40.17  Reinstatement

[Subject to clause 40.18] where a claim is made or proceeds of insurance are received or are receivable under any Physical Damage Policy in respect of a single event (or a series of related events) (Relevant Incident) in an amount in excess of £ ([indexed]) the following provisions shall apply:

(a)  the Service Provider shall deliver, as soon as practicable and in any event within twenty (20) Business Days after the making of the claim, a plan prepared by the Service Provider for the carrying out of the works necessary (the Reinstatement Works) to repair, reinstate or replace (the Reinstatement Plan) the Facilities which are the subject of the relevant claim or claims in accordance with clause 40.17(c).  The Reinstatement Plan shall set out:

(i)  if not the Construction Contractor, the identity of the person proposed to effect the Reinstatement Works, which shall be subject to the prior written approval of the Authority; and

(ii)  the proposed terms and timetable upon which the Reinstatement Works are to be effected (including the date that the Project will become fully operational), the final terms of which shall be subject to the prior written approval of the Authority, which approval shall not be unreasonably delayed;

(b)  provided that the Authority is satisfied that the Reinstatement Plan will enable the Service Provider to comply with clause 40.17(c) within a reasonable timescale:

(i)  the Reinstatement Plan shall be adopted;

(ii)  the Service Provider shall enter into contractual arrangements to effect the Reinstatement Works with the person identified in the Reinstatement Plan approved by the Authority;

(iii)  prior to the earlier to occur of the Termination Date or the Expiry Date any amounts standing to the credit of the Joint Insurance Account (the Relevant Proceeds) (together with any interest accrued) may be withdrawn by the Service Provider from the Joint Insurance Account as required to enable it to make payments in accordance with the terms of the contractual arrangements referred to in clause 40.17(b)(ii) and to meet any other reasonable costs and expenses of the Service Provider for the sole purposes of funding the Reinstatement Works.  The parties shall operate the signatory requirements of the Joint Insurance Account in order to give effect to such payments.  Following the earlier to occur of the Termination Date and the Expiry Date, the Authority may withdraw amounts standing to the credit of the Joint Insurance Account for the purposes of funding any Reinstatement Works;

(iv)  the Authority agrees and undertakes that, subject to compliance by the Service Provider with its obligations under this clause 40.17, and provided that the Service Provider procures that the Reinstatement Works are carried out and completed in accordance with the contractual arrangements referred to in clause 40.17(b)(ii) it shall not exercise any right which it might otherwise have to terminate this Agreement by virtue of the event which gave rise to the claim for the Relevant Proceeds;

(v)  the Authority undertakes to use reasonable endeavours to assist the Service Provider in the carrying out of the Reinstatement Plan;

(vi)  after the Reinstatement Plan has been implemented to the reasonable satisfaction of the Authority and in accordance with clause 40.17(c) the Authority shall permit withdrawal by the Service Provider of any Relevant Proceeds then held within the Joint Insurance Account that have not been paid under clause 40.17(b)(iii) in respect of the Relevant Incident, together with any interest accrue;

(vii)  subject to the provisions of clause 8.1 (Indemnities and Liabilities), the Service Provider shall be solely responsible for the payment of any deficiency;

(c)  where Insurance proceeds are to be used, in accordance with this Agreement, to repair, reinstate or replace the Facilities, the Service Provider shall carry out the work in accordance with the Authority Construction Requirements so that on completion of the work the provisions of this Agreement are complied with.