3.9. Architectural Enhancements

3.9.1. Without having obtained the prior written consent of the Authority and notwithstanding paragraph 3.9.5, the Contractor shall not offer to a RelevantAuthority to vary the Design Proposal or add to it in any material way or comply with or acquiesce to the imposition of any Architectural Enhancement or matter which would render a Planning Permission an Unsatisfactory Planning Permission.

3.9.2. If the Contractor becomes aware that an Architectural Enhancement is likely to be imposed upon the Contractor which will cause the Contractor to incur costs ("Architectural Enhancement Costs") at any time before proceeding to submit or re-submit a Planning Application or implement conditions attached to the Planning Permission or obligations contained in a Planning Agreement then the following provisions of this paragraph 3.9 shall apply.

3.9.3. Without limiting in any way the application of the provisions of paragraph 3.9.4, as soon as reasonably practicable and in any event within ten (10) Business Days of becoming aware that the Architectural Enhancement is likely to be imposed compliance with which would cause the Contractor to incur Architectural Enhancement Costs the Contractor shall notify the Authority in writing giving all details then available of the nature of the Architectural Enhancement and as soon as reasonably practicable and in any event within twenty (20) Business Days of receipt by the Authority of the notice pursuant to this paragraph 3.9.3, the Contractor shall give to the Authority:

(a) details of the divergence from the Design Proposal for the relevant Facility;

(b) a provisional (non-binding) estimate of the Architectural Enhancement Costs;

(c) an indication of the steps which the Contractor proposes to take and has taken pursuant to paragraph 3.9.1 in respect of the Architectural Enhancement;

(d) a provisional (non-binding) indication as to whether the Contractor is able to fund such Architectural Enhancement Costs itself such that reimbursements under paragraph 3.9 may be by way of adjustment to the Unitary Charge; and

(e) the Contractor's proposals to mitigate the impact of the Architectural Enhancement.

3.9.4. In the event that (whether or not previously identified by the Contractor pursuant to paragraph 3.9.3 above) an Architectural Enhancement is required or imposed by any Planning Permission (or associated Planning Agreement) after submission of the Planning Application then the Contractor shall:

(a) within five (5) Business Days of the grant of the Planning Permission concerned (or if appropriate the notification of the Architectural Enhancement by other means) notify the Authority in writing of the nature of the Architectural Enhancement giving full details and as soon as reasonably practicable and in any event within fifteen (15) Business Days of the grant of the Planning Permission concerned (or if appropriate the notification of the Architectural Enhancement by other means) provide to the Authority the information referred to in paragraph 3.9.3 (whether by way of confirmation of previously provided information or otherwise);

(b) within fifteen (15) Business Days of receipt of the information by the Authority pursuant to paragraph 3.9.4(a) above (or such other longer period as may be reasonable having regard to the nature and extent of the Architectural Enhancement proposed) give full details of the Architectural Enhancement Costs (including any costs of financing them) to be claimed by the Contractor;

(i) the Architectural Enhancement is a divergence from the Design Proposal for the relevant Facility;

(ii) the Design Proposal was of a standard that a reasonably experienced Contractor would have provided for designing a similar facility for construction at the same Site and taking into account all relevant planning policies;

(iii) the Architectural Enhancement will cause the Contractor to incur the Architectural Enhancement Costs claimed; and

(iv) it has used reasonable endeavours to minimise the Architectural Enhancement Costs and any financing costs; and

(v) within five (5) Business Days of a request in writing by the Authority, provide to the Authority a detailed cost breakdown of the Architectural Enhancement Costs claimed and, where the Authority specifically identifies the need for such information as part of its request under this paragraph 3.9, the Contractor shall provide such breakdown of costs as is reasonably practicable for each of the specified methods of payment set out in paragraph 3.9.6.

3.9.5. In the event that an Architectural Enhancement is required or imposed by any Planning Permission (or associated Planning Agreement) and the Architectural Enhancement Costs are demonstrated by the Contractor, the Authority shall and without unreasonable delay and in any event within fifteen (15) Business Days from receipt of the details provided pursuant to paragraph 3.9.4(c)(iv), select one of the following options by written notice to the Contractor:

(a) accept the Architectural Enhancement in which event the Architectural Enhancement Costs shall be borne by the Authority in accordance with paragraph 3.9.6 (Reimbursement of Architectural Enhancement Costs); or

(b) in accordance with paragraph 2.4 (Proceedings) require the Contractor to seek the opinion of Leading Counsel as to the merits of pursuing any Proceedings and the provisions of paragraphs 2.5 and 2.6 shall apply provided that if Leading Counsel advises that there is no reasonable prospect of success in pursuing Proceedings to remove the Architectural Enhancement then the Authority shall as soon as reasonably practicable thereafter and in any event within fifteen (15) Business Days from receipt of Leading Counsel's opinion pursuant to paragraph 3.9.5(b), by notice in writing select one of the options set out in paragraph 3.9.5 (a) or 3.9.5(c); or

(c) refuse the Architectural Enhancement in which event paragraph 3.2 (Failure to obtain Planning Permission) shall apply.

3.9.6. Reimbursement of Architectural Enhancement Costs

In the event that the Authority has accepted the Architectural Enhancement Costs under paragraph 3.9.5(a) then the Authority shall reimburse the Contractor the Architectural Enhancement Costs demonstrated to its reasonable satisfaction to have been incurred through any one of the following means the choice of such means to be in the Authority's absolute discretion:

(a) by way of an adjustment to the Unitary Charge for all or part of the remainder of the Contract Period; or

(b) by way of lump sum payment made in one or more instalments; or

(c) an adjustment to the 208Expiry Date to allow the Contractor to recoup the Architectural Enhancement Costs through the Unitary Charge; or

(d) a combination of one or more of the means set out in paragraphs 3.9.6(a) to (c) above,

such Architectural Enhancement Costs and any costs of financing them (in the event that the Authority does not reimburse them as and when they are incurred) being calculated as if such matter was an Authority Change under Clause 43 (Authority and Contractor Changes) and applied in accordance with the provisions of Schedule 19 (Revision of Base Case and Custody) provided that in the event that the aggregate Architectural Enhancement Costs in respect of a Facility shall exceed ten percent (10%) of the Contractor's overall capital costs for the Project then the Authority shall pay such Architectural Enhancement Costs in accordance with paragraph 3.9.6(c) as and when such Architectural Enhancement Costs are incurred by the Contractor.]

3.9.7. Dispute Resolution

In the event that the Parties fail to agree any matters in relation to this paragraph 3.9 (Architectural Enhancements) the provisions of Schedule 22 (Dispute Resolution) shall apply.

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208 The Authority's ability to effect this will be dependent on whether it is permissible under the Contract and procurement regulations.