Redacted Project Agreement and Schedules For Cllrs

Dublin City Council
. . r

Combair!e Cathrach Bhaile Atha Cliath

DUBLIN WASTE TO ENERGY PROJECT

PROJECT AGREEMENT AND SCHEDULES

()

DUBLIN CITY COUNCIL

AND

DUBLIN WASTE TO ENERGY LIMITED

September 2007

GFC\1539S84.1


SEPTEMBER 2007


PROJECT AGREEMENT

DUBLIN CITY COUNCIL AND


DUBLIN CITY COUNCIL

EXH:lilIO;\ COpy


SEPTEMBER 2007


PROJECT AGREEMENT

DUBLIN CITY COUNCIL AND


DUBLIN CITY COUNCIL

LXECUTIOi\ COpy

DUBLIN WASTE TO ENERGY I'ROJECT

SEPTEMBER 2007

TABLE OF CONTENTS

PART 1 - DEFINITIONS AND INTERPRETATIONS 8

1. DEFINITIONS AND INTERPRETATION 8

PART 2 - CONDITIONS PRECEDENT 12

2. CONDITIONS PRECEDENT 12

PART 3 - DURA.TION 13

3. EFFECTIVENESS OF THIS AGREKMENT 13

4. DURATION 15

5. OPTION TO EXTEND CONTRACT PERIOD 15

PART 4 - WARRANTIES, DISCLAIMERS AND PROJECT UNDERTAKINGS I6

6. WARRANTIES 16

7. DISCLAII\1ERS 20

8. PROJECT UNDERTAKINGS 21

9. INFORMATION TO BE PROVIDED BY THE AUTHORITY 24

PART 5 - PROPERTY ~ 25

10. LAND 25

11. PROTESTORS AND TRESPASSERS 29

12. ARCHAEOLOGICAL OBJECTS 30

PART 6 -DESIGN AND CONSTRUCTION 32

13. DESIGN AND CONSTRUcrION 32

14. CONTRACT PROGRAl\1ME 36

15. INSTALLATION COMPLETION & PERFORMANCE DEMONSTRATION

CERTIF1CATES 37

16. HEALTH, SAFETY AND SECURITY 40

17. INTELLECTUAL PROPERTY 41

18. RELEVANT STANDARDS 44

PART 7 - OPERATIONS AND MAINTENANCE. 45

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TABLE OF CONTENTS

PART 1 - DEFINITIONS AND INTERPRETATIONS 8

1. DEF1NITIONS AND INTERPRETATION 8

PART 2 - CONDITIONS PRECEDENT 12

2. CONDITIONS PRECEDENT 12

PART 3-DURATION 13

3. EFFECTIVENESS OF TIDS AGREEMENT : 13

4. DURATION : 15

5. OPTION TO EXTEND CONTRACT PERIOD 15

PART 4 - WARRANTIES, DISCLAIMERS AND PROJECT UNDERTAKINGS 16

6. WARRANTIES 16

7. DISCLAIMERS 20

S. PROJECT UNDERTA.KINGS 21

9. INFORMATION TO BE PROVIDED BY THE AUTHORITY 24

PART 5 - PROPERTY 25

10. LAND ; 25

11. PROTESTORS AND TRESPASSERS 29

12. ARCHAEOLOGICAL OBJECTS 30

PART 6 - DESIGN AND CONSTRUCTION 32

13. DESIGN AND CONSTRUCTION 32

14. 'CONTRACT PROGRAMME 36

15. INSTALLATION COMPLETION & PERFORMANCE DEMONSTRATION

CERTIFICATES 37

16. HEALTH, SAFETY AND SECURITY : 40

17. INTELLECTUAL PROPERTY 41

IS. RELEVANT STANDARDS 44

PART 7 - OPERATIONS AND MAINTENANCE. .45

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19. OPERATIONS AND MAINTENANCE. 45

20. PERFORMANCE ACCEPTANCE CERTIF1CATE .48

21. AUTHORITY WASTE 50

PART 8 - RELATIONSHIPS, MONITORING AND THIRD PARTIES 55

22. REPRESENTATIVES ··· 55

23. LIAISON PROCEDURES 56

24. CONSENTS AND APPROV ALS 57

25. QUALITY AND ENVIRONMENTAL MANAGEMENT 61

26. REPORTS AND PLANS 63

27. RECORDS 65

28. CUSTODY OF FINANCIAL MODEL 67

( \

29. ANNU.A1, ACCOUNTS 67

PART 9 - CHANGE 69

30. VARIATION PROCEDURE 69

31. CHANGES IN LAW 69

PART 10 - PAYMENT AND MONITORING 70

32. MONITORING OF PERFORMANCE. 70

33. CALCULATION OF PAYMENTS 73

34. PAYMENT REQUESTS 73

35. PAYMENTS 73

36. SET-'OFF 73

37. REFINANCING 74

38. AMENDMENTS TO THE FINANCING AGREEMENTS 74

PART 11 - TAX.ES 76

39. TAXES 76

40. VALUE ADDED TAX 78

41. RATES 79

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SCHEDULE 19 REFINANCING

SCHEDULE 20 PUBLIC INVOLVEMENT

SCHEDULE 21 CHANGES IN LAW

SCHEDULE 22 INSlJRANCES

SCHEDULE 23 COMPENSATION EVENTS, RELIEF EVENTS AND FORCE MAJEURE EVENTS

SCHEDULE 24 COMPENSATION ON TERM:INATION

SCHEDULE 25 AUTHORITY DEFAULT AND PPP CO DEFAULT

SCHEDULE 26 TRANSFER OF ASSETS

SCHEDULE 27 HANDBACK REQUIREMENTS

SCHEDULE 28 DISPUTES RESOLUTION PROCEDURE

SCHEDULE 29 , BID PROPOSALS

SCHEDULE 30 PROFIT SHARING

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SEPTEMBER 2007

THIS PPP CONTRACT is made the ~day of September 2007

BETWEEN:

(1) DUBLIN CITY COUNCIL, its successors and assigns of Civic Offices, Wood Quay, Dublin 2, Ireland (the "Authority"); and

(2) DUBLIN WASTE TO ENERGY LtMITED, a company incorporated under the laws of Ireland with registered number 399060 and having its registered office at Arthur Cox Building, Earlsfort Terrace, Dublin 2, Ireland (the "PPP Co"),

hereinafter, collectively referred to as the "parties".

WHEREAS:

(A) In accordance with national waste management policy, the Government of Ireland desires to have the private sector invest and participate in the development of the Dublin region's integrated waste management strategy.

(

CB) In accordance with the foregoing policy, interested parties were invited to submit bid proposals to participate in the Project.

(C) The Project will comprise, inter alia, the design, construction, operation, maintenance and financing of a waste to energy facility to be known as the Dublin Waste to Energy Facility.

CD) The Authority arranged for publication of an advertisement in the Official Journal of the European Communities, using the negotiated procedure applicable to Council Directive 93/37/EEC (Works) as amended by Council Directive 97/521EC.

(E) Bid proposals have been submitted by the PPP Co for the Project, to include, inter alia, the design and construction of the Works, the operation and maintenance of the Facility and the financing of the same during the Contract Period.

(F) The Initial Required Documents have been entered into on or prior to the Commencement Date or, where so indicated, are in Agreed Form and the Final Required Documents shall be entered into on or prior to the Effective Date.

(G) The Authority and the PPP Co have reached agreement in relation to the Project as set out in this Agreement.

NOW IT IS HEREBY AGREED as follows:

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PART I-DEfiNITIONS AND INTERPRETATIONS

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement (including the recitals and Schedules), unless the context otherwise requires, all capitalised words will have the meanings as set out in Schedule 01 (Definitions) .

1.2 Interpretation

Save to the extent that the context or the express provisions of this Agreement otherwise require:

(a) beadings and sub-headings are for ease of reference only and shall not be taken into consideration in the interpretation or construction of this Agreement;

(b) all references to Clauses and Schedules are references to Clauses of and Schedules to this Agreement and all references to Parts, Sections, paragraphs, Annexes or Appendices are references to Parts, Sections and paragraphs contained in and Annexes and Appendices to the Schedules;

(c) the Schedules to this Agreement (including any Annexes or Appendices thereto) are an integral part of this Agreement and reference to this Agreement includes reference thereto and reference to any Schedule includes reference to any Annex or Appendix thereto;

(d) all references to any agreement (including, without limitation, this Agreement), document or other instrument include (subject to all relevant approvals and any other provision of this Agreement expressly concerning such agreement, document or other instrument) a reference to that agreement, document or instrument as amended, supplemented, substituted, novated or assigned;

(e) all references to any statute or statutory provision (including any subordinate legislation) shall include references to any statute or statutory provision which amends, extends, consolidates or replaces the same or which has been amended, extended, consolidated or replaced by the same and shall include, without limitation, any statutory instrument, proclamation, bye-law, directive, decision, regulation, rule, order, notice, codes of practice, code of conduct, rule of court, instrument or delegated or other subordinate legislation made under the relevant statute;

(f) all references to time of day shall be a reference to whatever time of day shall be in force in Ireland;

(g) any reference to "requirements" or "obligations" shall to be to such requirements or obligations as may be subsequently altered or supplemented in accordance with the terms of this Agreement;

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(h) the words "herein", "hereto" and "hereunder" refer to this Agreement as a whole and not to the particular Clause, Schedule, Part, Section, paragraph, Annex or Appendix in which such word may be used;

(i) words importing the singular include the plural and vice versa;

(j) words importing a particular gender include all genders;

(k) "person" includes any individual, partnership, firm, trust, body corporate, government, governmental body, authority, emanation, agency or instrumentality, unincorporated body of persons or association;

(1) any reference to a public organisation or representative shall be deemed to include a reference to any successor to such public organisation or representative or any organisation or entity or representative which has taken over the functions or responsibilities of such public organisation or representative;

(m) references to "parties" mean the parties to this Agreement and references to a "party" mean one of the parties to this Agreement;

(n) references to drawings are references to drawings appearing in the Schedules hereto;

(0) all monetary amounts are expressed in Euro;

(P) any references to the Authority shall be deemed to include a reference to the Authority's Representative, the Authority's advisers, consultants, servants, contractors and agents;

(q) references to amounts or sums being expressed in real Base Date prices are references to amounts or sums which have been or are to be adjusted to reflect the effects of inflation after that date as measured by changes in the Index from the level published by the Central Statistics Office for the month of 1 January 2004 in accordance with Part 2 of Schedule 18 (payment and Performance);

(r) wherever this Agreement obliges the Authority to pay any amount to the PPP Co in respect of any Loss, Claim or other sums incurred by the PPP Co:

(i) such obligation shall be construed as applying only to so much of such sums as have been properly incurred on an arm's length commercial basis or, where not incurred on an arm's length commercial basis (including where the payment is made to any Principal Subcontractor or an Associated Company of the PPP Co), so much of them as are proper and reasonable; and

(ii) the PPP Co shall provide supporting evidence of such Loss, Claim or other sums;

(s) the Authority shall be imputed with knowledge of any fact, matter or thing within the knowledge of those of its servants or agents having obligations in

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respect of the Project, but the Authority shall not be imputed with knowledge of any fact matter or thing merely because that fact, matter or thing is within: (i) the knowledge of servants or agents of the Authority who do not have obligations in respect of the Project; or (ii) servants or agents of the State other than those of the Authority;

(t) any reference to the statutory duties or functions of the Authority shall be a reference to such duties or functions (including powers and discretions) from time to time and shall include any common law duties and functions (including powers and discretions);

(u) if the result of any calculation to be rounded up or down to a multiple of a specified figure (after deducting the next lower multiple of the specified figure) is exactly half that specified figure (for example, where amounts are to be rounded up or down to the nearest 10 (ten), the calculation gives a 5 (fivej), then such result shall be rounded up to the nearest multiple of the specified figure;

(v) any reference to "day" shall, unless otherwise stated, mean the period of time which begins with one midnight and ends with the next;

(w) any reference to "year" shall, unless otherwise stated, mean 365 (three hundred and sixty-five) days;

(x) any reference to the obligations or responsibilities of the PPP Co under this Agreement shall, where applicable, be deemed to apply to the Staff;

(y) where the context requires, any reference in this Agreement to "approval" shall include "Approval", reference to "certificate" shall include "Certificate", reference to "acknowledge" shall include "Acknowledged", reference to "notice" shall include "Notice", and reference to "sub-contractor" .shall include "Principal Sub-Contractor";

(z) any Approval shall be at the absolute discretion of the Authority's Representative or the Authority, as the case may be, except where expressly stated otherwise in this Agreement;

(aa) any reference to "tonne" shall mean a metric tonne and for the avoidance of doubt shall be equal to 1,000 (one thousand) kilo grams; and

(bb) any reference to measuring units in this Agreement and in any communications between the parties shall be based on the International System of Units.

1.3 Language

The language of this Agreement is English. All correspondence, drawings, Design Data, Required Documents, project documentation, test reports, certificates, specifications and information shall be entirely in English. Except where specifically provided for within this Agreement (in which case the relevant language shall be Irish), all operating and maintenance instructions and manual, name and rating plates, identification labels and other written and printed matter required for the Project shall

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be in English, as shall instructions and notices to the public and Staff and all other signing and information notices.

1.4 Ambiguities

In the case of any ambiguity or discrepancy:

(a) between the provisions in this Agreement (excluding for this purpose, the Schedules) and the provisions of any Schedule (other than Schedule 29 (Bid Proposals)) the provisions of this Agreement (excluding for this purpose, the Schedules) shall prevail; or

(b) between the provisions of particular Schedules, the interpretation which provides the safest and most conservative result or the highest standard of work or service, as determined by the Authority's Representative, shall prevail; or

( c) between the provisions of Schedule 29 (Bid Proposals) and the other provisions of this Agreement (including the other Schedules), the other provisions of this Agreement shall prevail save to the extent that the application of the provisions of Schedule 29 (Bid Proposals) will, in the opinion of the Authority'S Representative, give rise to a higher standard of work or service than that contemplated by this Agreement (including the other Schedules) in which case, the provisions of Schedule 29 (Bid Proposals) shall apply; or

(d) within or between any documentation forming part of Schedule 29 (Bid Proposals), the ambiguity or discrepancy shall be determined and resolved by the Authority's Representative, acting reasonably,and, in the event of any Dispute in relation to the determination of such ambiguity or discrepancy, the matter shall be referred to the Dispute Resolution Procedure.

1.5 Technical Terms

Save where expressly stated to the contrary elsewhere in this Agreement:

(a) the relevant technical standards used in the Schedules have the meanmgs given to them therein; and

(b) the Certificates listed in the Schedules shall be given the meaning as referred to therein.

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PART 2 - CONDITIONS PRECEDENT

2. CONDITIONS PRECEDENT

2.1 Parties' Obligations

(a) Each party shall procure the satisfaction of each Condition Precedent in accordance with their obligations as set out in Schedule 02 (Conditions Precedent) and no Condition Precedent may be waived except by agreement in writing signed by each of the parties.

(b) The parties shall keep each other reasonably informed as to the progress in satisfying the Conditions Precedent and of any Legal Process (if any).

2.2 Evidence ofFulfilrnent

Subject to paragraph 9.2 of Part 1 and paragraph 9.2 of Part 4 of Schedule 02 (Conditions Precedent), the Authority and the PPP Co shall evidence the satisfaction of each Condition Precedent by delivery to the PPP Co or the Authority (as appropriate) of a certificate signed:

(a) in the case of the Authority, by the Authority's Representative; and

(b) in the case of the PPP Co, by a director or other duly authorised officer of the PPP Co,

and such certificate shall be accompanied by sufficient evidence to satisfy the other . party that the Condition Precedent has been fulfilled in accordance with this Agreement and a Condition Precedent shall not be regarded as having been satisfied until the Authority or the PPP Co (as appropriate) has received the relevant certificate and has confirmed in writing to the other party that it has been provided with sufficient evidence that the Condition Precedent has been fulfilled in accordance with this Agreement.

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PART 3 - DURATION

3. EFFECTIVENESS OF THIS AGREEMENT

3.1 Effective Date

Save for the following Clauses, which shall take effect from the Commencement Date, this Agreement shall not take effect until the Effective Date:

• Clause 1 (Definitions and Interpretation);

• Clause 2 (Conditions Precedent);

• Clause 3 (Effectiveness of this Agreement);

• Clause 4 (Duration);

• Clause 6 (IN arranties);

• Clause 7 (Disclaimers);

• Clause 8 (project Undertakings);

• Clause 9 (Information to be Provided by the Authority);

• Clause 10 (Land);

• Clause 16 (Health; Safety and Security);

• Clause 17 (Intellectual Property);

• Clause 22 (Representatives);

• Clause 23 (Liaison Procedures);

• Clause 24 (Consents and Approvals);

• Clause 25 (Quality and Environmental Management);

• Clause 26 (Reports and Plans);

• Clause 27 (Records);

• Clause 28 (Custody of Financial Model);

• Clause 30 (Variation Procedure);

• Clause 31 (Changes in Law);

• Clause 40 (Value Added Tax);

• Clause 42 (Claims);

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• Clause 43 (Indemnities);

• Clause 44 (Insurance);

• Clause 45 (Compensation Events);

• Clause 46 (Relief Events);

• Clause 47 (Force Majeure Events);

• Clause 48 (pPP Co Default);

• Clause 49 (Authority Default);

• Clause 50.4 (Voluntary Termination);

• Clause 55 (Employment Issues);

• Clause 57 (Sub-Contracting);

• Clause 58 (Change in Control);

• Clause 59 (Statutory Powers);

• Clause 60 (Dispute Resolution Procedure);

• Clause 61 (Notices);

• Clause 62 (Confidentiality);

• Clause 67 (public Involvement);

• Clause 69 (Competition Law);

• Clause 70 (Corrupt Gifts); and

• Clause 71 (Governing Law and Jurisdiction).

3.2 Achievement of Effective Date

(a) If the Effective Date has not occurred by the Effective Longstop Date, then the parties may exercise their rights to terminate this Agreement as set out in Schedule 02 (Conditions Precedent).

(b) If the First Party, acting reasonably and in good faith and which is not in breach of its obligations under Schedule 02 (Conditions Precedent), requests an extension of the Effective Longstop Date, the Second Party receiving such request may agree to such extension of time if the Second Party, acting reasonably, is satisfied that the First Party is able to satisfy the Conditions Precedent within a reasonable time from the Effective Longstop Date.

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3.3 Required Documents

The PPP Co shall have provided to the Authority the Initial Required Documents (either duly executed by the parties thereto or in Agreed Form) on or before the Commencement Date and shall provide the Final Required Documents (either duly executed by the parties thereto or in Agreed Form) on or before the Effective Date and this Agreement shall, subj ect to Clause 3.1 (Effective Date), be effective between the parties.

4. DURATION

This Agreement shall take effect in accordance with Clause 3 (Effectiveness of this Agreement) and shall remain in effect for the Contract Period.

5. OPTION TO EXTEND CONTRACT PERIOD

5.1 Option to Extend

On or before a date being the later of (i) 6 (six) months after the Initial Inspection and (ii) two (2) years and 6 (six) months prior to the Expiry Date, or such later date agreed between the parties, the Authority shall have the option to give written notice to the PPP Co of its desire to extend the Expiry Date by a period of up to 5 (five) years (the "Extension of the Contract Period") and, if the Authority gives such written notice, then this Contract shall remain in full force and effect for the additional period on the same terms and conditions as this Agreement, except that the new Applicable Gate Fee shall be determined in accordance with Part 8 of Schedule 18 (Payment and Performance).

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SEPTEMBER 2007

PART 4 - WARRANTIES, DISCLAIMERS ANDPROJECTU~~ERTAKINGS

6. WARRANTIES

6.1 General

The PPP Co acknowledges that the Authority has entered into this Agreement in reliance on the representations and warranties contained in this Agreement and the PPP Co accordingly represents and warrants to the Authority that, as of the Commencement Date:

(a) the PPP Co is a company duly incorporated and validly existing under the laws of Ireland and has the power and authority to own its assets and to conduct the business and operations which it conducts or proposes to conduct;

(b) the PPP Co has full power and authority:

(i)

to execute and deliver this Agreement and the Project Documents to which it is a party; and

(ii) to comply with the provisions of, and perform all of its obligations and exercise all of its rights under, this Agreement and the Project Documents to which it is a party;

(c) the PPP Co has taken all necessary action to authorise the execution and delivery of this Agreement and the Project Documents to which it is a party and the transactions contemplated hereby and thereby;

(d) the entry into and performance by the PPP Co of this Agreement and the Project Documents to which it is a party does not violate in any respect any of the following:

(i) any Law or Legal Requirement in force and applicable to the PPP Co at the Commencement Date; or

(ii) the constitutional documents of the PPP Co; or

(iii) any agreement, contract or other undertaking to which the Group of which the PPP Co is a member or any member thereof is a party or which is binding on the PPP Co or any Associated Company of the PPP Co or any of its property or assets;

(e) all Necessary Consents required to be obtained prior to the Commencement Date in connection with the entry into, performance, validity and enforceability of this Agreement and the Project Documents have been obtained and are in full force and effect except for those Conditions Precedent required to be satisfied by the PPP Co;

(f) on the assumption that the Authority has full capacity and power to enter into this Agreement and has complied with all Legal Requirements in entering into this Agreement and that this Agreement has been duly executed on behalf of

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the Authority, this Agreement and each of the Project Documents to which the PPP Co is a party constitutes the legal, valid and binding obligations of the PPP Co enforceable by the Authority against the PPP Co except as may be limited by any relevant bankruptcy, insolvency, examination or similar laws affecting creditors rights generally;

(g) no action, suit, proceeding, litigation or dispute against the PPP Co or any Associated Company of the PPP Co is currently taking place or pending or, to the PPP Co's knowledge having made all appropriate enquiries and exercising due diligence, threatened nor is there subsisting any judgment or award given against the PPP Co or any of its Associated Companies before any court, arbitrator or other body which, in either case, could or might result in any material adverse change in the business or condition (fmancial or otherwise) of the PPP Co or any of its Associated Companies;

(h) other than any costs or expenses incurred by the PPP Co in cormection with the entry into of and performance of its obligations under this Agreement and the Project Documents to which it is a party, the PPP Co has incurred no liabilities to date;

(i) except to the extent previously disclosed to the Authority by the PPP Co, no PPP Co Default has occurred and is continuing nor will a PPP Co Default result from the entry by the PPP Co into this Agreement or the Project Documents to which it is a party or the exercise by the PPP Co of its rights under, or the performance by the PPP Co of any of its obligations under, tills Agreement or the Project Documents to which it is a party;

(j) all necessary returns have been delivered by or on behalf of the PPP Co to the relevant taxation authorities and company registration authorities and the PPP Co is not in default in the payment of any taxes, and no Claim is being asserted with respect to taxes which has not been disclosed to the Authority;

(k) the audited consolidated financial statements of the Sponsors (together with their respective Associated Companies) for the year ended 31 December 2004 have been prepared on a basis consistently applied and using accounting principles which are generally accepted and give a true and fair view of the consolidated financial condition of the Group of which the Sponsor is a member and are unqualified for the accounting period in question;

(1) save for the assumption of liabilities pursuant to this Agreement and/or the Financing Agreements, there has been no material adverse change in the financial condition of:

(i) the PPP Co, since incorporation; and

(ii) the Sponsors, since the date of their latest audited consolidated accounts;

(m) no person is entitled or obliged to acquire any interest in the PPP Co other than to the extent contemplated by any of the Project Documents;

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(n) the PPP Co has no Subsidiary;

(0) all written information furnished by or on behalf of the PPP Co in connection with the tendering and negotiation of this Agreement or the Project Documents or delivered by or on behalf of the PPP Co to the Authority pursuant to this Agreement was true and accurate in all respects when given and there are no other facts or matters of which the PPP Co or the Sponsors are aware, after due and careful enquiry, the omission of which would have made any statement or information contained therein misleading in any material respect and all expressions of expectation, intention, belief and opinion contained therein were honestly made on reasonable grounds after due and careful enquiry; and

(P) the PPP Co is not aware of any material facts or circumstances, excluding facts and circumstances in the public domain in Ireland, that have not been disclosed to the Authority and which might, if disclosed, materially adversely affect the decision of a prudent person considering whether or not to enter into this Agreement with the PPP Co.

