[61.1]

61.1  The Contractor shall, subject to Clause 61.3 (Contractor Not Responsible), be responsible for, and shall release and indemnify the Authority or any Authority Related Party, on demand from and against all liability for:

61.1.1  death or personal injury;

61.1.2  loss of or damage to property (including property belonging to the Authority or for which it is responsible ("Authority Property") but excluding the land and buildings forming part of any Facility ); and

61.1.3  third party actions, claims and/or demands brought against the Authority or any Authority Related Party,133

which may arise out of, or in consequence of, the design, construction, operation or maintenance of the Assets or the performance134 or non-performance by the Contractor of its obligations under this Contract or the presence on the Site(s) or on property which is in the ownership or control of the Authority and adjacent to [any of] the Site(s) of the Contractor, a subcontractor of the Contractor (of any tier), their employees or agents.

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133  See Section 24.6.3 of SoPC4.

134  The Contractor will perform its obligations under the Contract in accordance with the solution it offers as part of its bid and in putting together such solution should have regard to the indemnity provisions. Accordingly, the Contractor should take account of the potential liability under the indemnity provisions in developing its methodology and pricing its bid. Some Contractors may try to argue that the indemnity provisions should only be triggered if the relevant liability arises as a result of (a) the Contractor being in breach of or not performing its obligations under the Contract; or (b) the Contractor being negligent. Such requests are unacceptable as they bring the risk of the Contractor's delivery plan (to meet the Authority's Requirements) back on to the Authority. The only exception to this will be if the Authority has specified input requirements or is providing a degree of design sign-off (see Section 3.4 of SoPC4) in which case the indemnity may need to acknowledge this.