59.5  Unavailability of Terms and Conditions

59.5.1  If, upon the renewal of any insurance which the Contractor is required to maintain or to procure the maintenance of pursuant to this Agreement:  

(a)  any Insurance Term is not available to the Contractor in the worldwide insurance market with reputable insurers of good standing; and/or

(b)  the insurance premium payable for insurance incorporating such Insurance Term is such that the Insurance Term is not generally being incorporated in insurance procured in the worldwide insurance market with reputable insurers of good standing by contractors in the United Kingdom,

(other than, in each case, by reason of one or more actions of the Contractor and/or any sub-contractor of the Contractor) then clause 59.5.2 (Unavailability of Terms and Conditions) shall apply.

59.5.2  If it is agreed or determined that clause 59.5.1 (Unavailability of Terms and Conditions) applies then the Authority shall waive the Contractor's obligations in clause 57.1 (Requirement to Maintain) and/or Schedule 11 (Insurances) in respect of that particular Insurance Term and the Contractor shall not be considered in breach of its obligations regarding the maintenance of insurance pursuant to this Agreement as a result of the failure to maintain insurance incorporating such Insurance Term for so long as the relevant circumstances described in clause 59.5.1 (Unavailability of Terms and Conditions) continue to apply to such Insurance Term.

59.5.3  To the extent that the parties agree (acting reasonably), or it is determined pursuant to the Dispute Resolution Procedure, that an alternative or replacement term and/or condition of insurance is available to the Contractor in the worldwide insurance market with reputable insurers of good standing which if included in the relevant insurance policy would fully or partially address the Contractor's inability to maintain or procure the maintenance of insurance with the relevant Insurance Term, at a cost which contractors in the UK are (at such time) generally prepared to pay, the Contractor shall maintain or procure the maintenance of insurance including such alternative or replacement term and/or condition.  Notwithstanding any other provision of this Agreement, the costs of such insurance shall be subject to the premium costs sharing mechanism set out at Schedule 23 (Insurance Premium Risk Sharing Schedule).

59.5.4  [Where the Authority has exercised the waiver pursuant to clause 59.5.2 (Unavailability of Terms and Conditions), it shall be entitled to deduct from the annual Unitary Charge the Adjusted Amount, such amount being an amount equal to the amount paid for the particular Insurance Term in the preceding year (using a reasonable estimate of such amount where a precise figure is not available) less any annual amount paid or payable by the Contractor to maintain and/or procure the maintenance of any (whether full or partial) alternative or replacement insurance in respect of such Insurance Term pursuant to clause 59.5.3 (Unavailability of Terms and Conditions).]

59.5.5  [While clause 59.5.1 (Unavailability of Terms and Conditions) applies, the annual Unitary Charge shall be reduced each Contract Year by the Adjusted Amount, Indexed from the date that the particular Insurance Term is no longer available.]

59.5.6  The Contractor shall notify the Authority as soon as reasonably practicable and in any event within five days of becoming aware that clause 59.5.1(a) and/or clause 59.5.1(b) (Unavailability of Terms and Conditions) are likely to apply or (on expiry of the relevant insurance then in place) do apply in respect of an Insurance Term (irrespective of the reason for the same).  The Contractor shall provide the Authority with such information as the Authority reasonably requests regarding the unavailability of the Insurance Term and the parties shall meet to discuss the means by which such unavailability should be managed as soon as is reasonably practicable.

59.5.7  In the event that clause 59.5.1(a) and/or clause 59.5.1(b) (Unavailability of Terms and Conditions) apply in respect of an Insurance Term, (irrespective of the reasons for the same) the Contractor shall approach the insurance market at least every four months to establish whether clause 59.5.1(a) and/or clause 59.5.1(b) (Unavailability of Terms and Conditions) remain applicable to the Insurance Term.  As soon as the Contractor is aware that clause 59.5.1(a) and/or clause 59.5.1(b) (Unavailability of Terms and Conditions) has ceased to apply to the Insurance Term, the Contractor shall take out and maintain or procure the taking out and maintenance of insurance (to be incepted as soon as is reasonably practicable) incorporating such Insurance Term in accordance with this Agreement.