6.2 Project Related Warranties

The PPP Co hereby further represents and warrants to the Authority that:

(a) the financial terms set out in the Financing Agreements are the terms upon which the PPP Co will finance the Project; and

(b) as of the Commencement Date and the Effective Date, the copies of the Required Documents which the PPP Co has delivered to the Authority are true and complete copies of such documents, and there are not in existence any other agreements or documents replacing or relating to any of the Required Documents which affect the terms of any of the Required Documents.

6.3 Savings

A warranty by the PPP Co under any provision of this Agreement shall be without limitation to any other warranty by the PPP Co under any other provision of this Agreement or any other Project Document.

6.4 Site Related and Other Warranties

The PPP Co shall be deemed prior to executing this Agreement to have, and warrants that it has:

(a) inspected and examined, to the extent made possible by the Authority prior to the Commencement Date, the Site and the Shellybanks Site and their surroundings;

(b) satisfied itself as to the nature of the climatic, hydrological, ecological, environmental and general conditions of the Site, the Shellybanks Site and the Ancillary Sites, the nature of the ground and subsoil, the form and nature of the Site, the Shellybanks Site and the Ancillary Sites, the risk of injury or damage to property adjacent to or affecting the Site, the Shellybanks Site and

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the Ancillary Sites and to occupiers of such property, the nature of the materials (whether natural or otherwise) to be excavated, the existence of Archaeological Objects, and the nature of the design, work, plant and materials necessary for the Project;

(c) satisfied itself as to:

(i) the means of communication with and access to the Site, the Shellybanks Site and the Ancillary Sites;

(ii) the possibility of interference by persons (other than the Authority or persons claiming rights or title through, under or paramount to the Authority) with access to or use of the Site and the Shellybanks Site, with particular regard to the Requirements of Relevant Authorities;

(iii) the precautions and times and methods of working necessary to prevent any nuisance or interference, whether public or private, being caused to

any third parties; \

(iv) the risks of interference by Protestors or Trespassers on the Site, the Shellybanks Site and the Ancillary Sites;

(v) the good and marketable title for each of the Ancillary Sites; and

(vi) the progress of the Authority'S efforts to acquire the Site as of the Commencement Date;

(d) satisfied itself that the Ancillary Sites (if any) will be fit for the purpose for which they are to be acquired or leased or in respect of which service agreements or other arrangements are entered into;

(e) thoroughly examined, checked and satisfied itself as to the adequacy, correctness and suitability of all Design Data made available to the PPP Co by the Authority prior to the Commencement Date and which the PPP Co has adopted or which the PPP Co has made use of in relation to the Technical Requirements or which the PPP Co intends to adopt or make use of;

(f) has conducted its own analysis and review of the other materials, documents and data referred to in Clause 7 (Disclaimers) which bear on any of the matters referred to in this Clause 6.4 (Site Related and Other Warranties); and

(g) generally obtained for itself all necessary information as to:

(i) the risks, contingencies and all other circumstances which may influence or affect the Project; and

(ii) any other factors which would affect its decision to enter into this Agreement or the terms on which it would do so;

provided that:

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(a) the warranties given in this Clause 6.4 (Site Related and Other Warranties) shall not constitute an actionable warranty by the PPP Co in favour of the Authority or give rise to a right of termination on the part of the Authority, but the Authority may rely on such warranty for the purpose of defending or contesting any action brought against it or any claim made by the PPP Co, except to the extent contemplated by this Agreement; and

(b) the warranty given at Clause 6.4(b) shall be without prejudice to the provisions of Clause 12.4 (Risk Sharing) and Clause 54.2(a)(v) (Remediation of Pre-existing Contamination).

7. DISCLAIMERS

7.1 Disclosed Data

The Authority has made available to the PPP Co, prior to the Commencement Date, the Disclosed Data.

7.2 Deficiencies in Disclosed Data

The Authority, its advisers, consultants, servants, contractors and agents, shall not be liable to the PPP Co (whether in contract, tort, by statute or otherwise howsoever and whether or not arising out of any negligence on the part of the Authority, the Local Authorities, their respective advisers, consultants, servants, contractors and agents) in respect of any inaccuracy, error, omission, unfitness for purpose, defect or inadequacy of any kind whatsoever in the Disclosed Data.

7.3 No Warranty on Disclosed Data

The Authority, its advisers, consultants, servants, contractors and agents give no warranty or undertaking that the Disclosed Data represents all of the information in their possession or power (either during the tender for the Project or at the Commencement Date) relevant or material to the Project or the obligations undertaken by the PPP Co under this Agreement. The Authority, its advisers, consultants, servants, contractors and agents shall not be liable to the PPP Co in respect of any failure to disclose or make available (whether before or after the Commencement Date) to the PPP Co any information, documents or data, nor to keep the Disclosed Data up to date, nor to inform the PPP Co (whether before or after the Commencement Date) of any inaccuracy, error, omission, unfitness for purpose, defect or inadequacy in the Disclosed Data.

The Authority hereby acknowledges that, as of the Commencement Date, it is not aware of any information, other than the data which the Authority has provided to the PPP Co in respect of the Project (including the Disclosed Data) or such other information as may be publicly available, that it considers (acting reasonably) would be materially relevant to the PPP Co in determining whether to enter into this Agreement provided that:

(a) the PPP Co acknowledges that the Authority has not made any enquiry or investigation as to the accuracy or otherwise of this statement; and

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(b) any reference in the foregoing to "information" shall not include any information in the possession of the Authority and which is subject to obligations of confidentiality (whether under any Law or contract or otherwise) .

74 PPP Co Acknowledgement

The PPP Co acknowledges and confirms that:

(a) subject to Clause 7.4(c), it has conducted its own analysis and review of the Disclosed Data and has before the Commencement Date satisfied itself as to the accuracy, completeness and fitness for purpose of all such Disclosed Data upon which it places reliance;

(b)

it shall not be entitled to make any Claim against the Authority, its advisers, consultants, servants, contractors or agents whether in damages or for extensions of time or additional payments under this Agreement on the grounds of any misunderstanding or misapprehension in respect of the Disclosed Data or the matters referred to in Clause 6.4 (Site Related and Other Warranties) or Clause 7.4(a) above or on the grounds that incorrect or insufficient information relating thereto or to the Site, the Shellybanks Site, or the Project was given to it by any person, whether or not in the employ of the Authority, its advisers, consultants, servants, contractors or agents;

(

(c) if, after the Commencement Date, the PPP Co suffers a Loss due to any material inaccuracy in the Baseline Environmental Study on which the PPP Co had relied prior to discovery of such inaccuracy, the Authority shall, upon written request from the PPP Co and receipt of satisfactory evidence of such inaccuracy and Loss, bring a Claim against RPS Consulting Engineers (the preparer of the Baseline Environmental Study) and shall assign the benefit of such Claim (less any costs incurred by the Authority in bringing the Claim) to the PPP Co provided that, in the event that such Claim is unsuccessful, the PPP Co shall reimburse to the Authority all costs of bringing such Claim; and

(d) it shall not be relieved from any risks or obligations imposed on or undertaken by it under this Agreement on any grounds contemplated by this Clause 7.4 (pPP Co Acknowledgement).

8. PROJECT UNDERTAKINGS

8.1 PPP Co Obligations

Subject to and in accordance with the provisions of this Agreement, the PPP Co shall:

(a) procure the Design and Construction of the Works, the Additional Works, the Renewal Works and the works forming part of the Operations;

(b) operate and maintain the Facility during the Contract Period;

(c) to the extent not contemplated by (a) and (b) above, conduct the Operations during the Contract Period;

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(d) ensure that the Facility will satisfy the Handback Requirements on the Expiry Date; and

( e) finance the activities referred to in this Agreement,

at its own cost and risk and without recourse (other than as expressly provided in this Agreement) to funds from or support of the State or the Authority (including, the provision of guarantees by the State or the Authority).

82 Standard of Performance

The PPP Co shall procure that the Project is at all times performed:

(a) in an efficient, effective and safe manner and in accordance with Good Industry Practice (save where a different standard of performance is expressly required under this Agreement) and the Quality and Environmental Documentation;

(b) in a manner that does not or is not likely to be injurious to health or to cause damage to property; and

(c) in compliance with all applicable Laws, Legal Requirements and Relevant Standards and Relevant Guidelines.

8 3 General Obligations

(a) Without limitation to Clause 8.2 (Standard of Performance), the PPP Co will,

.at all times, assist and facilitate the Authority in carrying out, and shall take all steps necessary to ensure that the Authority is able to comply with, its duties under Law (insofar as relates to the subject matter of this Agreement) provided that the Authority shall not require the PPP Co to take any action pursuant to this Clause 8.3(a) (General Obligations) that would conflict with any of the PPP Co's other obligations under this Agreement.

(b) The PPP Co shall take such actions as are appropriate to inform all Interested Parties of its role on behalf of the Authority pursuant to Clause 24.4 (Applications, Appeals, Directions and Objections).

(c) To the extent not procured prior to the Commencement Date, the PPP Co shall procure that all Necessary Consents required in connection with the entry into, performance, validity and enforceability of this Agreement and the Project Documents (or any obligations contemplated herein or therein) will be obtained. in a timely manner.

(d)

Insofar as any intellectual property (acquired

procuring the Necessary Consents only) are vested in the Authority prior to 30 June 2007, the Authority hereby grants a perpetual, transferable, non-exclusive, royalty-free licence (carrying the right to grant

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sub-licences) of such intellectual property rights to the PPP Co.

(e) The PPP Co shall procure that all necessary returns will be delivered by or on behalf of the PPP Co to the relevant taxation authorities and company registration authorities, that the PPP Co is not in default in the payment of any taxes, and that no Claim will be asserted with respect to taxes which has not been disclosed to the Authority.

(0 The PPP Co shall procure that all Necessary Consents remain in full force and effect and it shall comply, and shall procure compliance, with the terms and requirements of each of the Necessary Consents. The Authority shall cooperate with the PPP Co in its compliance with the Necessary Consents and shall not take any action to frustrate the PPP Co's ability to comply or procure compliance with the Necessary Consents.

(g) The PPP Co shall comply with and procure compliance with all Laws, Legal Requirements, Relevant Standards and Relevant Guidelines in relation to the Project.

(h)

The PPP Co shall procure that a Letter of Credit is issued to the Authority and shall remain in effect at all times until the PPP Co's Representative demonstrates to the satisfaction of the Authority's Representative, acting reasonably, that the value of the Works constructed equals or exceeds the amount of the Letter of Credit.

(

8.4 Project Documents

The PPP Co shall, and shall use all reasonable endeavours to procure that each SubContractor shall, perform its obligations under and observe all of the terms of the Project Documents to which it is a party and shall not (and shall use all reasonable endeavours to procure that no Sub-Contractor shall):

(a) once a Project Document to which it is a party has come into full force and effect:

(i) terminate it or permit its termination without the Authority's consent; or

(ii) in any material respect waive or fail to enforce any rights it may have under such Project Document (including the form of any Project Document in Agreed Form);

(b) make or agree to any material amendment to, or variation of, any Project Document (including the form of any Project Document in the Agreed Form) or Financing Agre~ to wnicli'lti'S i party (subject to Clause 1.S(b) (Y~h.s 'to 'the Project Documents) and Clause 38 (Amendments to'~e

..Financing Agreements) without the Approval of the Authority's Representative;

(c) in relation to the PPP Co only, enter into any agreements other than the Financing Agreements:

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(i] to raise additional or substitute finance or financial facilities of any description; or

(ii) relating to the rescheduling of its indebtedness or the re-financing of the Project,

unless the relevant document or proposed course of action has received the Approval of the Authority's Representative.

8.5 Variations to the Project Documents

(a)

If at any time any Project Document is terminated, an amendment or variation is made to any Project Document, the PPP Co or any Sub-Contractor is granted a waiver or release of any of the obligations under any Project Document, any agreement is entered into which would affect the interpretation or application of any of the Project Documents, or any Financing Agreement is entered into, then the PPP Co shall deliver to the Authority a certified copy of each such document or (so far as it is not in writing) a true and complete record thereof in writing within 20 (twenty) Working Days of the date of its execution or creation, certified as a true copy by an officer of the PPP Co.

(b) The PPP Co shall be entitled after the Commencement Date to take any action contemplated in Clause 37 (Refinancing) and Clause 38 (Amendments to the Financing Agreements) in relation to the Financing Agreements.

8.6 Complaints

The PPP Co shall deal with any complaints received (whether received orally or in writing, and whether from a User or others) relating to or in connection with the Project in a prompt, courteous and efficient manner in accordance with Schedule 10 (Liaison Procedures).

9. INFORMATION TO BE PROVIDED BY THE AUTHORITY

The Authority shall provide to the PPP Co such information within its possession or control with respect to the Project as the PPP Co may reasonably request to enable it to perform its obligations under this Agreement within a reasonable time following receipt of such request, provided that the Authority shall have no obligation to provide any information with respect to which it is subject to an obligation of confidentiality (whether under any Law or contract or otherwise).

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PART 5 - PROPERTY

10. LAND

10.1 Access for PPP Co

Subject to the provisions of Clause 10.2 (Duration), Clause 10.4 (Limitations) and Clause 11 (protestors and Trespassers), the Authority shall make available to the PPP Co for the periods referred to in Clause 10.2 (Duration) non-exclusive access to the Site and Shellybanks Site as shall be required from time to time for the purpose of carrying out its obligations under this Agreement in relation to the Project, in each case subject to:

(a) any rights reserved over the Shellybanks Site or any rights of public passage or access existing over any part of the Shellybanks Site from time to time;

(b)

the right of the Authority and the Authority's Representative to have access for the purpose of monitoring, inspecting and testing the Works, the Operations, the Additional Works or the Renewal Works to be carried out or being carried out by the PPP Co and for inspection of the Site and the Shellybanks Site or for any other purpose related to the carrying out of the Project or the performance by the PPP Co of its obligations pursuant to this Agreement including, without limitation, the rights of access referred to in Clause 13.4 (Access for Authority's Representative) and Clause 19.5(a) (Access);

(c) the right of any Relevant Authority (or any Relevant Authority's Representative) under any Law or Legal Requirement or pursuant to any Requirements of Relevant Authorities to have access to the Site and the Shellybanks Site including, without limitation, the rights of access referred to in Clause 19.5(b) (Access) and Clause 12.1 (Design, Construction and Operation);

(d) the terms and conditions of any Land Rights relating to the Site and Shellybanks Site affecting the Project;

(e) any restriction imposed by any Relevant Authority in discharging its statutory duties;

(f) the terms of the Necessary Consents pertaining to the Site or Shellybanks Site; and

(g) any other right of access of the Authority or any other Relevant Authority arising under this Agreement or pursuant to Law or Legal Requirement,

provided that the Authority shall not:

(a) in the case of the Site, during the Contract Period, grant to a third party any licence or other contractual interest in connection with the Site; and

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(b) in the case of the Shellybanks Site, to the date contemplated by paragraph 2.2 of Part 1 of Schedule 04 (Land Issues), grant to a third party a licence or other contractual interest in connection with the Shellybanks Site,

in each case, in a manner inconsistent with the ability of PPP Co to perform its obligations under this Agreement.

10.2 Duration

Subject to Clause 10.4 (Limitations) and Clause 32.6 (Step-In Rights), the rights of access to the Site and the Shellybanks Site given under Clause 10.1 (Access for PPP Co) shall be from the date the Authority is lawfully entitled to access the Site and the Shellybanks Site by means of the CPO Scheme or otherwise and shall continue in respect of the Facility:

(a) in the case of the Site, until the end of the Contract Period; and

(b) in the case of the Shellybanks Site, until the date contemplated by paragraph 2.2 of Part 1 of Schedule 04 (Land Issues).

lO.3 Responsibility for Site Acquisition

(a) The Authority acknowledges and agrees that, pursuant to Part 2 of Schedule 02 (Conditions Precedent), it is responsible for acquiring title to the Site and the Shellybanks Site by the Effective Longstop Date sufficient to enable the PPP Co to perform its obligations under this Agreement.

(b) The Authority shall facilitate access to the Site and the Shellybanks Site by the PPP Co on dates to be agreed by the Authority and the PPP Co for the purposes of examination and inspection prior to the Effective Date.

lOA Limitations

(a) The rights of access given under Clause 1 0.1 (Access for PPP Co) shall subsist for the purposes of carrying out the Project and for no other purpose. Any access given under Clause 10.1 (Access for PPP Co) shall be by way of licence for the particular activity only and shall not grant or be deemed to grant any legal estate or other interest in land and, for the avoidance of doubt, the PPP Co acknowledges that it shall have no freehold, leasehold or tenancy rights in the Site or the Shellybanks Site.

(b) Without prejudice to the generality of Clause lOA(a) the PPP Co shall not permit any act on the Site or the Shellybanks Site that would constitute a breach of any covenant affecting the Site or the Shellybanks Site, as the case maybe.

10.5 Access to Ancillary Sites

(a) The Authority and the Authority'S Representative shall have the right of access to the Ancillary Sites for the purpose of monitoring, inspecting and testing the Works, the Operations, the Additional Works or the Renewal Works to be carried out or being carried out by the PPP Co and for inspection

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of the Ancillary Sites or for any other purpose related to the carrying out of the Project or the performance by the PPP Co of its obligations pursuant to this Agreement.

(b) The rights of access granted pursuant to this Clause 10.5 (Access to Ancillary Sites) shall subsist for the purposes of monitoring, inspecting and witnessing testing of the Works, the Operations, the Additional Works or the Renewal Works and for no other purpose. Any access granted pursuant to this Clause 10.5 (Access to Ancillary Sites) shall be by way of licence only for the particular activity only and shall not grant or be deemed to grant any legal estate or other interest in land and, for the avoidance of doubt, the Authority acknowledges that it shall have no freehold, leasehold or tenancy rights in the Ancillary Sites.

10.6 Replacement Ancillary Sites

(a) The PPP Co shall not be entitled to replace any Ancillary Site in whole or part without the Authority's prior Approval.

(b) The Authority's prior Approval shall be obtained before:

(i) any freehold or leasehold tide of any Ancillary Site or any service agreement or other arrangement entered into in respect of any Ancillary Site is sold, assigned., varied, terminated or novated;

(ii) the replacement of any Ancillary Site is made; or

(iii) the terms of any contract for sale, lease, service agreement or other arrangement of any proposed replacement Ancillary Site are agreed or varied.

(c) In respect of any replacement Ancillary Sites, the PPP Co shall obtain the use of such replacement Ancillary Sites free from any Encumbrance or Land Right that would materially prejudice the Project by anyone or more of the following means:

(i) obtaining good and marketable freehold title for the replacement Ancillary Sites;

(ii) obtaining good and marketable leasehold title for the replacement Ancillary Sites for the remainder of the Contract Period (including options to renew for the Extension of the Contract Period) on terms reasonably acceptable to the Authority;

(iii) entering into service agreements or other arrangements with third parties for the use of the replacement Ancillary Sites for the remainder of the Contract Period (including options to renew for the Extension of the Contract Period) on terms reasonably acceptable to the Authority.

10.7 Observance by PPP Co

The PPP Co shall observe and comply with the terms and conditions of any Land

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Rights relating to the Site, the Shellybanks Site and Ancillary Sites.

10.8 Avoidance of Interference

(a) The PPP Co shall not interfere unnecessarily or improperly with:

(i) the convenience of the public; or

(ii) the access to and use and occupation of all roads and footpaths, irrespective of whether they are public or in the possession of the Authority or of others.

(b) The PPP Co shall use reasonable efforts to prevent any road or bridge from being damaged by the PPP Co's traffic to the Site, the Shellybanks Site or Ancillary Sites, such efforts to include the proper use of appropriate vehicles and access routes to the Site, the Shellybanks Site or Ancillary Sites.

(c) The PPP Co shall take all reasonable steps to protect the environment (both on and off the Site, the Shellybanks Site and Ancillary Sites) and to limit damage and nuisance to people and property resulting from pollution, noise and other effects from the PPP Co's Works and Operations pursuant to this Agreement.

10.9 Services

The PPP Co shall be responsible for the provision to the Site, the Shellybanks Site and Ancillary Sites of all electricity, water, gas, sewerage, telecommunications and other services that the PPP Co may require to carry out its obligations under this Agreement and shall pay all charges for such services relating to the PPP Co's use of the Site, the Shellybanks Site and Ancillary Sites pursuant to this Agreement

10.10 Excavation and Disposal of Materials

The PPP Co may only dispose of, excavate, extract, exploit or otherwise deal with any Site Materials:

(a)

if and to the extent that the PPP Co has the right to do so by Law or Legal Requirement or pursuant to the terms of this Agreement;

(b) if and to the extent that, in the case of excavation or extraction of Site Materials, such excavation or extraction is necessary for the purpose of constructing the Works, any works forming part of the Operations, the Additional Works or the Renewal Works pursuant to the Technical Requirements;

(c) subject to the rights of any third party, whether being rights in or to the Site Materials, Land Rights or otherwise;

(d) subject to any limitation, restriction or condition, whether pursuant to any Law, Necessary Consent or otherwise, applying to or affecting the right of the PPP Co to undertake any such disposal, excavation, extraction, exploitation or other dealing; and

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(e) subject to any instructions and notification by any Relevant Authority pursuant to Clause 12.1 (Design, Construction and Operation).

