total of all costs forecast to be incurred by the Authority as a result of termination shall be calculated and discounted at the Termination Date Discount Rate and deducted from the payment calculated pursuant to sub-paragraph (ii) above, such costs to include (without double counting):
(A) a reasonable risk assessment of any cost overruns that will arise,354 whether or not forecast in the relevant base case;
(B) the costs of the Service forecast to be incurred by the Authority in providing the Project to the standard required;355 and
(C) any rectification costs required to deliver the Project to the standard required (including any costs forecast to be incurred by the Authority to complete construction or development work and additional operating costs required to restore operating services standards),
in each case such costs to be forecast at a level that will deliver the full Unitary Charge referred to in paragraph (ii) above.
(d) If the parties cannot agree on the Adjusted Estimated Fair Value of the Contract on or before the date falling [30] days after the date on which the Authority elected to require an expert determination in accordance with this Clause 21.2.9 (No Retendering Procedure), then the Adjusted Estimated Fair Value of the Contract shall be determined in accordance with Clause 28 (Dispute Resolution).
(e) The Authority shall pay to the Contractor an amount equal to the Adjusted Estimated Fair Value of the Contract on the date falling 60 days after the date on which the Adjusted Estimated Fair Value of the Contract has been agreed or determined in accordance with this Clause 21.2.9 (No Retendering Procedure).
(f) The discharge by the Authority of its obligation in paragraph (e) is in full and final settlement of all the Contractor's claims and rights against the Authority for breaches and/or termination of this Contract or other Project Document356 whether in contract, tort, restitution or otherwise save for any liability that arose prior to the Termination Date (but not from the termination itself) that has not been taken into account in determining the Adjusted Estimated Fair Value of the Contract.
(g) To the extent that the Adjusted Estimated Fair Value of the Contract is less than zero, then an amount equal to the Adjusted Estimated Fair Value of the Contract shall be due and payable by the Contractor to the Authority on the Compensation Date.357
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354 A methodology can be agreed in advance for agreeing what constitutes a reasonable risk assessment.
355 This includes both the every day running costs and the costs of the service and life cycle maintenance costs. Forecasts by agreement or, in the event of disputes, by an expert.
356 See footnote 348 above.
357 See footnote 345 above.