4.1 Where, in relation to the Site:
4.1.1 there is a breach of the Project Agreement by the Contractor;
4.1.2 there is an act or omission of the Contractor which entitles the Authority to make a claim under the Project Agreement;
4.1.3 there is damage to the Site that is the liability of the Contractor under the Project Agreement;
4.1.4 a dispute arises under Clause 23.1 of this Agreement; and/or
4.1.5 the Company is a co-insured party under a Project Insurance and wishes to pursue a claim against insurers under a relevant Project Insurance,
the Authority and the Company shall promptly liaise to consider whether and upon what basis the Authority should exercise any of the rights available to it under the Project Documents in respect of such breach, act or omission or whether and upon what basis the Company would intend to exercise its right to make a claim against a relevant Project Insurance (as the case may be) provided that with the exception of any claims which may prejudice the operation of Clause [ ] of the Project Agreement, nothing in this Clause 4 shall be construed as preventing the Company from making a claim under a relevant Project Insurance where it is a co-insured party.
4.2 If the Authority and the Company cannot reach agreement on an issue raised pursuant to Clause 4.1, DFE shall adjudicate promptly on that issue, taking into account:
4.2.1 any time period required to take action in accordance with the Project Agreement and relevant circumstances;
4.2.2 the views of both parties; and
4.2.3 any matter reasonably deemed relevant by DFE.
4.3 In the event that it is agreed by the parties or determined by DFE that:
4.3.1 the Authority should exercise its rights and remedies in respect of the relevant breach, act or omission, the Authority shall promptly use its best endeavours to do so; or
4.3.2 a relevant party should pursue a claim against an insurer under a Project Insurance, the relevant party shall (subject to any existing claim arrangements) endeavour to pursue such a claim.
4.4
4.4.1 The Authority shall use all reasonable endeavours to procure compliance by the Contractor with its obligations under the Project Agreement for the benefit of the Academy and the Company.
4.4.2 Where in this Agreement the Authority purports to limit its liability to the Company to the equivalent benefit it receives under the Project Agreement or ICT Contract (as appropriate) such limitation shall be subject always to the Authority complying with clause 4.4.1.
4.4.3 In its monitoring of the Contractor, the Authority shall have regard (so far as is reasonable and practicable to do so) to any matter that the Company (acting reasonably) considers should be enforced against the Contractor pursuant to the Project Agreement provided that the Company shall notify the Authority of any such matters as soon as reasonably practicable.
4.5 Payment of Claims Following Contractor Default
4.5.1 Subject to Clause 4.5.2 the Authority shall promptly pay to the Company any amounts it recovers under the Project Documents following a Contractor Default, to the extent they relate to the Academy.
4.5.2 Where the losses referred to in Clause 4.5.1 are suffered by the Company and the Authority arising from the same matter and the amount recovered does not cover the total losses incurred, the Authority shall only be liable to the Company under this Clause 4.5.2 for a proportionate amount of the amounts recovered taking into account the parties' respective claims. The Authority shall not be liable to the Company under this Clause 4.5 for any amounts in excess of those recovered pursuant to the Project Documents.
4.6 [During the subsistence of the Project Agreement, the Authority shall provide to those pupils at the Academy from time to time entitled to free meals such free meals as a maintained school is required under Legislation from time to time in force to provide. It is acknowledged that the Authority has delegated the provision of such meals to the Contractor under the Project Agreement.] [DN: Consider Project Agreement wording]
4.7 The Authority will hold for the benefit of the Company and will, where permitted to do so by the Project Documents, if so required by the Company, use reasonable endeavours to enforce in accordance with the terms thereof each Collateral Warranty given by the Building Contractor, FM Contractor and members of the Professional Team to the extent that the protections afforded by each such Collateral Warranty relate to the Academy. The Company will indemnify the Authority for the proportion of its costs of taking such action as relates to the proportion of the benefit of enforcement of such Collateral Warranty accruing to the Company.
4.8 The Company shall be entitled in any action or proceedings brought by the Authority in connection with this Agreement to rely on any right in defence of liability available to the Authority in the Project Agreement and to raise an equivalent right in defence of liability (save for set off and counterclaim) as would be available to the Authority in the Project Agreement and to raise an equivalent right in defence of liability (save for set off and counterclaim) as would be available in connection with a similar course of action by the Contractor against the Authority pursuant to the Project Agreement.
4.9 In the event of an Emergency to which Clause [ ] of the Project Agreement applies upon the request of the Company, the Authority will instruct the Contractor to use its best endeavours to procure that such additional or alternative services (of a similar nature to the Services) shall be undertaken by the Contractor to ensure that the Emergency is dealt with and normal operation of the Academy resumes as soon as reasonably practicable and the Company will bear and pay any costs payable by the Authority to the Contractor under Clause [ ] of the Project Agreement in those circumstances. [DN: Consider Project Agreement wording]