10.11 Shellybanks Site

(a) The Authority and the PPP Co hereby acknowledge that, with effect from the date contemplated by paragraph 2.2 of Part 1 of Schedule 04 (Land Issues):

(1) the Shellybanks Site will be regarded as a public road (as defined in the Roads Act, 1993) or, if it is not regarded as a public road, a right of access shall be granted to the PPP Co to use the Shellybanks Site in a manner sufficient to enable it to perform its obligations under this Agreement; and

(ii) except to the extent expressly contemplated by this Agreement, all obligations assumed by the PPP Co pursuant to this Agreement in relation to the Shellybanks Site pursuant to this Agreement shall terminate.

(b)

Prior to the date contemplated by paragraph 2.2 of Part 1 of Schedule 04 (Land Issues), the Authority shall have procured that the Shellybanks Site will be reinstated at the cost of the Authority to become a public road (as defined in the Roads Act, 1993) or a right of access shall be granted to the PPP Co to use the Shellybanks Site in a manner sufficient to enable it to perform its obligations under this Agreement.

(c)

The parties shall cooperate together to coordinate construction activities on the Site and the Shellybanks Site so as to minimise the adverse impact of works on each site on the other.

(d)

The Authority may request the PPP Co to undertake the works in respect of the Shellybanks Site referred to in Clause 10.11(b), provided that the PPP Co shall not be required to undertake such works unless and until it has agreed appropriate terms and conditions pursuant to which such works shall be undertaken.

11. PROTESTORS AND TRESPASSERS

11.1 Responsibility for Protestors and Trespassers

(a) The Authority shall not be responsible for the presence on or around or entry onto or around the Site, the Shellybanks Site and Ancillary Sites or any other interference with or affecting the Site, the Shellybanks Site and Ancillary Sites or within the vicinity of the Site, the Shellybanks Site and Ancillary Sites by or caused by, any Protestor or Trespasser nor for any act, omission or default of any such person (in any such case from the Effective Date). The presence on or around or entry onto or around the Site, the Shellybanks Site and Ancillary Sites or any other interference with or affecting the Site, the Shellybanks Site and Ancillary Sites or within the vicinity of them by or caused by any Protestor or Trespasser and any lawful or unlawful activities of any such person shall not be a breach of any obligation or warranty of the

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Authority under this Agreement.

(b) The PPP Co shall not be relieved of any requirement to carry out works forming part of the Project if the PPP Co is unable to gain access to the areas required to carry out such works as the result of the presence on or around, or entry onto or around the relevant areas of, or any other interference with or affecting the Site, the Shellybanks Site and Ancillary Sites or within the vicinity of them or the Project, of any Protestor or Trespasser or any lawful or unlawful activities of any such person (in any such case from the Effective Date), save to the extent (if at all) the same constitutes a Relief Event in which case the provisions of Clause 46 (Relief Events) shall apply.

(c) In the event that the actions of any Protestors, occurring outside of the Site, the' Shellybanks Site or Ancillary Sites or their immediate proximity, interfere with the Authority's ability to perform its obligations under this Agreement, the Authority shall not be relieved of those obligations.

11.2 PPP Co to Bear Loss

(a) As between the Authority and the PPP Co, the PPP Co shall bear, without recourse to the Authority, any Loss suffered by any person which is caused by any Protestor or Trespasser, including without limitation any damage to property, any personal injury or death, and any loss of income.

(b) For the avoidance of doubt, nothing in Clause 11.2( a) shall affect:

(i) any right of the Authority to make or recover any Claim against any Protestor or Trespasser for damage suffered by the Authority, its agents or contractors (other than the PPP Co) or sub-contractors of any tier or any employees of any of them; or

(ii) any right of the PPP Co to make or recover any Claim against any Protestor or Trespasser for damage suffered by the PPP Co.

11.3 Protestors and Trespassers

(a) The PPP Co shall not, without Approval, give directly or indirectly to any Protestor or Trespasser any inducement or compensation (monetary or otherwise), with a view to avoiding, limiting or influencing the manner of protest activities by that Protestor or Trespasser or by other Protestors or Trespassers.

(b) The PPP Co shall comply (and secure compliance by the Staff) with the requirements set out in Part 3 of Schedule 04 (Land Issues).

12. ARCHAEOLOGICAL OBJECTS

12.1 Design, Construction and Operation

(a) The PPP Co shall not restrict the access of any Relevant Authority to the Site and the Shellybanks Site at all reasonable times to carry out any archaeological surveys or inspections of the Site and the ShelIybanks SIte and,

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without limitation to Clause 10.10 (Excavation and Disposal of Materials), the PPP Co shall comply with any instructions from such Relevant Authority in respect of such archaeological surveys or inspections of the Site, the Shellybanks Site and Ancillary Sites.

(b) Except to the extent contemplated by Clause 12.4(b) (Risk Sharing), in no circumstances shall any instruction or notification of any Relevant Authority in relation to Archaeological Objects constitute an Authority Variation or PPP Co Variation.

12.2 Ownership

As between the Authority and the PPP Co, all Archaeological Objects shall be the property of the Authority.

12.3 Treatment

The PPP Co shall prevent the removal of, or damage to, any Archaeological Objects. The PPP Co shall immediately inform all Relevant Authorities of the discovery of any Archaeological Objects and await and carry out instruction from the Authority regarding the examination and treatment of the same.

12.4 Risk Sharing

(a) The PPP Co shall extend all reasonable efforts to mitigate any delays and/or increased costs caused by the discovery and removal of any Archaeological Objects including, without limitation, rearranging and re-programming construction activities. Subject to the foregoing, if discovery and removal of any Archaeological Objects results in a delay to the date on which the Contract Programme is then scheduled to complete in excess of one (1) week, the PPP Co shall notify the Authority of the delay, providing evidence of such delay and an estimate of its anticipated duration, and the Target Operational Commencement Date shall be extended by a period equal to the period of such delay.

(b) Where the PPP Co incurs costs due to the discovery and removal of Archaeological Objects in excess of 50,000 (fifty thousand) Euro, then any such reasonably incurred and properly vouched costs shall be treated as an Authority Variation in accordance with Clause 30.1 (Authority Variation).

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PART 6 - DESIGN AND CONSTRUCTION

13. DESIGN AND CONSTRUCTION

13.1 Responsibility

(a) The PPP Co shall be responsible for the Design and the Construction, which shall be carried out in accordance with the Construction Requirements, the Conceptual Design and the Certification Procedure.

(b) In the event of a breach of Clause 13.1(a), the Authority may require the PPP Co as soon as reasonably practicable, to make a submission in respect of such breach to Commercial Review, including in such submission:

(i)

a full statement of the circumstances in which such breach took place together with a full explanation of the reasons for, and the impact of, such breach and, if appropriate, for any delay in providing notification under Clause 32.2 (Notification of Performance Failure) or Clause 48.2 (Notification ofPPP Co Default);

(ii) a full statement of the measures, if any, which the PPP Co proposes to adopt and the time period within which any such measure is to be carried out in order to rectify such breach or to preclude or mitigate the consequences thereof (if any); and

(iii) if such breach relates to a variation in the design, quality or quantity of the Works, aPPP Co Notice of Variation.

(c) The Authority's Representative shall deal with a submission pursuant to Clause B.l(b) in accordance with the Commercial Review. The Authority's Representative shall in his absolute discretion be entitled to raise comments in respect of such a submission, but in deciding upon the appropriate response to such submission, the Authority's Representative shall have regard to all of the circumstances, including, without limitation:

(i) whether the breach was inadvertent on the part of the PPP Co or the relevant Principal Sub-Contractor or any person referred to under the Certification Procedure;

(ii) whether there has been culpable delay ill making the relevant submission under Clause 13.l(b); and

(iii) whether similar breaches have occurred previously and, if so, the gravity of such breaches and the measures, if any, adopted by the PPP Co to prevent their re-occurrence.

(d) For the avoidance of doubt, the procedure set out in Clause 13.1(b) shall be without prejudice to the Authority's rights against the PPP Co under this Agreement in respect of such breaches.

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(e) The PPP Co shall ensure that the Design and the Construction will in all respects comply with and meet the Technical Requirements and all other requirements of this Agreement.

(f) The PPP Co shall ensure that the Works, the Renewal Works and the works forming part of the Operations will comprise only materials and goods which will be of sound and satisfactory quality and have been manufactured or prepared in accordance with the Technical Requirements and all workmanship shall be in a proper workmanlike and careful manner in accordance with Good Industry Practice and sound construction practice applicable at the time of construction.

(g) The PPP Co shall ensure that the Design will be carried out by and under the supervision of persons that are suitably qualified and experienced and competent so to do and, in particular, have adequate previous experience of the part of the Design they are carrying out or supervising.

(h) The PPP Co will, at all times, comply with the Requirements of Relevant Authorities and any Legal Requirements.

(i) The PPP Co shall ensure that the Operations will be conducted in accordance with and shall meet the Technical Requirements, Performance Warranties and all other requirements of this Agreement.

CD The PPP Co shall ensure that the Facility and every part thereof designed and constructed in accordance with this Agreement shall be fit for the purpose for which it is intended.

(k) If the Facility is to be developed wholly or partly on the Foreshore, the PPP Co shall at its cost obtain the consent of the Minister for the Marine to such use of the Foreshore for the Project.

13.2 Certification Procedure

(a) Where there is a requirement under this Agreement for the PPP Co to make a submission under the Certification Procedure, the submission shall be dealt with in accordance with the relevant provisions of the Certification Procedure.

(b) Notwithstanding the application of the Certification Procedure, the PPP Co shall not be entitled to recover from the Authority, its respective advisers, consultants, servants, contractors and agents any Losses or Claims which may arise out of or in connection with any inadequacy, error or failure of the Disclosed Data or any matter which has been subject to the Certification Procedure and any comments made by the Authority's Representative in the course thereof. The PPP Co shall obtain from each Principal Sub-Contractor, prior to any such party carrying out any part of the Project, a waiver of liability in favour of the Authority and, if requested, its advisers, consultants, servants, contractors and agents and shall furnish same to the Authority in respect of any such Losses and Claims. The return by the Authority of any document marked Acknowledged or Acknowledged with Comments in the

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course of the Certification Procedure shall in no way relieve the PPP Co of any of its obligations under this Agreement in connection with the Project.

(c) Without limitation to the generality of Clause 13.2(a), the PPP Co shall procure that:

(i) the Design is prepared in accordance with the Construction Requirements and the Conceptual Design and shall comply with the Certification Procedure and the relevant other provisions of this Agreement;

(ii) the Construction is carried out in accordance with the Construction Requirements and the Conceptual Design, and shall comply with the Certification Procedure and the relevant other provisions of this Agreement; and

(iii) any Principal Sub-Contractor shall carry out its obligations in relation to the Design or Construction in accordance with the Construction Requirements, the Conceptual Design and shall comply with the Certification Procedure and the relevant other provisions of this Agreement.

(d) The PPP Co shan procure that the procedures referred to in the Certification Procedure are complied with by the appropriate persons referred to therein, including but not limited to the Principal Sub-Contractors, and that such persons are at all relevant times duly authorised to carry out such procedures and to sign the relevant Certificates.

(e) Without limitation to Clause 13.1 (Responsibility) and Clause 19.1 (Responsibility), any failure by the PPP Co or any of its Principal SubContractors, to fulfil its obligations under the Certification Procedure shall be a breach of the PPP Co's obligations under this Agreement.

(f) Any matter which is subject to submission under the Certification Procedure and in respect of which a Certificate has been Acknowledged pursuant to the Certification Procedure shall not be departed from otherwise than pursuant to Schedule 14 (V ariation Procedure).

(g) The PPP Co shall not commence or permit the commencement of the Construction until all relevant Certificates have been deemed Acknowledged pursuant to the Certification Procedure and all Necessary Consents required in respect of the relevant part of the Works have been obtained. Relevant Certificates, for the purposes of this Clause 13.2(g) are the Certificates referred to in Part 2 of Schedule 08 (Testing and Certification) which relate to the Design under the Certification Procedure.

(h) If the PPP Co proposes to vary or amend the Conceptual Design after the Commencement Date (other than in an insignificant manner). including making additions, omissions, substitutions, alterations in design or variations in or to the Conceptual Design, such proposal shall constitute a PPP Co

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Variation and shall be dealt with in accordance with Clause 30.2 (PPP Co Variation).

In considering whether a variation or amendment to the Conceptual Design is insignificant, regard shall be had to the aggregate or cumulative effect of other variations or amendments to the Conceptual Design that were insignificant.

(i) If the PPP Co objects to any Certificate having been Rejected by the Authority's Representative, it may refer the matter to the Disputes Resolution Procedure for determination.

13.3 Authority's Design Data

(a) Save as expressly provided in this Agreement, the PPP Co shall not seek to recover from the Authority, its advisers, consultants, servants, contractors and agents and shall indemnify its advisers, consultants, servants, contractors and agents against any Loss or Claim which may arise from the adoption, use or application by or on behalf of the PPP Co or any Principal Sub-Contractor or any other person for whom the PPP Co is responsible in the carrying out of the Project of any Design Data and other data and documents made available to it or its representatives in connection with the Project by or on behalf of the Authority, its advisers, consultants, servants, contractors and agents whether before or after the Commencement Date.

(b) If any errors, omissions, ambiguities, inconsistencies, inadequacies or other defects are found in the Design Data, such errors, omissions, ambiguities, inconsistencies, inadequacies or other defects and the Works shall be corrected at the PPP Co's cost, notwithstanding that the Design Data may have been prepared by or on behalf of the Authority.

13.4 Access for Authority's Representative

Without limitation to Clause 19.5 (Access), the PPP Co shall procure that:

(a) subject to complying with all relevant safety procedures, the Authority'S Representative shall have:

(i) unrestricted access at all reasonable times to the Site, the Shellybanks Site and the Ancillary Sites; and

(ii) on giving reasonable notice, access to any other site or workshop where materials are being manufactured or Staff are being trained for the Project,

for the purposes of general inspection and of attending any test or investigation being carried out in respect of the Project;

(b) the Authority's Representative shall have the right to attend all programmed site meetings relating to the co-ordination or safety of Works; and

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(c) there is kept on Site one copy of all main Design Data, Project Documents and other project documentation, and that the same shall, at all reasonable times, be available for inspection and use by the Authority's Representative.

13.5 PPP Co's Construction on Site

(a) The PPP Co shall confine its activities during the Construction of the Works to the Site, the Shellybanks Site, Ancillary Sites and to any additional areas (if any) which may be obtained by the PPP Co as working areas. The PPP Co shall take all necessary precautions to keep the PPP Co's plant, materials and equipment and Staff within the Site, the Shellybanks Site and Ancillary Sites and these additional areas, and to keep them off adjacent land.

(b) During the Construction of the Works, the PPP Co shall keep the Site, the Shellybanks Site and Ancillary Sites free from all unnecessary obstructions, and shall store or dispose of any PPP Co's plant, materials and equipment or surplus materials. The PPP Co shall, within a reasonable time, clear away and remove from the Site, the Shellybanks Site and Ancillary Sites any wreckage, rubbish and temporary works that are no longer required during Construction.

14. CONTRACT PROGRAMME

14.1 Contract Programme

(a) The Contract Programme sets out the timetable in which the PPP Co shall carry out activities to achieve various milestones during the Project.

(b) The PPP Co shall ensure that the Contract Programme is current at the date of this Agreement.

14.2 Variations to Contract Programme

(a) Should it appear to the Authority or the PPP Co at any time that the actual or likely progress of any major milestone does not or will not conform with the Contract Programme then, within 20 (twenty) Working Days of being so required by the Authority or (if earlier) becoming aware of the same, the PPP Co shall:

(i) submit to the Authority a report identifying the reasons for such nonconformity; and

(ii) at the same time as submitting the report in accordance with Clause 14.2(a)(i), submit to the Authority a revised Contract Programme which shall provide for the activity to be pursued diligently.

(b) Where the Contract Programme revised pursuant to Clause 14.2(a) affects the Construction Period, the revised Contract Programme shall provide for the Works to be pursued diligently in such manner as to achieve Completion as soon as practicable and provide for the Works to be commenced and pursued diligently in accordance with Clause 14.4 (Achievement of Operational Commencement Date).

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14.3 Requirements of Contract Programme

The Contract Programme and each revised Contract Programme submitted ill accordance with Clause 14.2 (Variations to Contract Programme) shall at all times:

(a) be in accordance with Good Industry Practice;

(b) satisfy the requirements of Schedule 06 (Contract Programme) and this Agreement;

(c) without prejudice to Clause 14.3(b), be in sufficient detail so as to enable the Authority to resource itself appropriately; and

(d) provide for the Works to be commenced and pursued diligently in accordance with Clause 14.4 (Achievement of Operational Commencement Date).

14.4 Achievement of Operational Commencement Date

(a) The PPP Co shall commence the Works following the Effective Date and shall thereafter diligently pursue the Works to procure that they are completed in accordance with the Contract Programme to such standard as would permit the issue of the Performance Demonstration Certificate.

(b) The PPP Co shall achieve the Operational Commencement Date by a date no later than the Operational Longstop Date.

15. INSTALLATION COMPLETION & PERFORMANCE DEMONSTRATION CERTIFICATES

15.1 Installation Completion Certificate

(a) Prior to the PPP Co carrying out the Performance Demonstration Tests on the Works, the PPP Co shall issue the Installation Completion Certificate in accordance with paragraph (b) below.

(b) 20 (twenty) Working Days prior to the date upon which the PPP Co expects the Works to be substantially complete, the PPP Co shall issue to the Authority the Installation Completion Certificate in accordance with Part 2 of Schedule 08 (Testing and Certification), together with a list of known outstanding works to be carried out prior to the commencement of the Performance Demonstration Tests.

(c) Upon receipt of the Installation Completion Certificate pursuant to paragraph (b) above, the Authority shall as soon as is reasonably practicable:

(i) meet with the PPP Co to agree a schedule for the delivery of Authority Waste for the Tuning Period;

(ii) carry out a joint inspection of the Works with the PPP Co to ascertain and confirm that all Works have been constructed in conformity with the Conceptual Design, Relevant Standards and Necessary Consents, and

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(iii) agree the list of known outstanding works to be carried out by the PPP Co prior to the commencement of the Performance Demonstration Tests.

(d) The Authority shall respond to the PPP Co's Installation Completion Certificate in accordance with paragraph 3 of Part 2 of Schedule 08 (Testing and Certification). For the avoidance of doubt, the Authority shall not be entitled to Acknowledge the Installation Completion Certificate until the Authority has completed the tasks set out in paragraph (c) above.

( e) The list of known outstanding works agreed between the parties pursuant to paragraph (c) above shall be attached to the Installation Completion Certificate that is Acknowledged by the Authority. The PPP Co shall complete any works that are outstanding at the date the Installation Completion Certificate is Acknowledged by the Authority as soon as practicable and in any event prior to the issue ofthe Readiness for Performance Demonstration Certificate.

(f) Any Dispute in regard to this Clause 15.1 (Installation Completion Certificate) shall be determined in accordance with Clause 60 (Disputes Resolution Procedure).

15.2 Performance Demonstration Certificate

(a) When the PPP Co establishes that the Facility is operating at Design Capacity, the PPP Co shall notify the Authority that the Facility is ready for Performance Demonstration Tests.

(b) When notifying the Authority in accordance with Clause IS.2(a), the PPP Co shall propose a meeting between the Authority and the PPP Co on no fewer than 5 (five) Working Days' notice to confirm that the Works are substantially completed, the Pre-Commissioning Tests have been concluded and that authorisations from Relevant Authorities have been obtained. The meeting shall be held prior to the commencement of the Performance Demonstration Tests.

(c) The PPP Co shall ensure that any Relevant Person or Relevant Authority shall be entitled to observe any Tests carried out on the Works.

(d) When the Performance Demonstration Tests have been completed and passed to demonstrate that the Works can be operated safely and as required by this Agreement, the PPP Co shall issue to the Authority a notice to that effect, together with a Test Confirmation Certificate in accordance with Part 2 of Schedule 08 (Testing and Certification).

(e) The Authority shall within 5 (five) Working Days of receipt of the PPP Co's notice pursuant to Clause IS.2( d) either:

(i) to the extent that the Authority agrees that the Performance Demonstration Tests have been completed and passed, issue the Performance Demonstration Certificate; or

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(ii) notify the PPP Co in writing that, in the Authority's opinion, the Performance Demonstration Tests have not been successful. In that event, the Authority shall state in such notice the grounds for refusing to issue the Performance Demonstration Certificate.

(f) The PPP Co shall return the Performance Demonstration Certificate referred to in Clause lS.2(e)(i) within S (five) Working Days of receipt thereof appropriately signed by the PPP Co acknowledging receipt by the PPP Co.

(g) If the Authority refuses to issue the Performance Demonstration Certificate pursuant to Clause 15 .2( e )(ii), the PPP Co shall carry out and complete all outstanding works to achieve Completion and pass the Performance Demonstration Tests, expeditiously.

(h)

If the PPP Co complies with its obligations in accordance with Clause IS.2(g), the PPP Co may give notice to the Authority that such further work has been completed. The provisions of Clause IS.2(e) shall then apply mutatis mutandis.

<, \

(i) Any Dispute in regard to a notice under Clause lS.2(e)(ii) (Performance Demonstration Certificate) shall be determined in accordance with Clause 60 (Disputes Resolution Procedure).

15.3 Operational Commencement Date

(a) As and from the Operational Commencement Date, the Facility shall be deemed Operational for the Thermal Treatment of Contract Waste.

(b) In the event of a Dispute in regard to a notice under Clause lS2(e)(ii) (performance Demonstration Certificate) being referred to the Disputes Resolution Procedure, the determination of the latest date on which the Performance Demonstration Certificate should properly have been issued under Clause IS.2(e)(i) (performance Demonstration Certificate) shall be by reference to the Disputes Resolution Procedure, and if that determination is a date earlier than the actual date of such issue the period between such dates shall be deemed to be a Compensation Event pursuant to paragraph 1 of Part 1 of Schedule 23 (Compensation Events, Relief Events and Force Majeure Events) and Clause 4S (Compensation Events) shall apply thereto.

(c) In the event of a failure by the Authority to issue the Performance Demonstration Certificate for the Works on the latest date on which it should have been issued where no notice has been served under Clause lS.2(e)(ii), without prejudice to Clause 49 (Authority Default) the period between such date and the date on which the Authority issues the Performance Demonstration Certificate shall be deemed to be a Compensation Event pursuant to paragraph 1 of Part 1 of Schedule 23 (Compensation Events, Relief Events and Force Majeure Events) and Clause 4S (Compensation Events) shall apply thereto.

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16 HEAL TH, SAFETY AND SECURITY

16.1 Responsibility for Safety and Security

(a) The PPP Co shall be responsible for the safety and security of the Works and the Facility. In particular, the PPP Co shall:

(i) throughout the Contract Period, have full regard for the safety of all persons on the Site and Ancillary Sites, whether there lawfully or not, and shall keep the Site and Ancillary Sites in an orderly state appropriate to the avoidance of danger to such persons; and

(ii) until the date contemplated by paragraph 2.2 of Part 1 of Schedule 04 (Land Issues), have full regard for the safety of all persons on the Shellybanks Site, whether there lawfully or not, and shall keep the Shellybanks Site in an orderly state appropriate to the avoidance of danger to such persons.

(b)

The Authority shall, and shall procure that its advisors, consultants, servants, contractors and agents shall, comply with any and all reasonable directions of the PPP Co of which they are notified in relation to safety and security while present on the Site, the Shellybanks Site or Ancillary Sites.

16.2 Compliance with Agreement and Health and Safety

(a) Without prejudice to Clause 16.1 (Responsibility for Safety and Security), the PPP Co shall comply (and secure compliance by its Staff and contractors or sub-contractors (of any tier» with:

(i) all Legal Requirements and Laws relating to health and safety for all aspects of the Project;

(ii) this Agreement and, in particular, the Technical Requirements ill relation to health, safety and security.

)

(b)

The PPP Co shall take all precautions necessary for the protection of itself, its Staff and contractors or Sub-Contractors (of any tier) and any other persons invited onto or otherwise:

(i) during the Contract Period, on the Site and Ancillary Sites; and

(ii) until the date contemplated by paragraph 2.2 of Part 1 of Schedule 04 (Land Issues), on the Shellybanks Site.

16.3 Construction Regulations

Without prejudice to the generality of this Clause 16 (Health, Safety and Security), the PPP Co shall observe, perform and discharge and shall procure the observance, performance and discharge of all the obligations, requirements and duties applicable under all Law and Legal Requirements in relation to health and safety in connection with the Project, including without limitation, the Construction Regulations.

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16.4 Project Supervisor

(a) The PPP Co shall nominate competent persons or organisations Approved by the Authority:

(i) to act as Project Supervisor for the Design Process;

(ii) to act as Project Supervisor for the Construction Stage; and

(iii) to act as competent person in respect of the Project pursuant to Section 17(1) of the Safety, Health and Welfare at Work Act 2005.

The PPP Co shall enter into an appointment with each of the Project Supervisor for the Design Process and the Project Supervisor for the Construction Stage (and, for the avoidance of doubt, the PPP Co and the Authority agree that the PPP Co shall be treated as the 'client' for the purposes of Regulation 6(7) of the Construction Regulations, 2006) in the form required and Approved by the Authority (the "Appointment"). The PPP Co undertakes that the Project Supervisorfor the Design Process and the Project Supervisor for the Construction Stage so nominated shall be competent to, and shall, perform the duties applicable to the role of Project Supervisor for the Design Process or the Project Supervisor for the Construction Stage, as the case may be, detailed in the Construction Regulations. If an Appointment terminates at any time before the expiry of the Contract Period, the PPP Co shall procure that a replacement Project Supervisor enters into an Appointment in accordance with the provisions of this Clause 16.4. Not more than one Project Supervisor for the Design Process and one Project Supervisor for the Construction Stage shall be appointed in respect of the Project at anyone time. For the avoidance of doubt, the Authority accepts no responsibility for delays or disruptions caused to the Project by the Project Supervisor. The PPP Co shall procure that the Authority is provided with copies of all correspondence from the Project Supervisor for the Design Process andlor the Project Supervisor for the Construction Stage at the same time as any such correspondence is provided to the PPP Co.

(b)

The PPP Co shall, subject to Clause 44.9 (Risks that Become Uninsurable), procure that its Insurances shall provide indemnity in respect of any Claim for bodily injury and/or property damage andlor professional negligence incurred by reason of the performance and/or non-performance of the functions and duties of any person nominated pursuant to this Clause 16 (Health, Safety and Security).

17. lNTELLECTUALPROPERTY

17.1 DesignData

(a) Subject to Clause 17.I(b), the PPP Co shall make available to the Authority, without charge, as required by the Authority:

(i) all materials, documents and data of any nature (including without limitation all Design Data) acquired or brought into existence in any

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manner whatsoever by the PPP Co for the purposes of the Project and which may reasonab1y be required by the Authority during the Contract Period for the purposes of exercising its rights or carrying out its duties under this Agreement or carrying out any other functions in connection with the Facility; and

(ii) all other such materials, documents and data acquired or brought into existence by third parties as may reasonably be required for the purposes referred to in Clause 17.1(a)(i).

(b) The PPP Co shall ensure that any items provided pursuant to Clause 17.1(a)

(Design Data) will not infringe any third party's copyright, moral rights, design rights, trade mark or any other intellectual property rights or any other . applicable Law.

(c) Items provided pursuant to Clause 17 .1 (a) (Design Data) may be provided in paper based or computer readable form, at the discretion of the PPP Co.

,,-.-\\

( 17.2 Licences

(a) The PPP Co:

(i) hereby grants to the Authority a perpetual, transferable, non-exclusive, royalty- free licence (carrying the right to grant sub-licences) to use for any purpose in connection with the Facility (whether during or after the Contract Period), all and any Intellectual Property which is or becomes vested in the PPP Co and to make any alterations, adaptations or additions to the Design Data, which is or becomes vested in the PPP Co;

(ii) where any Intellectual Property is vested in any of the Operator, the Contractor, the Process Designer, the Sponsors or any of their respective Associated Companies, shall procure that the terms of any licence to the PPP Co shall include either:

(A) the right of PPP Co to grant a sub-licence to the Authority (on terms as set out in Clause 17.2(a)(i) above); or

(B) the grant of a like licence to the Authority,

in each case with effect from the later of (1) the Commencement Date or (2) the date contemplated by Clause 17.2(d) (having immediate effect from the grant thereof), for any purpose in connection with the Facility (whether during or after the Contract Period); and

(iii) where any Intellectual Property is vested in any other third party (other than the Operator, the Contractor, the Process Designer, the Sponsors or any of their respective Associated Companies), shall use reasonable endeavours to procure the grant of a like licence having effect from no later than the expiry of the Contract Period to the Authority for any purpose in connection with the Facility.

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(b) The PPP Co hereby:

(i) in the circumstances contemplated by Clause 17 .2( a)(ii)(A), or

(ii) in any other circumstance and to the extent Intellectual Property is vested in the PPP Co which it is permitted to sub-licence,

grants with effect from the later of (i) the Commencement Date or (ii) the date contemplated by Clause 17.2(d) (having immediate effect from the grant thereof) a licence to use all and any Intellectual Property which is or becomes vested in the PPP Co.

(c) The Authority hereby grants to the PPP Co a non-transferable, non-exclusive, royalty- free licence (but with no right to grant sub-licences) to use (during the Contract Period only) all and any Intellectual Property, which is or becomes vested in the Authority, for any purpose relating to the Project.

(d)

With respect to Intellectual Property arising during the Contract Period the licence granted pursuant to Clause 17.2(a)(i) or Clause 17.2(a)(ii) shall take effect immediately upon the coming into existence of such Intellectual Property.

(

(e) Neither the PPP Co nor the Principal Sub-Contractors shall have any liability for the use by or on behalf of the Authority of any Intellectual Property for any purpose other than the purpose(s) for which it was procured for the Authority by the PPP Co pursuant to this Clause 17 (Intellectual Property) and as originally provided to the Authority.

17.3 Access to Data

(a) To the extent that any of the data, materials and documents referred to in this Clause 17 (Intellectual Property) including, without limitation, all Design Data are generated by or maintained on a computer or other equipment or otherwise in any machine readable format, the PPP Co shall procure for the benefit of the Authority the grant of a non-exclusive licence or SUb-licence for and supply of any relevant software or database to enable the Authority or any person authorised by the Authority to access and otherwise use such data (including, without limitation, online access and use, as applicable) for the purposes set out in this Agreement or whether during or after the Contract Period as otherwise permitted under this Agreement or following its termination. Any cost related to such procurement shall be for the account of the Authority.

(b) Within 20 (twenty) Working Days after the Commencement Date the PPP Co shall submit to the Authority's Representative for Document Review its proposals for backing-up and storage in safe custody of the data, materials and documents referred to in Clause 17.1 (Design Data) and the Authority's Representative shall only be entitled to make comments, object and require alterations or additions if the same shall not accord with Good Industry Practice. The PPP Co shall comply with the procedures as notified to the Authority's Representative. The PPP Co may vary its procedures for such

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back up and storage subject to submitting for Document Review proposals for change to the Authority's Representative.

17.4 Further Assurances

The PPP Co and the Authority each undertakes at the request of the other to execute all documents and do all acts which may be necessary to bring into effect or confirm the terms of any licence contained or referred to in Clause 17.2 (Licences).

17.5 Termination

This Clause 17 (Intellectual Property) shall survive the Termination Date irrespective of the reason for termination.

18. RELEVANT STANDARDS

18.1 Use of Standards

r~ The PPP Co shall in its discretion use any Relevant Standard.

\,~:'

18.2 Approval of Other Standards

(a) The PPP Co shall apply to the Authority's Representative for Approval to use any Other Standards for the Project, such application to be supported by sufficient information to enable to the Authority's Representative to make a decision.

(b) The Authority's Representative may request from the PPP Co any further information which the Authority's Representative may reasonably require in order to make a decision pursuant to paragraph (a) above and the PPP Co shall supply the same within 5 (five) Working Days after such request.

(c) Where a Relevant Standard is available, the Authority's Representative may, acting reasonably, consent to or refuse the use of any Other Standard for the Project.

(d) For the avoidance of doubt, failure by the Authority's Representative to respond to a request pursuant to paragraph (a) above shall be deemed a refusal of the application to use the Other Standard.

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PART 7 - OPERATIONS AND MAINTENANCE

19 OPERATIONS AND MAINTENANCE

19.1 Responsibility

From the Operational Commencement Date until the end of the Contract Period, the PPP Co shall operate and maintain the Facility and conduct the Operations in accordance with the terms of this Agreement and in such manner as to satisfy the O&M Requirements and the Certification Procedure.

19.2 Certification Procedure

(a)

For the avoidance of doubt, the obligations of the PPP Co pursuant to the provisions of Clause 13.2 (Certification Procedure) shall, where applicable, extend to the conduct of the Operations and any PPP Co Certificates issued in respect of the Operations shall be issued in accordance with the provisions of the Certification Procedure including, without limitation, the relevant provisions of Clause 13.2 (Certification Procedure).

(b) Without limitation to the generality of Clause 19.1 (Responsibility), the PPP Co shall procure that:

(i) the Operations are conducted in accordance with the O&M Requirements and shall comply with the Certification Procedure and the other relevant provisions of this Agreement; and

(ii) any other Principal Sub-Contractor shall carry out its obligations in relation to the Operations in accordance with the O&M Requirements and shall comply with the Certification Procedure and the other relevant provisions of this Agreement.

19.3 Additional Works

Any Additional Works, or works which form part of the Operations, shall be carried out in accordance with the relevant provisions of the Construction Requirements and the Certification Procedure (as if the references therein to Works were references to Additional Works or works which form part of the Operations, as the case may be) and the O&M Requirements.

19.4 Inspections

The Authority's Representative shall have:

(a) unrestricted access at all reasonable times to the Site, the Shellybanks Site and the Ancillary Sites; and

(b) on giving reasonable notice, access to any other site or workshop where materials are being manufactured or Staff are being trained for the Proj ect,

to inspect any part of the Facility or enter upon any property used by the PPP Co as training and workshops facilities.

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19.5 Access

(a) Subject to the provisions of Clause 10.1 (Access for PPP Co) and without limiting the generality of Clause 10.5 (Access to Ancillary Sites), the PPP Co shall procure that:

(i) the Authority's Representative is provided with a secure office space, furnishings, direct access to telephone and fax and other appropriate office facilities including secure computer facilities at the Site as are reasonably required by the Authority's Representative in order to perform its functions under this Agreement;

(ii) the Authority's Representative has unrestricted access to:

(A) the Site and Ancillary Sites at all reasonable times during the Contract Period in order to perform its functions under this Agreement; and

(B) the Shellybanks Site until the date contemplated by paragraph 2.2 of Part 1 of Schedule 04 (Land Issues); and

(iii) the Authority has unrestricted access to the Site and Ancillary Sites at all reasonable times during the Contract Period and the Shellybanks Site at all reasonable times until the date contemplated by paragraph 2.2 of Part 1 of Schedule 04 (Land Issues) in order:

(A) to perform any obligations or exercise any rights of the Authority under this Agreement;

(B) to fulfil any statutory functions of the Authority or a Relevant Authority; and

(C) without limitation to any other Clause of this Agreement, the Authority and the PPP Co may reasonably agree to conduct any study or trial for purposes of research initiated by the Authority.

(b) The PPP Co shall procure that any Relevant Authority or any Relevant Authority's Representative has access to the Site and Ancillary Sites during the Contract Period and the Shellybanks Site until the date contemplated by paragraph 2.2 of Part 1 of Schedule 04 (Land Issues) in order to carry out any works (including, without limitation, surveys and inspections) in accordance with any Law or Legal Requirement or to exercise any right, power, function, or duty of such Relevant Authority under any Law or Legal Requirement, subject, other than in the case of an Emergency, to reasonable notice being given. Whenever consistent with the Requirements of the Relevant Authority in carrying out such works, such access may be limited so as not unnecessarily to impede any works being carried out by the PPP Co.

19.6 Calibration and Testing

(a) Where the PPP Co is required by the Technical Requirements or any Quality

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and Environmental Documentation to carry out any calibration or test, such calibration or test shall be carried out in accordance with the following provisions of this Clause 19.6 (Calibration and Testing).

(b) Save as referred to in Clause 19 .6( c), all calibrations and tests shall be carried out by laboratories accredited by the National Accreditation Board or comparable accreditation institution for such calibrations and tests.

(c) For the avoidance of doubt, the PPP Co shall be responsible, without limitation, at its own expense for any remedial work required as a result of any failure to pass any calibration or test required in accordance with this Agreement or as a result of any laboratory not being accredited as required by this Agreement

(d) The Authority's Representative shall be entitled at its cost to confirm that the calibration of all measuring equipment used in any calibration or test required by this Agreement has been verified by an appropriately qualified, independent expert.

19.7 Annual Operations Report and Annual Operations Plan

(a) No later than 20 (twenty) Working Days after the end of each Contract Year, the PPP Co shall submit for Document Review an Annual Operations Report for the preceding year.

(b) At least 20 (twenty) Working Days prior to the commencement of each Contract Year, the PPP Co shall submit to the Authority'S Representative an Annual Operations Plan for the upcoming year. If, in the opinion of the Authority's Representative, the Annual Operations Plan materially deviates from the O&M Requirements or the provisions of Schedule 29 (Bid Proposals), as amended, the Annual Operations Plan shall be subject to the Commercial Review procedure. Otherwise, the Annual Operations Plan will be subject to Document Review.

(c)

The PPP Co shall liaise with the Authority when preparing the Annual Operations Report and Annual Operations Plan and shall provide the Authority's Representative with a substantially completed copy of the Annual Operations Report and Annual Operations Plan at least 20 (twenty) Working Days prior to the submission of the final versions of the Annual Operations Report and Annual Operations Plan to the Authority.

(d) The Annual Operations Report and Annual Operations Plan shall discuss all issues in the context of:

(i) current and proposed new legislation;

(ii) the Waste Management Plan;

(iii) the Project history and previous Annual Operations Reports;

(iv) the Annual Operations Plan for the relevant period;

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(v) changing expectations of the parties, the Users and the public; and

(vi) the PPP Co's accountability to Users and the local communities that the Facility serves.

19.8 Substantive Assets

The PPP Co shall continuously maintain, throughout the .

Cash Equivalents in the minimum aggregate amount

Euro. Such Cash and Cash Equivalents be deposited and

ill the Specified Accounts from the Operational Commencement Date and the PPP Co shall provide the Authority with statements issued by the financial institution(s) in which the Specified Accounts are maintained setting out the balance in the Specified Accounts on a monthly basis. In the event of a Refinancing involving a third party funder occurring, the Authority hereby acknowledges that such Cash and Cash Equivalents may be subject to security in favour of any such third party lenders.

", .... :",\

( 20.

PERFORMANCEACCEPTANCECERTITICATE

20.1 Readiness for Performance Acceptance Certificate

(a) 20 (twenty) Working Days prior to the date upon which the PPP Co expects the Performance Acceptance Tests to commence in accordance with paragraph 3.6 of Part 1 and Part 2 of Schedule 08 (Testing and Certification), the PPP Co shall issue to the Authority a Readiness for Performance Acceptance Certificate in accordance with Part 2 of Schedule 08 (Testing and Certi.fication).

(b) The Authority shall within 10 (ten) Working Days of receipt of the Readiness for Performance Acceptance Certificate pursuant to Clause 20.1(a) either:

(i) Acknowledge or Acknowledge with Comments the certificate; or

(ii) Reject the certificate in accordance with paragraph 3 of Part 2 of Schedule 08 (Testing and Certification).

(c) The PPP Co shall ensure that any Relevant Authority shall be entitled to observe any Tests carried out at the Facility.

(d) If the Authority Rejects the Readiness for Performance Acceptance Certificate pursuant to Clause 20. 1 (b)(ii), the PPP Co shall continue with the Operations of the Facility and shall carry out the measures required to demonstrate that the Facility is ready for the Performance Acceptance Tests to commence, expeditiously.

(e) If the PPP Co complies with its obligations in accordance with Clause 20.1(d), the PPP Co may give notice to the Authority that such further work has been completed or measures taken. The provisions of Clause 20.1(b) shall then apply mutatis mutandis, except that the Authority may not identify any new grounds for refusing Acknowledgement.

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(f) When the Performance Acceptance Tests have been completed and passed to demonstrate that the Facility performs reliably in accordance with the O&M Requirements, the PPP Co shall furnish the Authority with a notice to that effect, together with a Test Confirmation Certificate in accordance with Part 2 of Schedule 08 (Testing and Certification).

(g) Any Dispute as to whether the Performance Acceptance Tests can commence shall be determined in accordance with Clause 60 (Disputes Resolution

Procedure).'·.<''-~·*·~ - ......

"'I:.oi. f.

20.2 Performance Acceptance Certificate

(a) The Authority shall within 20 (twenty) Working Days of receipt of the PPP Co's notice pursuant to Clause 20.1(£) either:

(i) to the extent that the Authority, acting reasonably, agrees that the Performance Acceptance Tests have been completed and passed, issue the Performance Acceptance Certificate; or

(ii) notify the PPP Co that, in the Authority's reasonable opmion, the Performance Acceptance Tests have neither been completed nor passed. In that event, the Authority shall state in such notice details of the grounds for refusing to issue the Performance Acceptance Certificate and provide details of any work required in order to allow the Performance Acceptance Certificate to issue.

(b) The PPP Co shall return the Performance Acceptance Certificate referred to in Clause 20.2(a)(i) within 5 (five) Working Days of receipt thereof appropriately signed by the PPP Co acknowledging receipt by the PPP Co.

(c) If the Authority refuses to consent to the commencement of the Performance Acceptance Tests pursuant to Clause 20.2(a)(ii), the PPP Co shall carry out and complete all required work pursuant to Clause 20.2(a)(ii), expeditiously.

(d) If the PPP Co complies with its obligations in accordance with Clause 20.2(c), the PPP Co may give notice to the Authority that such further work bas been completed. The provisions of Clause 20.2(a) shall then apply mutatis mutandis except that the time limit in Clause 20.2(a) shall be 10 (ten) Working Days.

(e) In the event of a Dispute in regard to a notice under Clause 20.2(a)(ii) being referred to the Disputes Resolution Procedure, the latest date on which the Performance Acceptance Certificate should properly have been issued under Clause 20.2(a)(i) shall be determined by reference to the Disputes Resolution Procedure and, if that determination is a date earlier than the actual date of such issue the period between such dates shall be deemed to be a Compensation Event pursuant to paragraph 1 of Part 1 of Schedule 23 (Compensation Events, Relief Events and Force Majeure Events) and Clause 45 (Compensation Events) shall apply thereto.

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(f) In the event of a failure by the Authority to issue the Performance Acceptance Certificate for the Facility on the latest date on which it should have been issued where no notice has been served under Clause 20.2(a)(ii), without prejudice to Clause 49 (Authority Default), the period between such date and the date on which the Authority issues the Performance Acceptance Certificate shall be deemed to be a Compensation Event pursuant to paragraph 1 of Part 1 of Schedule 23 (Compensation Events, Relief Events and Force Majeure Events) and Clause 45 (Compensation Events) shall apply thereto.

21. AUTHORITY WASTE

21.1 Delivery of Authority Waste

(a) SUbject to Clause 21.1 (b) below during the Operational Period, the Authority shall deliver or procure the delivery of Authority Waste to the Facility for Thermal Treatment in accordance with Schedule 07 (Operations and Maintenance Requirements).

(b) During the Operational Period:

(i) the Authority shall ensure that Actual Volume of Authority Waste delivered or procured to be delivered to the Facility for Thermal Treatment in any Payment Year shall be not less than the Band 1 capacity as defined in paragraph 1.1 ( a) of Part 3 of Schedule 18 (payment and Performance); or

(ii) if the Authority fails to deliver or procure the delivery of an Actual Volume of Authority Waste in accordancewith paragraph 6.2 of Part 3 of Schedule 18 (payment and Performance) equal to or greater than the Band 1 capacity referred to in Clause 21. 1 (b)(i), the Authority shall be liable to pay an amount to the PPP Co calculated in accordance with paragraph 6.3 of Part 3 of Schedule 18 (Payment and Performance) and shall be liable to have its entitlement to the Waste Revenue Share adjusted in accordance with paragraph 6.4 of Part 3 of Schedule 18 (payment and Performance).

(c) Prior to the Operational Commencement Date, the Authority shall deliver or procure to be delivered to the Facility sufficient Authority Waste to enable the PPP Co to complete and pass the Performance Demonstration Tests.

21.2 Acceptable Waste

(a) The Authority shall use its reasonable endeavours to ensure that Authority Waste delivered or procured to be delivered to the Facility for Thermal

Treatment is Acceptable Waste. .

(b) Notwithstanding paragraph (a) above, the PPP Co shall in accordance with Schedule 07 (Operations and Maintenance Requirements) be responsible for ensuring that all Contract Waste unloaded in the Bunker is Acceptable Waste.

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21.3 Acceptance of Authority Waste

(a) Subject to Clause 21.7 (Bypass Waste), during the Operational Period, the PPP Co shall accept Authority Waste for Thermal Treatment at the Facility within the Required Capacity provided (subject to Clause 21.2(b) (Acceptable Waste» such Authority Waste is Acceptable Waste.

(b) The PPP Co shall accept and Thermally Treat all Authority Waste (which is Acceptable Waste) within the Required Capacity in priority to Third Party Waste.

(c) If the Authority delivers or procures to be delivered to the Facility Authority Waste in excess of the Required Capacity of the Facility, the PPP Co shall not be obliged to accept such excess Authority Waste.

21.4 Unacceptable Waste

(a) If the PPP Co does not accept any Authority Waste in accordance with Schedule 07 (Operations and Maintenance Requirements) on the basis that it is Unacceptable Waste, the PPP Co shall provide sufficient details of the reasons for such rejection.

(b) If any Authority Waste is not accepted in accordance with Clause 21.4(a), the Authority shall ensure that such Authority Waste is removed from the Site, the Shellybanks Site or Ancillary Sites in accordance with Schedule 07 (Operations and Maintenance Requirements).

(c) For the avoidance of doubt, any Authority Waste rejected in accordance with Clause 21.4(a) shall not be included in the Actual Volume.

21.5 Ownership of Authority Waste

As between the Authority and the PPP Co, Authority Waste shall become and be in the ownership of the PPP Co by receipt of such Authority Waste in the Bunker.

21.6 Third Party Waste

If the PPP Co is able to Thermally Treat all Authority Waste delivered or procured to be delivered to the Facility and there is capacity to Thermally Treat additional Acceptable Waste, the PPP Co shall source Third Party Waste for Thermal Treatment at the Facility. For the avoidance of doubt, nothing in this Agreement shall be construed by the PPP Co as the Authority giving any warranty as to the availability of Third Party Waste.

21.7 Bypass Waste

(a) The PPP Co shall be continuously responsible from the Operational Commencement Date through the end of the Contract Period for accepting Authority Waste at the Facility.

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(b) When a planned Facility shut-down period will, or has the potential to, result in the Facility being unable to accept Authority Waste on a continuous basis, then the PPP Co shall:

(i) notify the Authority at least 90 (ninety) days in advance; and

(ii) to the maximum extent possible, facilitate the Authority's needs III choosing the period of the shut-down.

(c) When an unplanned Facility shut-down occurs that has the potential to result in the Facility being unable to accept Authority Waste on a continuous basis, then the PPP Co shall:

(i) notify the Authority immediately, providing the best possible estimate of when the Facility may no longer be able to accept Waste; and

(ii)

continue to accept Authority Waste for as long as possible, giving Authority Waste as much priority to use the remaining storage volume as is possible.

(d) Except in the cases of:

(i) routine maintenance operations as specified in the Annual Operations Plan which shall be dealt with in accordance with Clause 21.7(e) below;

(ii) Relief Event which shall be dealt with in accordance with Clause 46 (Relief Events);

(iii) Force Majeure Event which shall be dealt with in accordance with Clause 47 (Force Majeure Events); or

(iv) the Actual Volume of Authority Waste delivered in anyone week exceeding 150% (one-hundred fifty per cent) of the forecast of Authority Waste in respect of such week pursuant to paragraph 5. 1 of Part 3 of Schedule 18 (payment and Performance), in which case the PPP Co shall be entitled to reject any such excess Authority Waste which cannot be accepted at the Facility and the Authority shall bear all costs of removing, storing, dealing with and/or treating such excess Authority Waste, provided that the PPP Co shall have given the Authority prior notification that it anticipated (acting reasonably) that the Actual Volume of Authority Waste delivered in that week would exceed 150% (one-hundred fifty per cent) of the forecast amount in respect of such week. Any such notification:

(A) may be given at any time after the Actual Volume of Authority Waste delivered in that week exceeds 100% (one-hundred per cent) of the forecast amount in respect of such week; and

(B) shall contain details of the amount of Authority Waste that may be delivered during the remainder of the week before the Actual Volume of Authority Waste delivered in that week will

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exceed 150% (one-hundred fifty per cent) of the forecast amount in respect of such week; and

(C) shall be given before the day on which the PPP Co anticipates (acting reasonably) that the Actual Volume of Authority Waste delivered in that week will exceed 150% (one-hundred fifty per cent) of the forecast amount in respect of such week;

the PPP Co shall:

(i) use its best endeavours to remedy immediately any situation, defect or problems at the Facility which have caused Bypass Waste to arise as referred to in the notice pursuant to Clause 21.7(b)(i) (Bypass Waste); and

(ii) bear all costs of dealing with and treating such Bypass Waste ill accordance with Clause 21.3 (Acceptance of Authority Waste).

(e)

During any routine maintenance operations as specified in the Annual Operations Plan during the Operational Period, the PPP Co shall continue to accept Authority Waste at the Facility in accordance with Clause 21.3(a) (Acceptance of Authority Waste) and such Authority Waste shall be included in the Actual Volume.

(f) Bypass Waste Volume (including Bypass Waste arising from a Relief Event or Force Majeure Event but excluding any Authority Waste that the PPP Co has rejected in accordance with Clause 21.7(d)(iv) (Bypass Waste» that the PPP Co is unable to accept shall be calculated in accordance with paragraph 4.7 of Schedule 07 (Operation and Maintenance Requirements). For the avoidance of doubt Bypass Waste Volume shall be added to the Actual Volume to establish that the Authority has delivered or procured to be delivered Authority Waste in accordance with Clause 21.1 (b) (Delivery of Authority Waste).

(g) Nothing in this Clause 21.7 (Bypass Waste) shall affect any entitlement of the Authority to make deductions to any Baseline Payment or any other deductions in relation to Bypass Waste as a result of the operation of Schedule 18 (payment and Performance) during the period in which the PPP Co is unable to accept Authority Waste in accordance with Clause 2L3(a) (Acceptance of Authority Waste).

(h) As between the Authority and the PPP Co, any Bypass Waste that is redirected away from the Facility shall remain in the ownership of the Authority.

21. 8 Forecasts of Authority Waste

Without prejudice to Clauses 21.7(d)(iv) and 21.7(f), in the event that the amount of Authority Waste delivered to the Facility differs from the amount contemplated by the forecasts prepared pursuant to paragraph 5.1 of Part 3 of Schedule 18 (payment and Performance), it is acknowledged by the Authority and the PPP Co that the Authority shall be liable to pay the Variation Surcharge to the extent contemplated by paragraph

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2.1 of Part 3 of Schedule 18 (payment and Performance) but shall have no other liability pursuant to this Agreement in connection with, or arising from, such incorrect forecasts.

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PART 8 - RELATIONSHIPS, MONITORING AND THIRD PARTIES

22. REPRESENTATIVES

22.1 The Authority's Representative

(a) The Authority has appointed or will appoint the Authority's Representative to act as its agent in relation to the Project and as otherwise set out in this Agreement. The Authority's Representative shall exercise the functions set out in Schedule 09 (Representatives), such other functions as are set out in this Agreement, and those other functions in respect of this Agreement which the Authority may notify to the PPP Co from time to time.

(b) During any period when there is no Authority'S Representative, the Authority shall carry out the functions that would otherwise be performed by the Authority's Representative.

(c) Except as expressly stated in this Agreement, the Authority's Representative shall not have any authority to relieve the PPP Co of any of its obligations under this Agreement.

(d) Except as notified by the Authority to the PPP Co in writing, the PPP Co shall be entitled to treat any act of the Authority's Representative which is authorised by this Agreement as being expressly authorised by the Authority, and the PPP Co shall not be required to determine whether an express authority has in fact been given.

(e) Any decision by the Authority's Representative is specific to the circumstances to which it relates, and shall not be construed as binding on, or limiting any other decision to be made by the Authority's Representative, in the same or similar circumstances or otherwise.

(f) Subject to Clause 62 (Confidentiality), the Authority's Representative shall be entitled to consult any third party he considers appropriate in connection with the discharge of his duties in relation to this Agreement.

(g) The Authority's Representative shall be entitled to consult employees of the PPP Co at reasonable times having due regard for their functions and obligations of employment and for the management structure of the PPP Co, including advising any duty manager of his presence on Site.

(h) The Authority'S Representative may from time to time appoint any person to act on behalf of the Authority's Representative either generally in respect of this Agreement or specifically in respect of any particular Clauses and any act of any such person within the scope of their authority shall for the purposes of this Agreement constitute an act of the Authority's Representative. The Authority's Representative shall give prior notice of any such authorisation to the PPP Co. Such authorisation shall continue in force until such time as the Authority'S Representative shall notify the PPP Co that the same is determined.

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22.2 PPP Co's Representative

(a) The PPP Co shall appoint a competent and suitably qualified person to act as its agent in connection with this Agreement and such person shall be the PPP Co's Representative.

(b) The PPP Co's Representative shall have full authority to act on behalf of the PPP Co for all purposes of this Agreement. The Authority and the Authority's Representative shall be entitled to treat any act of the PPP Co's Representative in connection with this Agreement as being expressly authorised by the PPP Co, and the Authority and the Authority's Representative shall not be required to determine whether any express authority has in fact been given.

(c) In the event that the PPP Co has received a Warning Notice and/or a Persistent Breach Notice, and the Authority determines, in its reasonable opinion, that the PPP Co's Representative is not performing his or her obligations under this Agreement satisfactorily, the Authority shall notify the PPP Co in writing and the PPP Co shall terminate the appointment of the PPP Co's Representative as soon as reasonably practicable.

22.3 Change of Representatives

(a) The Authority may, at any time by notice to the PPP Co, terminate the appointment of the Authority's Representative or appoint one or more substitute Authority's Representatives. Any such notice shall specify the date on which such termination or substitution shall have effect, which date shall, other than in the case of an Emergency, be such as will not cause serious inconvenience to the PPP Co in the execution of its obligations hereunder.

(b)

The PPP Co may, at any time by notice to the Authority, terminate the appointment of the PPP Co's Representative or appoint one or more substitute PPP Co's Representatives. Any such notice shall specify the date on which such termination or substitution shall have effect, which date shall, other than in the case of an Emergency, be such as will not cause serious inconvenience to the Authority in the execution of its obligations hereunder.

)

23. LIAISON PROCEDURES

23.1 Liaison

(a) As soon as practicable and in any event prior to the expiry of 3 (three) months after the Commencement Date the PPP Co shall submit to the Authority draft Liaison Procedures prepared in accordance with the provisions of Schedule 10 (Liaison Procedures).

(b) The PPP Co shall consult with the Authority in the preparation of such draft Liaison Procedures. To the extent that the Authority comments on the draft, the PPP Co shall take into consideration and apply those reasonable comments of the Authority where possible. On the parties agreeing the contents of the draft it will constitute the Liaison Procedures.

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(c) Whenever the PPP Co is required by this Agreement to take any action that requires liaison or communication with the Authority, Relevant Authorities, Relevant Persons or Interested Parties, it shall take such action in accordance with the procedures set out in or agreed in accordance with the provisions of Schedule 10 (Liaison Procedures).

(d) Notwithstanding any other provision of this Agreement, the PPP Co shall be entitled to take (at its own cost) such steps as may be necessary in an Emergency for the protection of the public, the environment or the Users.

(e) As part of the Liaison Procedures, the PPP Co shall establish with the Authority a procedure for the communication of the matters referred to in Clause 24.4 (Applications, Appeals, Directions and Objections).

23.2 Third Parties

(a)

The Authority shall be responsible for liaising with Interested Parties in accordance with Schedule 10 (Liaison Procedures) and the PPP Co shall use its reasonable endeavours to assist the Authority in such dealings.

(

(b) Without limitation to Clause 43.3 (Authority's Indemnities), the PPP Co shall be responsible for consulting and liaising with Relevant Persons and Relevant Authorities in accordance with Schedule 10 (Liaison Procedures).

24. CONSENTS AND APPROVALS

24.1 Commercial Review

(a) Any proposed document or proposed course of action on the part of the PPP Co which is not subject to the Certification Procedure and which, under the terms of this Agreement, is required to be submitted for Commercial Review shall be dealt with in accordance with the provisions of paragraph 2 of Schedule 09 (Representatives).

(b) Without limitation to Clause 24.2 (Effect of Consents, Approvals and Inspections), notwithstanding the application of the Commercial Review, the PPP Co shall not be entitled to recover from the Authority any Losses or Claims which may arise out of or in connection with any inadequacy, error or failure of any matter which has been subject to the Commercial Review and any comments made by the Authority's Representative in the course thereof. The PPP Co shall obtain from the Principal Sub-Contractors, prior to any such party carrying out any part of the Project, waivers of liability in favour of the Authority and the Authority's Representative in respect of any such Losses and Claims. No comments or absence of comments on any matter in the course of the Commercial Review shall relieve the PPP Co of any of its obligations under this Agreement in connection with the Project.

24.2 Effect of Consents, Approvals and Inspections

(a) Neither the giving of any Approval, knowledge of the terms of any agreement or document (including without limitation the Project Documents), nor the review of any document or course of action pursuant to the Certification

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Procedure or Commercial Review by or on behalf of the Authority, or the Authority's Representative shall relieve the PPP Co of any of its obligations under this Agreement or of its duty to ensure the correctness, accuracy or suitability of the matter or thing which is the subject of the Approval, knowledge or review under the Certification Procedure or Commercial Review.

(b) Without limitation to Clause 24.2(a), no examination or lack of examination by the Authority or the Authority's Representative of the PPP Co's drawings, documents, calculations, or details relating to the Project or otherwise nor any comment, rejection or Approval expressed by such person in regard thereto, either with or without modifications, shall in any respect relieve or absolve the PPP Co from any obligations or liability under or in connection with this Agreement whether in relation to accuracy, safety, suitability, adequacy of performance or practicality of its design or howsoever otherwise arising.

(c)

Without limitation to Clause 24.2(a), notwithstanding any inspection by the Authority or the Authority's Representative under this Agreement or the failure of the Authority or the Authority's Representative to make any inspection under this Agreement, the PPP Co's responsibility under this Agreement shall not be relieved or absolved or otherwise modified.

(d) Any Approval shall be final; subject only to being opened up, reviewed or revised:

(i) if errors or further relevant facts are revealed after the Approval has been given; or

(ii) in accordance with Schedule 28 (Disputes Resolution Procedure).

(e) Without prejudice to the preceding provisions of this Clause 24.2 (Effect of Consents, Approvals and Inspections), any Approval, endorsement, decision, opinion, instruction, notice, statement of objection, finding, determination, requirement, or certificate of the Authority or the Authority's Representative and any determination of a Binding Conciliator shall be final, subject to the exercise by either party of any rights of objection under this Agreement and to the terms of the Disputes Resolution Procedure.

24.3 Withdrawal of Approval

Without prejudice to Clause 24.2 (Effect of Consents, Approvals and Inspections), which shall apply whether or not an Approval is withdrawn under this Clause 24.3 (Withdrawal of Approval), an Approval may be withdrawn if it has been given:

(a) on the basis of materially inaccurate or misleading facts, information or calculations provided to the Authority or the Authority's Representative or the Relevant Authority'S Representative by the PPP Co or any of its Staff and such Approval would not have been given if such facts, information or calculations had been accurate; or

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(b) on the basis of inaccurate or misleading facts, information or calculations at such time having been given to the Authority, Authority's Representative or the Relevant Authority's Representative and:

(i) such facts, information or calculations were negligently prepared by the PPP Co (determined by reference to the standard of a reasonably experienced and competent operator operating a thermal treatment plant similar to the Facility) and such Approval would not have been given if such facts, information or calculations had been accurate; or

(ii) to the extent the PPP Co has wilfully withheld or not disclosed facts, information or calculations affecting the facts, information or calculations provided.

24.4 Applications, Appeals, Directions and Objections

(a) In relation to:

(i)

an Application, the PPP Co shall assemble all requisite documentation to support and explain the relevant Application and shall prepare a recommendation (if requested by the Authority) in respect of:

(A) any terms and conditions to be attached to any consent to the Application (if relevant);

(B) the merits of the relevant Application, and submit the same to the Authority; and

upon the Authority (acting reasonably) granting or refusing any Application, the PPP Co shall upon notice from the Authority take all necessary steps to give effect to any such grant or refusal and comply with the terms thereof;

(ii) any proceedings commenced by a third party relating to any decision made or condition imposed on an Application (an "Appeal"), the PPP Co shall assemble all requisite documentation and evidence to defend the Appeal and shall prepare a recommendation in respect of the merits of the relevant Appeal and submit the same to the Authority;

(iii) any power to carry out any works on the Facility by or on behalf of the Authority and to recover the expenses from any third party, the PPP Co shall assemble all relevant documentation and evidence necessary to explain why. the said works should be carried out and prepare a recommendation as to how the said expenses should be recovered;

(iv) any requirement for a notice or a direction to a third party which is required by Legal Requirement to be made by or on behalf of the Authority (a "Direction"), the PPP Co shall assemble all requisite documentation to support and explain the Direction and prepare a recommendation (if requested by the Authority) as to whether the Direction should be made and the terms thereof. Upon the Authority

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making a Direction the PPP Co shall serve the Direction on the relevant third party on behalf of the Authority;

(v) any power to manage, maintain or provide facilities on any part of the Facility by or on behalf of the Authority, the PPP Co shall prepare recommendations to the Authority as and when required by the Authority in respect of the exercise of the aforementioned powers in relation to the Facility; and

(vi) the right of the Authority in relation to the Facility to object to a proposed course of action by a third party ("Objection"), the PPP Co shall assemble all requisite documentation and evidence in relation to the Objection and prepare a recommendation (if requested by the Authority) in relation to the Objection and submit the same to the Authority.

The PPP Co shall deal with all matters relating to its obligations pursuant to this Clause 24.4 (Applications, Appeals, Directions and Objections) in a timely and expeditious manner so as to ensure, to the extent that it is within its power to do so, that the Authority is able to discharge or exercise any relevant duty, power or discretion within the time required by Law or Legal Requirement.

(b)

(c) In carrying out its services pursuant to this Clause 24.4 (Applications, Appeals, Directions and Objections), the PPP Co shall not do any of the following:

(i)
(li)
(iii)
(iv)
,} (v)
(vi)
(vii) contract with,

enter into binding commitments with,

compromise with,

give a notice of intention to proceed to,

impose obligations upon,

respond to any Application from or Appeal by,

issue any Direction to or seek to recover costs from, or

(viii) carry out works affecting,

any third party without, in each case, prior Approval.

(d) For the purposes of this Clause 24.4 (Applications, Appeals, Directions and Objections), Approval may be given from time to time either in terms relating to a particular matter or upon terms relating to particular classes of such matters.

(e) Actions taken by the PPP Co pursuant to this Clause 24.4 (Applications, Appeals, Directions and Objections) shall not in any way limit or fetter the

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absolute discretion of the Authority in the discharge or exercise of its duties or powers. The decision of the Authority on the merits of any recommendations made by the PPP Co pursuant to this Clause 24.4 (Applications, Appeals, Directions and Objections) shall not be subject to review under the Disputes Resolution Procedure.

(f) For the avoidance of doubt, in relation to this Clause 24.4 (Applications, Appeals, Directions and Objections), the Authority's duties or powers are those of a statutory authority.

25. QUALITY AND ENVIRONMENTAL MANAGEMENT

25.1 Quality and Environmental Management Systems and Documentation

(a) The PPP Co shall procure that all aspects of the Project are subject to the Quality and Environmental Management Systems that comply with the provisions of this Clause 25 (Quality and Environmental Management). The PPP Co shall procure that the Quality and Environmental Management Systems are complied with by its Staff, at all times during the Contract Period.

(b) The Quality and Environmental Management Systems referred to in Clause 25.1(a) shall comply with:

(i) the Relevant Standards;

(ii) the Technical Requirements; and

(iii) the other provisions of this Agreement,

and shall be reflected in appropriate Quality and Environmental Documentation which complies with the requirements set out in Schedule 11 (Quality Management) and Schedule 12 (Environmental Management).

(c) The PPP Co shall not commence or permit the commencement of any aspect of the Project before those parts of the Quality and Environmental Documentation which concern such aspect of the Project have been submitted to the Authority for Document Review.

(d) The PPP Co shall implement and procure that the Principal Sub-Contractors and any other party contracting with the PPP Co implements their relevant Quality and Environmental Documentation.

(e) Where any aspect of the Project is performed by more than one contractor or sub-contractor, then the provisions of this Clause 25 (Quality and Environmental Management) shall apply in respect of each of such contractors or sub-contractors.

(f) The PPP Co shall submit to the Authority's Representative any proposed changes or additions to or revisions of any of the Quality and Environmental Documentation. If, in the opinion of the Authority's Representative, such changes, additions or revisions constitute a material deviation from the Quality and Environmental Documentation previously in effect in a manner

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that would lower the quality and environmental management standards for the Project, then such proposal shall be subject to Commercial Review and no such changes, additions or revisions shall be given effect until such a submission is Approved.

(g) Without limitation to the generality of Clause 25.1(£), the PPP Co shall from time to time submit to the Authority's Representative in accordance with the Document Review procedure any changes to any of the Quality and Environmental Documentation required for such documentation to continue to reflect Quality and Environmental Management Systems which comply with the requirements set out in Clause 25.1(b).

25.2

Additional Information

Notwithstanding any other provision of this Clause 25 (Quality and Environmental Management), the PPP Co shall provide to the Authority such information as the Authority may reasonably require to demonstrate compliance with this Clause 25 (Quality and Environmental Management) and the provisions of Schedule 11 (Quality Management) andSchedule 12 (Environmental Management).

25.3

PPP Co Quality and Environmental Manager

The PPP Co shall at all times, employ a person who shall, irrespective of his other responsibilities, have defined authority for ensuring the establishment and maintenance of the PPP Co's Quality and Environmental Management Systems and for procuring compliance with all other Quality and Environmental Management Systems required by this Agreement and for reporting on the performance of the PPP Co's Quality and Environmental Management Systems and on the performance of all other Quality and Environmental Management Systems relevant to the Project (the "ppp Co Quality and Environmental Manager"). The identity of the PPP Co Quality and Environmental Manager (and any replacement) and his job specification and responsibilities shall be subject to Approval of the Authority. Without limitation to the foregoing, the job specification and responsibilities of the PPP Co Quality and Environmental Manager shall include:

(a) ensuring the effective operation of the PPP Co's Quality and Environmental Management Systems;

(b) auditing the PPP Co's QUality and Environmental Management Systems and all other Quality and Environmental Management Systems required by Clause 25.1(a) (Quality and Environmental Management Systems and Documentation) at regular intervals and reporting the findings of such audits to the Authority's Representative;

(c) reviewing all Quality and Environmental Management Systems required by Clause 25.1(a) (Quality and Environmental Management Systems and Documentation) at intervals agreed with the Authority to ensure their continued suitability and effectiveness;

(d) liaising with the Authority's Representative on all matters relating to quality and environmental management; and

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(e) ensuring that relevant quality records are retained for the retention periods required by Clause 27 (Records).

25.4 Quality Monitoring

Without limitation to Clause 32 (Monitoring of Performance), the Authority may carry out audits of all Quality and Environmental Documentation including all the Quality and Environmental Management Systems required by Clause 25.1(a) (Quality and Environmental Management Systems and Documentation) at any time and may carry out other periodic monitoring, spot checks and auditing of such Quality and Environmental Management Systems.

26. REPORTS AND PLANS

26.1 Required Reports and Plans

The PPP Co shall submit to the Authority's Representative the Reports and Plans, in such numbers as provided therein, which Reports and Plans shall, at the Authority's Representative's request, be accompanied by a copy of such Report and Plan or any part thereof in digital format on computer diskette or CD ROM or other electronic storage device in such form and compatible with such software system as the Authority's Representative shall reasonably require.

26.2 Form

The form of the Reports and Plans shall be compiled in an Agreed Form.

26.3 Further Information

The PPP Co shall at any time and from time to time at its own cost provide to the Authority's Representative such information (including any copy correspondence) with respect to the Project as the Authority's Representative may reasonably require.

26.4 Objections to Reports and Plans

(a) If the Authority's Representative considers that any Report and/or Plan either has not been compiled in accordance with the provisions of this Agreement or has been based on erroneous information or data, then he may serve a notice to that effect on the PPP Co within 20 (twenty) Working Days of receipt of such Report and/or Plan objecting to such Report and/or Plan.

(b) If any such objection has not been resolved by agreement between the Authority's Representative and the PPP Co within 15 (fifteen) Working Days after the service of such notice, then either of them may refer the matter to the Disputes Resolution Procedu;e.

26.5 Revisions to Reports and Plans

If the resolution (whether by agreement or determination under the Disputes Resolution Procedure) of any objection made pursuant to Clause 26.4(a) (Objections to Reports and Plans) requires any revision or adjustment to any Report and/or Plan, then the PPP Co shall, as soon as practicable, issue revised versions of each affected

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Report andlor Plan and such revised Report and/or Plan shall for all purposes of this Agreement take the place of the original Report and/or Plan.

26.6 Access and Copies

(a) The PPP Co shall procure that the Authority's Representative has unrestricted access, at all reasonable times and on reasonable notice, to all Reports and Plans of the PPP Co, whether in electronic or paper form.

(b) The Authority and the Authority's Representative shall be entitled to take copies of all Reports and Plans at the PPP Co's cost and for that purpose to use such copying facilities as are maintained at the place where the Reports and Plans are kept.

26.7 Loss and Claims

(a)

Neither the right of the Authority to object to any Report and/or Plan pursuant to Clause 26.4 (Objections to Reports and Plansjnor the review of any Report and/or Plan by or on behalf of the Authority, or the Authority's Representative shall relieve the PPP Co of its duty to ensure the correctness, accuracy or suitability of the matter or thing which is the subject of the Report and/or Plan.

(b) Notwithstanding the Authority has not raised any objections to any Report and/or Plan pursuant to Clause 26.4 (Objections to Reports and Plans), the Authority shall be entitled to recover from the PPP Co any Losses or Claims which may arise out of or in connection with any inadequacy, error or failure of any matter which has been subject of the Report and/or Plan and upon which the Authority has relied.

26.8 Oireachtas Questions and Issues

(a) Without prejudice to Clause 26.3 (Further Information), the PPP Co shall, at its own cost and within the timescale from time to time prescribed by the Authority to ensure compliance with all relevant procedures:

(i) provide any information within the possession of the PPP Co or any of its directors, an Associated Company of the PPP Co or Principal SubContractor in relation to the Project; and

(ii) to the extent the information requested does not relate to the Project:

(A) and such information is within the possession of the PPP Co, provide such information;

(B) and to the extent such information is not within the possession of the PPP Co, use all reasonable endeavours to provide any information within the possession of its directors, an Associated Company of the PPP Co or Principal SubContractor,

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in each case contemplated by this Clause 26.8(a)(ii) subject to any obligations of confidentiality to which such information may be subject,

which, in each case, is requested by the Authority in relation to its statements to or responses to questions or issues raised by or on behalf of the Oireachtas, or any member thereof or the Comptroller and Auditor General.

(b) Notwithstanding the provisions of Clause 62 (Confidentiality), the Authority shall be entitled to disclose in the course of carrying out its public functions any information to which Clause 26.8(a) applies to the extent that it is required to do so by Laws or Legal Requirements and shall not be obliged to keep any such information confidentiaL

26.9 Development Control Advice

Without prejudice to Clause 26.3 (Further Information), the PPP Co shall, upon request of the Authority, consider and provide advice and recommendations to the Authority in respect of all development proposals which might in the opinion of the Authority have a safety or traffic impact upon that part of Facility or Works located on the Site or, until the date contemplated by paragraph 2.2 of Part 1 of Schedule 04 (Land Issues), the Shellybanks Site.

27. RECORDS

27.1 Required Records

(a) The PPP Co shall maintain and update the Records.

(b) The Authority shall be entitled, at its own cost, within 180 (one hundred and eighty) days after the Commencement Date to deliver up to the PPP Co the existing records of the Authority (or copies thereof) in respect of the Facility (or any part thereof). In such event, the PPP Co shall retain such records in safe storage at its own cost and such records shall thereafter be treated for all purposes as though they were part of the Records.

27.2 Audit

The Records shall be kept in good order and in such form as to be capable of audit (including, without limitation, by electronic means) by the Authority's Representative. The PPP Co shall make such Records available for inspection by or on behalf of the Authority and the Authority's Representative at all reasonable times.

27.3 Access and Copies

(a) The PPP Co shall procure that the Authority'S Representative has unrestricted access, at all reasonable times and on reasonable notice, to all Records of the PPP Co, whether in electronic or paper form.

(b) The Authority and the Authority's Representative shall be entitled to take copies of all Records at the PPP Co's cost and for that purpose to use such copying facilities as are maintained at the place where the Records are kept.

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27.4 Retention of Records

(a) Without prejudice to any Legal Requirement, all Records shall be retained for no less than the period specified in respect of such Records in Part 2 of Schedule 13 (Reports and Records) or, if no such period is specified, a period of 7 (seven) years after the end of the Contract Year to which such Records relate.

(b) Where the period for the retention of any Record (as set out against the relevant class of Records in Part 2 of Schedule 13 (Reports and Records)) has expired, then the PPP Co shall notify the Authority as to what it intends to do with such Records. If it intends to dispose of them or subsequently decides to dispose of them, the PPP Co shall notify the Authority and, if the Authority shall within 40 (forty) days of such notice elect to receive those Records or any part of them, the PPP Co, at its own cost, shall deliver up such Records to the Authority in the manner and at such location as the Authority shall reasonably specify.

(c)

At the end of the Contract Period, the PPP Co shall, at its own cost, deliver up to the Authority, in the manner and at such location as the Authority shall reasonably specify, all the Records which were in existence at the end of the Contract Period (or, where those Records are required by statute to remain with the PPP Co, copies thereof) or such part of the Records as the Authority may by notice to the PPP Co specify. The Authority shall make available to the PPP Co all the Records the PPP Co delivers up pursuant to this Clause 27.4(c), subject to reasonable notice.

(d) The PPP Co shall retain in safe storage at a location to be identified by the PPP Co and agreed by the Authority's Representative for a period of not less than 15 (fifteen) years following the end of the Contract Period all such Records as are referred to in Clause 27.4(c) which the Authority does not require to be delivered up to it. The costs of retaining those records in safe storage shall be borne:

(i) by the PPP Co, in the case of termination as a result of a PPP Co Default;

(ii) by the Authority, in the case of termination as a result of an Authority Default; and

(iii) in cases other than those governed by Clause 27.4(d)(i) and Clause 27.4(d)(ii), by the PPP Co and the Authority in equal proportions.

27.5 Computer Records

To the extent that the Records of the PPP Co are to be created or maintained on a computer or other electronic storage device, then the PPP Co shall agree with the Authority's Representative a procedure for back-up and adjacent storage for copies of such Records and shall adhere to such agreed procedure and shall cause the Principal Sub-Contractor(s) and its or their sub-contractors to implement and adhere to such agreed procedure.

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28. CUSTODY OF FINANCIAL MODEL

28.1 Custody Arrangements

(a) Immediately on execution of this Agreement, two copies of the Base Case Financial Model and two copies of the Financial Model CD-ROM shall be lodged by the PPP Co (after verification of the identity of the Financial Model on behalf of the Authority) with the Custody Holder to be held in custody upon the terms set out in the Custody Agreement. The parties shall agree a substitute custodian in the event that such person ceases to act as custodian.

(b) The PPP Co shall promptly lodge with the Custody Holder (or the substitute custodian) two copies of any Revised Financial Model in accordance with the terms of this Agreement, to be held in custody upon the terms set out in the Custody Agreement.

28.2 Costs

The Authority shall meet the cost of these custody arrangements in the first instance and the Authority shan be reimbursed one half of such costs by the PPP Co on demand.

(

29. ANNUAL ACCOUNTS

The Annual Accounts prepared for the purposes of the audited accounts of the PPP Co for the relevant period, shall be consistent with accounting principles generally accepted and applied in Ireland from time to time, provided that the bases and policies applied by the PPP Co in preparing the Annual Accounts shall be adjusted so far as necessary to take account of the fo llowing matters:

(a) any management, administration or like charge made by the PPP Co, save for such charges as have been agreed in writing between the PPP Co and the Authority's Representative shall not be deducted (and in this Clause 29 "PPP Co" shall where the context perm.its be deemed to include any Holding Company from time to time of the PPP Co and/or any Subsidiary from time to time of the PPP Co or of any such Holding Company);

(b) any costs or expenses incurred in complying with any financial reporting or other similar requirements of the PPP Co, to the extent such reporting or other similar requirements are more onerous than those to which a company of the nature and size of and carrying on a business similar in all material respects to the PPP Co would normally adhere shall not be deducted;

( c) the fees, remuneration and pension contributions of any director of officer of the PPP Co, not being a full-time employee, shall not be deducted unless such payment is properly related to and a fair and reasonable sum in respect of services provided by such director or officer;

(d) any action taken by the PPP Co to artificially lower the actual profits so as to reduce or avoid the Excess Profit Payment shall be disregarded;

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(e) in respect of any transaction between the PPP Co and any Associated Company which is not at arm's length, there shall be substituted terms which are at arm's length and "transaction" shall include without limitation:

(i) the lending or borrowing of money, and/or being party to any bank netting arrangement for the purposes of calculating interest;

(ii) the payment of remuneration or fees to any person who does not work full-time on the affairs of the PPP Co; and

(iii) the granting of assistance and facilities, including the secondment of employees and the sharing or leasing of premises;

(f) any expenses for which any Associated Company other than the PPP Co is liable but which are gratuitously met by the PPP Co shall be excluded; and

(g) any other adjustment as may be agreed in writing between the Authority and thePPP Co.

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PART9-CHANGE

30. VARIATION PROCEDURE

30.1 Authority Variation

Part 1 of Schedule 14 (Variation Procedure) shall have effect in respect of any Authority Variation during the Contract Period and Parts 3 and 6 of Schedule 14 (V ariation Procedure) shall have effect in respect of any changes to the Capital Expenditure or Operating Expenditure resulting from any Authority Variation.

30.2 PPP Co Variation

Part 4 of Schedule 14 (Variation Procedure) shall have effect in respect of any PPP Co Variation during the Contract Period.

30.3 Small Works

Part 2 of Schedule 14 (Variation Procedure) shall have effect in respect of carrying out any Small Works during the Contract Period.

\

31. CHANGES IN LAW

31.1 Qualifying Change in Law

Part 2 of Schedule 21 (Changes in Law) and Part 5 of Schedule 14 (Variation Procedure) shall have effect in respect of any Qualifying Change in Law during the Contract Period.

31.2 General Change in Law

Part 3 of Schedule 21 (Changes in Law) shall have effect in respect of any General Change in Law during the Contract Period.

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PART 10 - PAYMENT AND MONITORING

32. MONITORING OF PERFORMANCE

32.1 Monitoring by Authority's Representative and PPP Co

(a) Without limiting the Authority's Representative's rights under Clause 19.5 (Access), the PPP Co shall procure that the Authority's Representative has unrestricted access to the Facility at all reasonable times in order to monitor continuously the Operations at the Facility and compliance by the PPP Co of the PPP Co's obligations under this Agreement, including for the avoidance of doubt the Performance Criteria.

(b) The PPP Co shall monitor and accurately record at all times its performance of the Operations at the Facility as required by Schedule 13 (Reports and Records) and its compliance with the PPP Co's obligations under this Agreement, including for the avoidance of doubt the Performance Criteria.

32.2 Notification of Performance Failure

(a) The PPP Co shall immediately notify the Authority of the occurrence of any Performance Failure.

(b) If there is any Performance Failure as notified by the PPP Co or the Authority becomes aware of any Performance Failure, the Authority may serve on the PPP Co a written notice ("Performance Default Notice"):

(i) providing the PPP Co with reasonable detail of the alleged Performance Failure;

(ii) specifying the applicable Remedy Period within which the Performance Failure must be remedied; and

(iii) specifying the amount of the Performance Deduction to be allocated to thePPP Co.

(c) The applicable Remedy Period will commence from the time the Performance Default Notice is served on the PPP Co or if the Performance Failure was detected by the PPP Co's own monitoring prior to receipt of the Performance Default Notice, the Remedy Period shall commence from the time of such detection, which time shall be notified to the Authority by the PPP Co as soon as reasonably practicable.

32.3 Performance Deductions from Baseline Payment

(a) Upon the occurrence of a Performance Failure, the Authority's Representative shall be entitled to deduct from the Baseline Payment Performance Deductions in accordance with Part 5 of Schedule 18 (payment and Performance).

(b) Without prejudice to the PPP Co's obligations under Clause 32.2 (Notification of Performance Failure), the PPP Co shall notify the Authority in the relevant Monthly Operations and Gate Fee Report of the number of Performance

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Deductions (being for each month "P") incurred by the PPP Co in the previous month

(c) The entitlement of the Authority to reduce the Baseline Payment by the Performance Deductions in accordance with Part 5 of Schedule 18 (payment and Performance) is without prejudice to the Authority's other rights and entitlements under this Agreement in respect of such breach or failure to perform or a different breach or failure to perform.

(d) For the avoidance of doubt, the reduction of the Baseline Payment by the Performance Deductions in accordance with Part 5 of Schedule 18 (Payment and Performance) does not relieve the PPP Co from its obligations to remedy the relevant Performance Failure which gave rise to the Performance Deductions, unless the Authority exercises its rights under Clause 32.6 (StepIn Rights).

32.4 Increased Monitoring

If the PPP Co is allotted in excess of Euro (Indexed) in { .

Performance Deductions, in aggregate, on a 6 (six) months basis, the Authority

may (without prejudice to any other right or remedy available to the Authority) require increased monitoring of the performance of the PPP Co until such time as the PPP Co shall have demonstrated to the reasonable satisfaction of the Authority'S Representative that it will perform and is capable of performing its obligations and attaining the required levels of performance under this Agreement.

32.5 Warning Notices

(a) Without prejudice to any other right or any time the PPP Co is allotted in excess Euro (Indexed) in Performance Deductions, ill aggregate, on a rolling 6 (six) months basis, then the Authority may issue a Warning Notice to the PPP Co setting out in general terms the Performance Failure giving rise to such notice and containing a reminder to the PPP Co of the implications of such notice.

(b) Following the issue of a Warning Notice, the PPP Co shall within 14 (fourteen) days of the date of the Warning Notice, submit to the Authority an acceptable Waming Remedy Plan, which shall set out reasonable details of actions proposed by the PPP Co to avoid any repetition of the Warning Notice to which the Warning Remedy Plan relates. The Warning Remedy Plan shall specify the period of time in which the PPP Co shall complete each of the proposed actions, such period being the minimum reasonably practicable given the nature of the defaults in question.

(c) Where the PPP Co puts forward a Warning Remedy Plan in accordance with paragraph (b) above, the Authority shall have 14 (fourteen) days within which to notify the PPP Co that it does not accept such plan as being reasonable, failing which the Authority shall be deemed to have accepted such plan.

(d) Where the Authority notifies the PPP Co that it does not accept such Warmng Remedy Plan put forward i.n accordance with paragraph (b) above as being

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reasonable, either party may refer the Dispute to the Disputes Resolution Procedure with a request that an appropriate Warning Remedy Plan be determined.

(e) Where the Authority accepts the Warning Remedy Plan put forward in accordance with paragraph (b) above or where the Warning Remedy Plan has been determined by the Disputes Resolution Procedure in accordance with paragraph (d) above, the PPP Co shall implement each action set out therein within the period of time proposed by the PPP Co in the Warning Remedy Plan.

(f) For the purpose of paragraph (e) above, a Warning Remedy Plan shall have been properly implemented if:

(i) the defaults giving rise to the issue of the Warning Notice have been duly corrected; and

(ii)

all actions set out in the Warning Remedy Plan have been taken properly to~revent. a recuv~g~,e_ <i~ th~ defaults giving rise to the issue

of the Wammg Notice. i. I ~..... . ,~. Q r~J

(g) If the PPP Co fails to implement the Warning Remedy Plan in accordance with paragraph (e) above, such failure shall be a further Performance Failure and the Authority may serve a further Performance Default Notice on and allocate further Performance Deductions to the PPP Co in accordance with Part 5 of Schedule 18 (Payment and Performance).

32.6 Step-In Rights

(a)

Without prejudice to Clause 32.3 (performance Deductions from Baseline Payment) and Clause 32.6(b), if the PPP to failsito remedy the breac~'l'f obligations or failure to perform contemplated by Clause 32.2 (Notification of Performance Failure) within the Remedy Period specified in the Performance Default Notice, then the Authority may (without prejudice to any other right or remedy available to it) itself take such steps as necessary to remedy such failure or breach or engage others to take such steps, and the provisions of Clause 32.6(c) shall apply.

(b)

Notwithstanding any other provision of this Agreement and without prejudice to any other right or remedy of the Authority, upon the occurrence of any of the following:

(i) the Authority considers that a breach or failure to perform by the PPP Co of an obligation under this Agreement may create an immediate and serious threat to public safety; or

(ii) an Emergency; or

(iii) the Authority considers it necessary or expedient in the interests of the environment; or

(iv) the Authority considers it necessary in order to secure the carrying out

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of any statutory function;

the Authority may give notice at any time (including during a Remedy Period in respect of a breach or failure to perform) requiring the PPP Co forthwith to take such steps as the Authority considers necessary or expedient to mitigate or preclude such state of affairs. In the event that the PPP Co fails to take such steps as the Authority may consider necessary and within such time as the Authority shall think fit, then the Authority may take such steps itself or engage others to take such steps, and the provisions of Clause 32.6(c) shall apply.

(c) Without prejudice to the generality of Clause 43.1 (PPP Co's Indemnities), the PPP Co shall indemnify the Authority for all reasonable costs and expenses incurred by it in taking the steps or engaging others to take the steps referred to in Clause 32.6(a) or Clause 32.6(b) (including, without limitation, the relevant administrative expenses of the Authority, including an appropriate sum in respect of general staff costs and overheads).

33. CALCULATION OF PAYMENTS

Subject to the terms of Part 1 of Schedule 18 (payment and Performance), the Authority shall pay to the PPP Co:

(a) on each Payment Date, the Monthly Payment specified for such date; and

(b) on each ESP Payment Date, the ESP Payment specified for such date,

in the amount or amounts specified in accordance with Part 1 of Schedule 18 (payment and Performance) for the Operation of the Facility, each of which shall be requested in accordance with Clause 34 (payment Requests) and payable in accordance with Clause 35 (payments).

34. PAYMENT REQUESTS

All payment requests made pursuant to this Agreement shall be made in accordance with the provisions of Part 7 of Schedule 18 (payment and Performance).

35. PAYMENTS

All payments made pursuant to this Agreement shall be made in accordance with the provisions of Part 7 of Schedule 18 (payment and Performance).

36. SET-OFF

The PPP Co shall not be entitled to retain or set-off any amount due to it by the Authority against any amounts due to the Authority by it but the Authority may retain or set-off any amount due to it by the PPP Co under this Agreement and the Project Documents against any amount due by the Authority to the PPP Co under this Agreement and the Project Documents.

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37. REFINANCING

37. 1 Refinancing

(a) Subject to the provisions of this Agreement and to the Authority's prior written consent on each occasion, the PPP Co may at any time after the Construction Period propose to the Authority that there should be a Refinancing under the Financing Agreements provided that no Refinancing shall take place unless in accordance with Schedule 19 (Refinancing).

(b) An Exempt Sub-Participation shall not constitute a Refinancing for the purposes of this Agreement and the provisions of Schedule 19 (Refinancing) shall not apply.

37.2 Termination

(a) If the PPP Co wilfully breaches Clause 37.1 (Refinancing) the Authority may terminate this Agreement at any time on or before the Expiry Date by complying with its obligations under Clauses 37.2(b) to 37.2(c).

(b) If the Authority wishes to terminate this Agreement under this Clause 37.2 (Termination), the Authority shall give notice to the PPP Co stating:

(i) that the Authority is terminating this Agreement under this Clause 37.2 (Termination); and

(ii) that this Agreement will terminate on the date falling 20 (twenty) Working Days after the date of receipt of the notice or such later date as the Authority may determine in its absolute discretion.

(c) This Agreement will terminate on the date stated in the notice served on the PPP Co pursuant to paragraph (b) above.

(d) If this Agreement is terminated pursuant to this Clause 37.2 (Termination), then the Authority shall pay to the PPP Co an amount equal to the Corrupt Gifts Termination Sum in accordance with Part 5 of Schedule 24 (Compensation on Termination).

38. AMENDMENTS TO THE FINANCING AGREEMENTS

38.1 Entitlement to Amend

For the avoidance of doubt, it is acknowledged that the PPP Co may enter into any amendment of a Financing Agreement without submitting the relevant document or proposed course of action to the Authority's Representative unless the document or proposed course of action would:

(a) have the effect that the performance by the PPP Co or any other party to any of the Financing Agreements of any of its or their respective obligations under such agreement would be liable to be accelerated or (in any manner adverse to the PPP Co) altered as a result of any default, action or circumstance existing in relation to any other waste management project for the Authority; or

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(b) have a material adverse effect on the ability of the PPP Co to comply with its obligations under this Agreement; or

(c) have the effect of inhibiting the ability of the PPP Co to comply with the terms of Clause 37 (Refinancing); or

(d) fall to be considered under any provision of Clause 37 (Refinancing).

38.2 Submission of Documents

The PPP Co shall submit-to the Authority's Representative at the end of each Contract Year copies of any document entered into and details of any course of action taken with respect to any Financing Agreement during that Contract Year which were not submitted to the Authority's Representative during that Contract Year.

38.3 No Increased Liability

Notwithstanding any other provision of this Agreement, no liability or obligation of the Authority under this Agreement (whether present, future, actual Or contingent) shall be increased by any document or proposed course of action referred to in Clause 38.1 (Entitlement to Amend).

(

,~

38.4 Funder Direct Agreement

In the event of a Refinancing involving a third party funder occurring, the Authority and the PPP Co hereby agree that they shall negotiate in good faith in relation to the entry by the Authority of a direct agreement with the PPP Co and the third party funder (a "Direct Agreement") in connection with such Refinancing.

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PART 11 - TAXES

39. TAXES

39.1 Deductions and Withholdings from Payments by the Authority - General

All payments to be made by the Authority under this Agreement are stated on a gross basis but the Authority may make any deduction or withholding on account of tax as is required by Law or Legal Requirement or as required under published Statements of Practice by the Revenue Commissioners or as the Authority is entitled to make under this Agreement. For the avoidance of doubt, the Authority may also make any deduction or withholding on account of tax which does not arise under the requirements of any Law or Legal Requirement required under published Statements of Practice by the Revenue Commissioners at the Commencement Date but which may arise at any future date under any circumstances, including any Change in Law or Legal Requirement or practice. The PPP Co shall accept the net amount paid after such deduction or withholding in discharge of the Authority's liability to the same

(if:;: extent as if the deduction or withholding had not been made provided that it is

~/ furnished with the relevant certificate and/or documentary evidence on payment of the amount so deducted or withheldby the Authority to the Revenue Commissioners or other appropriate authority, sufficient to enable the PPP Co to obtain a tax credit for the withholding tax.

39.2 Specific Deductions and Withholdings from Payments

Without prejudice to the generality of Clause 39.1 (Deductions and Withholdings from Payments by the Authority - General) the Authority may make any of the deductions or witbholdings as are referred to in this Clause 39.2 (Specific Deductions and Withholdings from Payments). For the avoidance of doubt, the parties do not intend the specific deductions and withholdings cited in this Clause 39.2 (Specific Deductions and Withholdings from Payments) to be an exhaustive list of all circumstances in which a deduction or withholding may arise.

(a) The Authority may make any deduction or withholding from any payment which is required under Chapter 2 of Part 18 of the Taxes Act (payments to subcontractors in certain industries) unless the PPP Co produces a valid certificate of authorisation (C2) at least 20 (twenty) Working Days before the date of the payment by the Authority and the Authority receives a valid relevant payments card (RCT 47), both of which cover the payment in question, and also unless all relevant regulations are complied with. The Authority shall cooperate with the PPP Co in making the application for a valid payments card (ReT 47) which application must be signed by both parties. The Authority and the PPP Co shall comply with their respective obligations under Chapter 2 of Part 18 of the Taxes Act and the regulations. If such compliance or compliance with this Clause 39.2(a) involves the Authority or the PPP Co in not complying with any other of the terms of this Agreement, then the requirements in order to so comply and the said provisions shall prevail over any other terms of this Agreement. Any Dispute arising out of the application of this Clause 39.2(a) shall be resolved in accordance with the Disputes Resolution Procedure.

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(b) The Authority may make any deduction or withholding required under Section 980 of the Taxes Act (Deduction from consideration on disposal of certain assets) unless the PPP Co produces a valid certificate under that Section dispensing with the Authority's obligation to make a deduction or withholding.

(c) The Authority may make any deduction or withholding required or referred to under Section 1041 of the Taxes Act (Rents payable to non-residents).

(d) The Authority may make any deduction or withholding required under Section 238 of the Taxes Act (Annual payments not payable out of taxed income).

(e) The Authority may make any deduction or withholding required under Chapter 1 of Part 18 of the Taxes Act (payments in respect of professional services by certain persons) and regulations made thereunder.

(f) The Authority may make any deduction or withholding required under Section 246 of the Taxes Act (Interest payments by companies and to non-residents).

39.3 Tax Clearance Certificates in relation to Public Sector Contracts

(

The PPP Co shall comply with all relevant obligations referred to in Section 1095 of the Taxes Act (Tax clearance certificates in relation to public sector contracts) and shall obtain an appropriate Tax Clearance Certificate referred to in that Section and shall comply with all relevant obligations under the scheme referred to in that Section. In the event of any of the foregoing obligations not being complied with or actions not being undertaken or in the event of non-continuation of compliance the Authority may suspend or refuse to make any payments under this Agreement until such date as the PPP Co shall demonstrate to the Authority that it is fully in compliance with Section 1095 of the Taxes Act.

39.4 Other Tax Certificates

The PPP Co shall comply with any prOVIsIOn of the Taxes Act or regulations thereunder which require the obtaining or production of a Tax Clearance Certificate or other relevant certificate. In the event of non-compliance, the Authority may make any deductions or withholdings as required by Law or Legal Requirement.

39.5 Payments bythePPP Co

All payments by the PPP Co pursuant to this Agreement shall be made free and clear of any and all present Taxes. If any monies payable hereunder are or shall become subject to any deduction or withholding the amount of such payments shall be increased so that the net amount received by the Authority shall be equal to the amount which, but for such deduction or withholding would have been received by the Authority.

39.6 Payments to Sub-Contractors

The PPP Co shall comply with its obligations under Chapter 2 of Part 18 of the Taxes Act and any regulations thereunder and shall procure that all other persons to whom payments are made in relation to activities contemplated by this Agreement shall also

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so comply.

40. VALUE ADDED TAX

40.1 Exclusive of VAT

All amounts stated to be payable by either party under this Agreement shall be exclusive of any VAT properly chargeable thereon.

40.2 Payment of VAT

(a) Each party shall pay to the other party any VAT properly chargeable to it in respect of any supply made to it under this Agreement provided that it shall first have received from the other party an invoice in respect of that supply demanding payment of the VAT arising on that supply.

(b)

Where under this Agreement any amount is calculated by reference to any sum which has or may be incurred by any person, the amount shall include any VAT in respect of that amount only to the extent that such VAT is not recoverable as an input tax by that person (or a member of the same VAT group), whether by set off or repayment.

(c) The PPP Co shall provide the Authority with any information reasonably requested by the Authority in relation to any amount of V AT chargeable in accordance with this Agreement and payable by the Authority to the PPP Co.

40.3 Ruling from the Revenue Commissioners

If the First Party shall consider that any VAT which the Second Party claims to be properly chargeable to the First Party in connection with this Agreement is not in fact properly so chargeable, the First Party shall be entitled to require the Second Party to obtain a ruling from the Revenue Commissioners as to the V AT (if any) properly so chargeable. The Second Party shall forthwith request the Revenue Commissioners to issue such a ruling.

40.4 Procedures for Obtaining a Ruling from the Revenue Commissioners

The following further provisions shall apply in respect of any application for a ruling made in accordance with Clause 40.3 (Ruling from the Revenue Commissioners):

(a) prior to submitting its request for such a ruling and any further communication to the Revenue Commissioners in connection with the obtaining of the ruling, the Second Party shall first obtain the agreement of the First Party to the contents of such request and any such further communication (such agreement not to be unreasonably withheld or delayed);

(b) the Second Party shall provide to the First Party copies of all communications received from the Revenue Commissioners in connection with the application for a ruling as soon as practicable after receipt; and

(c) the Second Party shall use all reasonable efforts (including without limitation the provision of such additional information as the Revenue Commissioners

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may require) to obtain such a ruling as soon as reasonably practicable following the initial request.

40.5 Obligation to Pay on Receipt of Ruling

If a ruling is required by the First Party under Clause 40.3 (Ruling from the Revenue Commissioners), the First Party shall be obliged to pay the VAT so claimed by the Second Party in accordance with the provisions of Clause 40.2(a) above. In the event of the receipt of a ruling which states that a sum of VAT (the "VAT Sum") is properly not chargeable, provided that the First Party shall first have paid the V AT demanded on foot of an invoice (as described in Clause 40.2 (payment of V AT)), the Second Party shall repay to the First Party, the VAT which the Revenue are of the view is not due.

40.6 Disagreement

In the event that the First Party disagrees with any ruling obtained pursuant to Clause

40.3 (Ruling from the Revenue Commissioners) by the Second Party from the '\

Revenue Commissioners, then the Second Party (provided that it is indemnified to its reasonable satisfaction against all costs and expenses which it may incur in relation

thereto) shall take such action and give such information and assistance to the First

Party as the First Party may require to challenge such ruling or otherwise to resist or

avoid the imposition of V AT on the relevant supply.

40.7 Further Provisions

The following further provisions shall apply in the event that the First Party shall exercise its rights under Clause 40.6 (Disagreement):

(a) the action which the First Party shall be entitled to require the Second Party to take shall include (without limitation) pursuing a claim for refund of VAT, contesting any assessment for VAT or other relevant determination of the Revenue Commissioners before the Appeal Commissioners or court of competent jurisdiction and appealing any judgment or decision of the Appeal Commissioners or other court; and

(b) the First Party shall be obliged to pay to the Second Party any sum in respect of the VAT in dispute or in respect of VAT on any further supplies made by the Second Party to the First Party which are of the same type and raise the same issues as the supplies which are the subject of the relevant dispute. If the final outcome of the relevant dispute is that it is either determined or agreed that VAT is properly not chargeable on the relevant supply or supplies, the Second Party shall refund the VAT paid by the First Party which is the subject of the relevant dispute.

41. RATES

Any rates arising or payable in connection with the use of any property under this Agreement or in connection with compliance with any obligations under this Agreement are payable by the PPP Co. Subject to all applicable Law and Legal Requirements, the Authority and the PPP Co shall endeavour to so order their

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dealings under this Agreement so as to minimise any such liability to rates.

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PART 12 - LIABILITIES, INDEMNITIES AND INSURANCE

42. CLAIMS

42 1 Claims Against Third Parties

(a) Except to the extent expressly contemplated otherwise by this Agreement (including Clause 43.3 (Authority's Indemnities», the PPP Co will bear, without recourse to the Authority, any Claim or Loss suffered by the Authority, the PPP Co or their respective agents, contractors or subcontractors of any tier or the employees of my of them in connection with the Project.

(b) For the avoidance of doubt, nothing in Clause 42.1(a) shall affect:

(i) any right or remedy of the Authority to make or recover any Claim against any person for damage suffered by the Authority, its agents or contractors (other than the PPP Co) or sub-contractors of any tier or the employees of any of them; or

(ii) any right of the PPP Co to make or recover any third party Claim against any person (other than the Authority) for damage suffered by the PPP Co.

42.2 Conduct of Claims Against Third Parties

(a) Subject to the prior consent of the Authority, the PPP Co may if necessary bring any action against any person in the name of the Authority, provided that the PPP Co shall indemnify and keep indemnified the Authority against any Loss or Claim suffered by the Authority arising out of any such action.

(b) With respect to any action brought under Clause 42.2(a) and without prejudice to any terms which the Authority may reasonably require in accordance with such Clause 42.2(a):

(i) the PPP Co shall keep the Authority fully informed about the conduct of any such action;

(ii) the PPP Co shall consult with the Authority about the conduct of any such action and shall take account of the reasonable requirements of the Authority in the conduct of such action; and

(iii) the PPP Co shall not settle any such action without the consent of the

Authority provided that such consent shall not be required to the s of any action if amount of the Claim at issue does not (Indexed).

42.3 Claims Arising Prior to the Commencement Date

If the PPP Co receives any Claim from a third party in relation to the Project and relating wholly to any period prior to the Commencement Date, it shall promptly forward details of such Claim to the Authority. For the avoidance of doubt, the PPP

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Co shall not be liable for any such Claim except to the extent that such Claim results from the acts or omissions of the PPP Co. All other Claims from third parties shall be dealt with in accordance with the provisions of Clause 43 (Indemnities).

43. INDEMNITIES

43.1 PPP Co's Indemnities

Except to the extent expressly contemplated otherwise by this Agreement (including Clause 43.3 (Authority's Indemnities», the PPP Co hereby undertakes at all times to indemnify and hold harmless on demand the Authority, its officers, servants (which, without prejudice to the proviso set out in Clause 43.1 (ii) below, for the avoidance of doubt, excludes consultants, contractors, agents or other third parties) and employees, from and against all and any Claim or Loss which may at any time be suffered or incurred:

(a) as a result of, or in any way connected with the Project (including, without limitation, as a result of the possession, control, construction, maintenance, service, repair, contamination or use of and access to the Site, the Shellybanks Site and Ancillary Sites or the Operations or in connection with the Works, the Renewal Works, the Additional Works or the taking of any action authorised by the Authority); or

(b) where such Loss has been insured against pursuant to this Agreement, as a result of an obligation to satisfy a deductible under any of the Insurances;

(c) as a result of any act or omission which invalidates any of the insurances required by this Agreement; or

(d) as a consequence of any design, article or material relating to, or used in connection with the Project or the operation or use thereof constituting an infringement of patent, copyright, trademark, design or other proprietary right or a breach of any obligation of confidentiality owed to any person; or

\'

(e)

without prejudice to the generality of paragraph (a) above, as a result of, or in connection with, a breach by the Authority of any of its statutory duties arising as a consequence of any act or omission of the PPP Co; or

(f) without prejudice to the generality of paragraph (a) above, in relation to, or as a result of, any claim brought by any person in respect of, or as a result of, the European Communities (protection of Employees on Transfer of Undertakings) Regulations 2003 in connection with the Project; or

(g) without prejudice to the generality of paragraph (a) above, as a consequence of the failure by the PPP Co to provide any services or carry out any functions contemplated herein to the required standard; or

(h) without prejudice to the generality of paragraph (a) above, as a result of the failure by the PPP CO to provide the level of performance specified by this Agreement or as a consequence of the breach by the PPP Co of any provision of this Agreement or any document contemplated hereby or as a consequence of any PPP Co Default;

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(i) without prejudice to the generality of paragraph (a) above, as a consequence of the Authority exercising its rights under Clause 43.2(d) (Conduct of Claims Subject to the PPP Co's Indemnities); or

G) without prejudice to the generality of paragraph (a) above, as a result of the failure by the PPP Co to obtain or comply with the Necessary Consents,

provided that:

(i) the PPP Co shall not be liable to give such indemnity in accordance with this Clause 43.1:

(A) to the extent that a particular Loss or Claim arises as a result of the negligence or wilful default of the Authority;

(B) to the extent that a particular Loss or Claim results from a breach or failure to perform by the Authority of its obligations under this Agreement;

(C) to the extent that a particular Loss or Claim arises as a result of a breach by the Authority of its obligations pursuant to public procurement law or of any other statutory duty in respect of the Project except to the extent such breach arises as a result of the breach or failure by PPP Co to perform its obligations under this Agreement and/or the Project Documents;

CD) to the extent that a particular Loss or Claim relates to any period prior to the Commencement Date (except to the extent that the particular Loss or Claim results from the acts or omissions of the PPP Co);

(E) in respect of any Loss or Claim arising from or relating to the Baseline Environmental Study; or

(F) in respect of any Loss or Claim made by the Authority against any consultant, contractor or agent to the Authority in connection with the Project (except to the extent that such Loss or Claim derives from or is attributable to the acts or omissions of the PPP Co); and

(ii) it is acknowledged by the PPP Co that, to the extent the Authority is itself obliged to indemnify and hold harmless any third party (including any consultant, contractor or agent) in connection with the Project, for the avoidance of doubt, such liability shall be regarded as a "Claim or Loss" for the purposes of this Clause 43.1, provided that in no such case shall the PPP Co be liable to directly indemnify any of the Authority's consultants, contractors, agents or other third parties.

43.2 Conduct of Claims Subject to the PPP Co's Indemnities

(a) If the Authority receives any notice, demand, letter or other document concerning any Claim from which it appears that the Authority is or may

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become entitled to indemnification under this Agreement, the Authority shall give notice in writing to the PPP Co as soon as reasonably practicable.

(b) Subject to the following provisions of this Clause 43.2 (Conduct of Claims Subject to the PPP Co's Indemnities), on the giving of a notice pursuant to Clause 43.2(a), the PPP Co shall be entitled to and shall resist the Claim in the name of the Authority at its own expense and shall have the conduct of any defence, dispute, compromise or appeal of the Claim and of any incidental negotiations, and the Authority will give the PPP Co all reasonable cooperation, access and assistance for the purposes of considering and resisting such Claim.

(c) With respect to any Claim being resisted by the PPP Co in accordance with Clause 43.2(b):

(i) the PPP Co shall keep the Authority fully informed and consult with it about the conduct of the Claim;

))

(

(ii)

to the extent that the Authority is not entitled to be indemnified by the PPP Co for all of the liability arising out of the act or omission which is the subject of the Claim, no action shall be taken pursuant to Clause 43 .2(b) which shall increase the amount of any payment to be made by the Authority in respect of that part of the Claim which is not covered by the indemnity from the PPP Co; and

(iii) the PPP Co shall not payor settle such Claim without the consent of the Authority.

(d) The Authority shall be free to payor settle any Claim on such terms as it may, in its absolute discretion, think fit and without prejudice to its rights and remedies under this Agreement (including, without limitation, Clause 43.1 (pPP Co's Indemnities)) if:

(i)

within 20 (twenty) Working Days of the issue date of the notice from the Authority under Clause 43.2(a) the PPP Co fails to notify the Authority of its intention to dispute the Claim; or

I

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(ii) the PPP Co fails to comply in any material respect with the provisions of Clause 43.2(c).

( e) The Authority shall be free at any time to give notice to the PPP Co that it is taking-over the conduct of any defence, dispute, compromise or appeal of any Claim subject to Clause 43.2(b) or of any incidental negotiations. Upon receipt of such notice the PPP Co shall promptly take all steps necessary to transfer the conduct of such Claim to the Authority and shall provide to the Authority all reasonable co-operation, access and assistance for the purposes of considering and resisting such Claim. If the Authority gives any notice pursuant to this Clause 43.2(e), then the PPP Co shall be released from its indemnity in respect of such Claim save where such notice was given as a consequence of the failure of the PPP Co, in the opinion of the Authority (acting reasonably), to deal properly with any such Claim.

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43.3 Authority's Indemnities

The Authority shall indemnify and keep indemnified the PPP Co in respect of:

(a) any Loss or Claim to the extent resulting from any negligent act or omission of the Authority, its agents or employees (not being directly or indirectly employed by, or contracted with, the PPP Co) in connection with the Project save in respect of:

(i) any Loss or Claim to be borne by the PPP Co in accordance with Part 3 of Schedule 04 (Land Issues) or which arises out of or in connection with any measures taken or not taken by the PPP Co against or in connection with Protestors or Trespassers; or

(ii) any matter referred to in Clause 43.1(f) (pPP Co's Indemnities); or

(iii) any Loss or Claim arising from any inaccuracy, error, omission, unfitness for purpose, defect or inaccuracy of any kind whatsoever in the Disclosed Data or material referred to in Clause 7 (Disclaimers) (for the avoidance of doubt, whether or not arising from any negligence on the part of the Authority, the Local Authorities, their respective advisers, consultants, servants, contractors or agents);

(iv) acts or omissions occurring prior to the Commencement Date; and

(b) any Loss which is to be borne by, or Claim made against, the Authority in accordance with Clause 47 (Force Majeure Events).

43.4 Disclaimer

Save as expressly provided in this Agreement the Authority, the Local Authorities, their respective advisers, consultants, servants, contractors and agents shall not under any circumstances be liable to the PPP Co, whether in contract, tort, by statute or otherwise and whether or not arising from any negligence on the part of the Authority, the Local Authorities, their respective advisers, consultants, servants, contractors or agents, for any Claim or Loss of any person arising out of, or in the course of or in connection with the Project provided (but without prejudice to the requirements of Clause 60 (Disputes Resolution Procedure)) that the parties agree that the PPP Co shall be entitled to the remedy of specific performance in respect of any actual breach by the Authority of any of its material obligations under this Agreement.

43.5 Conduct of Claims Subject to Authority's Indemnities

(a) If the PPP Co receives any notice, demand, letter or other document concerning any Claim from which it appears that the PPP Co is or may become entitled to indemnification under this Agreement, the PPP Co shall give notice in writing to the Authority as soon as reasonably practicable.

(b) Subject to the following provisions of this Clause 43.5 (Conduct of Claims Subject to Authority's Indemnities), on the giving of a notice pursuant to Clause 43.S(a) the Authority shall be entitled to resist the Claim in the name of the PPP Co at its own expense and to have the conduct of any defence,

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dispute, compromise or appeal of the Claim and of any incidental negotiations, and the PPP Co will give the Authority all reasonable co-operation, access and assistance for the purposes of considering and resisting such Claim.

(c) With respect to any Claim being resisted by the Authority in accordance with Clause 43.5(b):

(i) the Authority shall keep the PPP Co fully informed and consult with it about the conduct of the Claim;

(ii) to the extent that the PPP Co is not entitled to be indemnified by the Authority for all of the liability arising out of the act or omission which is the subject of the Claim, no action shall be taken pursuant to Clause 43.5(b) which shall increase the amount of any payment to be made by the PPP Co in respect of that part of the Claim which is not covered by the indemnity from the Authority; and

n c:

'.

, .

"":,'.

(iii) the Authority shall not payor settle such Claim without the consent of the PPP Co, such consent not to be unreasonably withheld or delayed.

(d) The PPP Co shall be free to payor settle the Claim on such terms as it may in its absolute discretion think fit and without prejudice to its rights and remedies under this Agreement if:

(i) within 20 (twenty) Working Days of receipt of the notice from the PPP Co under Clause 43.5(a) the Authority fails to notify the PPP Co of its intention to dispute the Claim; or

(ii) the Authority fails to comply ill any material respect with the provisions of Clause 43.5(c).

(e)

The PPP Co shall be free at any time to give notice to the Authority that it is taking over the conduct of any defence, dispute, compromise or appeal of any Claim subject to Clause 43.5(b) or of any incidental negotiations. Upon receipt of such notice the Authority shall promptly take all steps necessary to transfer the conduct of such Claim to the PPP Co and shall provide to the PPP Co all reasonable co-operation, access and assistance for the purposes of considering and resisting such Claim. If the PPP Co gives any notice pursuant to this Clause 43.5(e), then the Authority shall be released from its indemnity in respect of such Claim.

43.6 Savings

Bach party's liability arising under any indemnity in this Clause 43 (Indemnities) shall be without prejudice to any other right or remedy available to the indemnified party and shall be without limitation to any indemnity under any other provision of this Agreement.

44. INSURANCE

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44.1 Insurance Cover

(a) The PPP Co shall take out and maintain in force the Insurances specified in Schedule 22 (Insurances), this Clause 44 (Insurance) and any other insurances as may be required by Law throughout the relevant periods, as follows:

(i) during the Development Period, the PPP Co shall comply with Part 1 of Schedule 22 (Insurances);

(ii) during the Construction Period, the PPP Co shall comply with Part 2 of Schedule 22 (Insurances);

(iii) during the Operational Period, the PPP Co shall comply with Part 3 of Schedule 22 (Insurances); and

(iv) the PPP Co shall comply with Clause 44.13 (professional Indemnity Insurance) during the period specified therein.

(b) The Insurances taken out in accordance with this Clause 44.1 (Insurance Cover) shall be effective in each case no later than the date on which the relevant risk commences.

(c) The PPP Co shall procure that the employer's liability insurance policies referred to at paragraph 7 of Part 2 and paragraph 5 of Part 3 of Schedule 22 (Insurances) contain a provision indemnifying the Authority against any Claim made in respect of which the PPP Co is entitled to indemnity

(d) The Insurances shall:

(i) be provided by an insurer which has been Approved; and

(ii) contain only the terms and conditions (including without limitation policy limits, sub-limits, attachments and endorsements) as have been Approved.

(e) The Insurances, once taken out in accordance with the terrns of this Agreement, shall not be assigned (other than pursuant to the Financing Agreements) or changed. or replaced and no amendment, waiver, deletion, or addition to any of the provisions of the Insurances or of any endorsements or attachments thereto shall be permitted in a way which results in a breach of this Clause 44 (Insurance) or Schedule 22 (Insurances) and no rights of the PPP Co under the Insurances or to the proceeds thereof shall be assigned (other than pursuant to the Financing Agreements) unless the Authority's Representative, in his absolute discretion, agrees the insurer, the terms and conditions of the Insurances and, where applicable, any assignment, change, replacement, amendment, waiver, deletion or addition thereto.

(f) Neither party shall take any action or fail to take any reasonable action, or (insofar as it is reasonably within its power) permit anything to occur in relation to it, which would entitle any insurer to refuse to pay any Claim (in whole or in part) under any of the Insurances, in which that party is an insured, co-insured or additional insured person.

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(g) The insurance premiums and all excess payments and costs of any other requirements referred to in this Clause shall be the responsibility of the PPP Co.

44.2 Policies and Information Provided to Insurers

The PPP Co shall:

(a) when requested by the Authority's Representative, provide copies of all information given to insurers or underwriters, either at the time of placing the policies or during the currency thereof, and procure and take all steps necessary to ensure that this information (and any held by third parties acting on the PPP Co's behalf) is retained for a period of not less than IO (ten) years after the end of the Contract Period;

(b)

furnish all insurance policies, placing slips, cover notes, and endorsements or attachments, and amendments and replacements of the same and other relevant documents (or copies certified in a manner acceptable to the Authority's Representative) to the Authority's Representative on request, together with evidence that the premiums payable thereunder have been paid and that the Insurances are in full force and effect in accordance with the requirements of this Clause 44 (Insurance) and Schedule 22 (Insurances); and

(c) procure that the said original policies and the original of the documents referred to in this Clause 44.2 (policies and Information Provided to Insurers) are held to the order of the Authority, whose prior consent shall be required for their release.

44.3 Rights of Subrogation, Non-Vitiation, Changes to Policy Provisions, Waiver of Disclosure Obligation and Notice of Cancellation

(a) The Insurances required to be taken out (other than professional indemnity

, insurances and insurances required by statute) and maintained shall:

(i)

name the Authority as co-insured;

(ii) provide that the insurer waives any right to receive from the Authority disclosure of material information;

(iii) incorporate a non-vitiation/severability clause to the effect that ail the provisions of the policies (except the sums insured/limits of liability) shall operate as if there were a separate policy for each named insured and that the non-compliance with any policy, term, condition or warranties or the non-disclosure or misrepresentation of material information by the PPP Co or any other joint insured will not affect the rights or interests of the Authority under the policies;

(iv) provide for a waiver of all rights of subrogation against the Authority and its respective servants and agents unless there is a deliberate act of fraud or misrepresentation on the part of the Authority;

(v) provide that no reduction in limits or coverage or increases ill

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deductibles, exclusions or exceptions shall be made to the policy without the prior consent of the Authority;

(VI) provide that all monies payable in respect of the policy shall be paid without deduction or set-off (howsoever and whensoever arising);

(vii) in respect of the policies referred to at paragraph 4 of Part 2 and paragraph 3 of Part 3 of Schedule 22 (Insurances), provide that the illsurersty in relation to any Claim in

excess Euro in circumstances where the

Authority . and

(viii) provide that the Insurances shall be primary to and not excess to or contributing with any other insurance cover maintained by the PPP Co.

(b) All such policies of insurance shall provide for 30 (thirty) days notice to be given to the Authority prior to any cancellation, non-renewal or adverse modification of any such policy.

44.4 Renewal Certificates

Renewal certificates or such other written evidence of renewal in relation to the Insurances shall be obtained from the insurer or reputable insurance brokers, as and when necessary, and such certificates (or copies thereof certified in a manner acceptable to the Authority's Representative) shall be forwarded to the Authority's Representative as soon as possible and in any event before the relevant renewal date.

445 Authority's Right to Insure

If the PPP Co fails or refuses to obtain or maintain in force any insurance required to be effected by it under the provisions of this Clause 44 (Insurance) or to provide the Authority's Representative with the renewal certificates in relation thereto (or copies thereof certified in a manner acceptable to the Authority'S Representative) as and when required, the Authority shall, upon giving notice to the PPP Co, without prejudice to any of its rights under this Agreement or otherwise, have the right itself to procure such insurances, in which event any sums so paid by the Authority in this regard shall immediately become due and payable to the Authority by the PPP Co and shall be paid on demand. The Authority shall also be entitled to deduct such sums from any moneys due or which may become due to the PPP Co.

44.6 Notification of Claims

(a) The PPP Co shall promptly notify the Authority's Representative of all Claims or circumstances which might result in a Claim under any of the insurance policies referred to in this Clause 44 (Insurance) and the PPP Co shall keep the Authority'S Representative informed, on a regular basis, of any action taken in relation to the Claim or of any information relevant to the Claim.

(b) The PPP Co shall promptly notify the insurers of all Claims or circumstances which may give rise to a Claim as required by the relevant policy of insurance and shall provide to the insurer such further information, assistance or documentation as the said insurer may reasonably require.

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(c) The PPP Co shall maintain a register of all claims or circumstances that might result in a Claim.

44.7 Reinstatement

(a) Subject to Clause 44.8 (Economic Test), all insurance proceeds paid by the insurer under the policies referred to in paragraph 2 of Part 2 and paragraph 2 of Part 3 of Schedule 22 (Insurances) shall be paid into the Joint Insurance Account. The said insurance proceeds shall be applied to repair, reinstate and replace each part or parts of the Works or the Facility in respect of which the proceeds were received.

(b)

Where a Claim is made or insurance proceeds are received or are receivable under the policies of insurance referred to in paragraph 2 of Part 2 and

paragraph 2 of Part 3 of Schedule 22 and the

Claim or proceeds exceeds the sum (Indexed), the PPP Co shall deliver to soon as practicable and in any event within 20 (twenty) Working Days after the making of the Claim, a Reinstatement Plan prepared by the PPP Co for the carrying out of the Reinstatement Works which are the subject of the relevant Claim or Claims. The Reinstatement Plan shall be subject to Document Review and shall set out:

(i) the identity of the person proposed to effect the Reinstatement Works; and

(ii) the proposed terms and timetable upon which the Reinstatement Works are to be effected (including the date that the Project will be Operational).

(c) c Upon notification to the Authority's Representative, the PPP Co shall proceed to carry out the Reinstatement Works in accordance with the Reinstatement Plan. In such event the proceeds paid into the Joint Insurance Account shall be withdrawn by the Authority as required to enable it to make payments to the PPP Co in accordance with the terms of the contractual arrangements entered into to carry out the Reinstatement Works in accordance with the Reinstatement Plan and to meet other reasonable costs and expenses of the PPP Co for the sole purpose of funding the Reinstatement Works.

(d) The Authority agrees and undertakes that, subject to compliance by the PPP Co with its obligations under this Clause 44.7 (Reinstatement), and provided that the PPP Co procures that the Reinstatement Works are carried out and completed in accordance with the Reinstatement Plan, 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 insurance proceeds.

(e) Where insurance proceeds are used in accordance with this Agreement to carry out the Reinstatement Works, the PPP Co shall carry out the Reinstatement Works in accordance with the requirements of this Agreement so that on completion of the Reinstatement Works, the provisions of this Agreement have been fully complied with.

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(f) The Authority agrees that unless the proceeds received from insurers are in respect of Claims made by the Authority itself or are Claims in respect of which the Authority is entitled to an indemnity under the policy, all sums will be paid immediately, and in any event, within 5 (five) Working Days of their receipt, into the Joint Insurance Account. The PPP Co hereby accepts and shall procure that the proceeds in the Joint Insurance Account are applied to the Reinstatement Works in respect of which insurance proceeds were required or are applied to reimburse the party who has already undertaken the Reinstatement Works.

(g) After the Reinstatement Plan has been implemented to the reasonable satisfaction of the Authority and in accordance with Clause 44.7(e), the Authority shall permit the withdrawal by the PPP Co of excess insurance proceeds then held in the Joint Insurance Account in respect of which the insurance proceeds were paid, ~at' ~~t been paid in ~SP1:, of the Reinstatement Works, together with ~rest accrued.

44.8 Economic Test

(a)

If all or a substantial part of the Works or Facility is destroyed or substantially destroyed in a single event and the insurance proceeds (when taken together with any other funds available to the PPP Co) are equal to or greater than the amount required to repair or reinstate the Works or Facility, then, in the event of a Refinancing, the PPP Co shall calculate the Senior Debt Loan Life Cover Ratio (as such term is defined in any Financing Agreement put in place, and Approved by the Authority, after any such Refinancing) (on the assumption that the Works or Facility are or is repaired or reinstated in accordance with Clause 44.7 (Reinstatement).

('

(b) If the calculation referred to in paragraph (a) above shows that the SeniorDebt Loan Life Cover Ratio is greater than or equal to the event of default level, then the PPP Co shall be subject to the procedure set out in Clause 44.7 (Reinstatement).

(c) If the calculation referred to in paragraph (a) above shows that the Senior Debt Loan Life Cover Ratio is less than the event of default level, then an amount equal to the lesser of:

(i) the insurance proceeds; and

(ii) the Senior Debt Amount,

shall be released from the Joint Insurance Account to the PPP Co.

44.9 Risks that Become Uninsurable

(a) If a risk, usually covered by the policies referred to in Schedule 22 (Insurances) other than those risks listed in Clause 44.9(b), becomes Uninsurable then:

(i) the PPP Co shall notify the Authority of the risk becoming Uninsurable within 5 (five) Working Days of becoming aware of such risk

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becoming Uninsurable and in any event at least within 5 (five) Working Days before the expiry or cancellation of any existing insurance policy in respect of such risk; and

(ii) if both parties agree, or it is determined in accordance with Clause 60 (Disputes Resolution Procedure), that the risk is Uninsurable then the procedures as set out at Clause 44.9(c) shall apply.

(b) For the avoidance of doubt, risks usually covered by the following policies referred to in Schedule 22 (Insurances) shall during the Contract Period not be Uninsurable:

(i) during the Development Period:

(A) professional indemnity insurance referred to in Clause 44.l3 (professional Indemnity Insurance);

(B)

other mandatory insurances referred to in paragraph 4 of Part 1 of Schedule 22 (Insurances);

(ii) during the Construction Period:

(A) professional indemnity insurance referred to in Clause 44.13 (Professional Indemnity Insurance);

(B) other mandatory insurances referred to in paragraph 7 of Part 2 of Schedule 22 (Insurances);

(iii) during the Operational Period, other mandatory insurances referred to in paragraph 5 of Part 3 of Schedule 22 (Insurances).

(c) When a risk (other than those risks listed in Clause 44.9(b» is agreed, or alternatively determined to be, Uninsurable in accordance with Clause 44.9(a) and:

(i)

the risk being Uninsurable is not caused by the actions of the PPP Co or Staff; and

(ii) the PPP Co has demonstrated to the Authority that the PPP Co and a prudent board of directors of a company operating the same or substantially similar public private partnership businesses in the State to that operated by PPP Co would, in similar circumstances (in the absence of the type of relief envisaged by this Clause 44.9 (Risks that become Uninsurable», be acting in the best interests of the company if they resolved to cease to operate such businesses as a result of that risk becoming Uninsurable, taking into account such matters including, without limitation, as the likelihood of the Uninsurable risk occurring (if it has not already occurred), the financial consequences for such company if such Uninsurable risk were to occur (or has occurred) and other mitigants against such consequences which may be available to the company,

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then the parties shall meet to discuss the means by which the risk should be managed (including considering the issue of self-insurance by either party).

(d) If the requirements at Clause 44.9(c) are satisfied but the parties cannot agree as to how to manage the risk, then:

(i) in respect of third party liability insurance only, the Authority shall (at the Authority's option) either:

(A) terminate this Agreement pursuant to the provisions of Clause 50.2(b) (Termination for Force Majeure Event or Uninsurable Risk) and pay to the PPP Co the amount contemplated by Clause 52.3 (Force Majeure Event or Uninsurable Risk); or

(B) elect to allow this Agreement to continue and the provisions of Clauses 44. 9( d)(ii)-(iv) shall apply;

(ii)

in respect of the insurances specified in Schedule 22 (Insurance) other than third party liability insurance (except in the circumstances contemplated by Clause 44.9(d)(i)(B», this Agreement shall continue and, on the occurrence of the risk (but only for as long as such risk remains Uninsurable), the Authority shall (at the Authority'S option) either:

(A) pay to the PPP Co an amount equal to the insurance proceeds that would have been payable had the relevant insurance continued to be available and this Agreement shall continue; or

(B) terminate this Agreement pursuant to the provisions of Clause 50.2(b) (Termination for Force Majeure Event or Uninsurable Risk) and pay to the PPP Co the amount contemplated by Clause 52.3 (Force Majeure Event or Uninsurable Risk) plus, ill relation to third party liability insurance only, an amount equal to the insurance proceeds that would have been payable to the PPP Co had such third party liability insurance continued to be available;

(iii) where this Agreement continues pursuant to Clause 44.9(d)(i)(B) and/or Clause 44.9(d)(ii), the Applicable Gate Fee shall be reduced in each year for which the relevant Insurance is not maintained by an amount equal to the premium paid (or which would have been payable) by the PPP Co in respect of the relevant risk in the year prior to it becoming Uninsurable (Indexed from the date that the risk becomes Uninsurable). Where the risk is Uninsurable for part of a year only, the reduction in the Applicable Gate Fee shall be prorated to the number of months for which the risk is Uninsurable; and

(iv) where this Agreement continues pursuant to Clause 44.9(d)(i)(B) andlor Clause 44.9(d)(ii), the PPP Co shall approach the insurance market at least every 4 (four) months to establish whether the risk remains Uninsurable. Upon becoming aware that the risk is no longer

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Uninsurable, the PPP Co shall take out and maintain or procure the taking out and maintenance of insurance for such risk in accordance with this Agreement (to be incepted as soon as reasonably practicable).

( e) If a term which is required by this Agreement for inclusion in an insurance policy is not generally available to persons engaged in the same or substantially similar business to the PPP Co in the worldwide insurance market with reputable insurers of good standing in any of the member states of the European Union from time to time (an "Unobtainable Term") and such Unobtainable Term is not the result of the actions of the PPP Co or its Staff, the PPP Co shall not be considered to be in breach of its obligations under Clause 43.6 (Insurance) to the extent and for the period that the term remains an Unobtainable Term and this Agreement shall continue provided that:

(i) the PPP Co shall remain liable for any Claims or Losses relating to the risk which would otherwise be covered but for the non-availability of such term;

(ii)

the foregoing provisions of this Clause 44.9 shall not apply to such Unobtainable Term.; and

(iii) the PPP Co shall use its best endeavours to secure the next best optimal term available.

(f) Nothing in this Clause 44 (Insurance) shall oblige the PPP Co to take out insurance in respect of a risk which is Uninsurable, save where the predominant cause of the risk being Uninsurable is any act(s) or omission(s) of the PPP Co or Staff

44.10 Savings

(a)

Neither failure to comply nor full compliance with the insurance provisions of this Agreement shall limit or relieve the PPP Co of its liabilities and obligations under this Agreement and in particular the PPP Co's obligation to hold the Authority harmless in compliance with any indemnity provisions contained in this Agreement.

(b) The supply to the Authority's Representative of any draft insurance policy or certificate of insurance or other evidence of compliance with this Clause 44 (Insurance) shall not imply acceptance by the Authority's Representative that the extent of insurance cover is sufficient or that the terms and conditions thereof are satisfactory, in either case for the purposes of this Agreement.

44.11 Broker's Letter of Undertaking

On or prior to the Commencement Date, the PPP Co shall procure and furnish to the Authority a letter of undertaking, in the form of the specimen letter of undertaking contained in Part 4 of Schedule 22 (Insurances), addressed to the Authority and signed by a reputable broker appointed by the PPP Co in connection with the procurement of the Insurances specified in Parts 1,2 and 3 of Schedule 22 (Insurances). The PPP Co shall similarly procure and furnish to the Authority such a letter of undertaking from

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any replacement broker appointed by the PPP Co during the Contract Period.

44.12 Risk-sharing

(a) Within 60 (sixty) days of each anniversary of the Effective Date and every anniversary thereafter until the Expiry Date or (as the case may be) the Termination Date (each such date a "Review Date"), the Authority and the PPP Co will meet to review the respective annual costs incurred by the PPP Co (the "Actual Costs") in maintaining the terrorism insurances required pursuant to Schedule 22 (Insurances) (the "terrorism insurances") during the previous 1 (one) year period (each such 1 (one) year period, being a "Review Period"). In the event that the Review Date falls on a day other than a Working Day, then the Review Date will be deemed to occur on the next Working Day.

(b) If the Actual Costs incurred during a Review Period exceed the cost for such terrorism insurance set out in the Base Case Financial Model (or, after any Refinancing, the relevant Revised Financial Model) (the "Base Reference Amount") during the same Review Period, after deducting from the Actual Costs any increases which are not due solely to circumstances generally prevailing in the insurance market of the European Union, then an "Increased Insurance Cost" equal to this excess will have arisen. The Authority will compensate the PPP Co in respect of Increased Insurance Costs as follows:

(i) if the Increased Insurance Cost is less than or equal to an amount being 1 00% (one hundred percent) of the Base Reference Amount (the "Increase Threshold") then the PPP Co shall be responsible for the whole of the Actual Costs for the relevant Review Period;

(ii) if the Increased Insurance Cost is greater than the Increase Threshold, then:

(A) the Authority will meet with the PPP Co to discuss possible alternative arrangements, including, without limitation, any possible reduction in the scope of the terrorism insurances so as to decrease the projected Actual Costs below this threshold and each party shall act reasonably in attempting to reach agreement in respect of such possible alternative arrangements; and

(B) in the event the parties fail to agree any such alternative arrangements pursuant to Clause 44.12(b)(ii)(A) above, either:

(1) the PPP Co shall be responsible for the whole of the Increased Insurance Cost up to and including the Increase Threshold and the Authority shall compensate the PPP Co for the entire of the excess over the Increase Threshold; or

(2) the Authority shall elect to deem all or part of the terrorism insurances as Uninsurable.

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For the avoidance of doubt but subject to Clause 42.12( c), the PPP Co shall, in all circumstances, be liable for that element of the Actual Costs which equates to, or is less than, the amount of the Increase Threshold for the relevant Review Period.

(c) If the sum of the Actual Costs incurred during a Review Period is less than the Base Reference Amount for that Review Period, then a "Decreased Insurance Cost" equal to this decrease will have arisen. The PPP Co will share with the Authority the benefit of the Decreased Insurance Cost as follows:

0) if the Decreased Insurance Cost is less than or equal to an amount being 50% (fifty percent) of the Base Reference Amount (the "Decrease Threshold"), then the PPP Co shall retain the whole of the benefit of the Decreased Insurance Cost;

(ii)

if the Decreased Insurance Cost is greater than the Decrease Threshold, then the PPP Co shall pay to the Authority an amount equal to the amount of the Decreased Insurance Cost that exceeds the Decrease Threshold,

such payments to be made by the PPP Co to the Authority within 45 (fortyfive) days of such amounts being agreed or determined in accordance with the Disputes Resolution Procedure.

(d) The PPP Co shall provide the Authority with written notice of the Actual Costs for terrorism insurance for each year, as soon as practicable after it becomes aware of the same and prior to the renewal of such terrorism insurance.

(e)

Any amounts which the Authority must compensate the PPP Co in accordance with the above Clause 44. 12(b)(ii) (an "Additional Payment"), shall be paid in accordance with Clause 35 (payments). It will be the responsibility of the PPP Co to demonstrate that any claim for an Additional Payment is valid and proper. The Authority reserves the right to require such information as it may reasonably require to compare the Actual Costs against generally prevailing market pricing and conditions. If the Authority and the PPP Co cannot agree on the Additional Payment or any payments to be made by the PPP Co to the Authority pursuant to Clause 44.l2(c), the matter will be referred to the

Disputes Resolution Procedure. .

44.13 Professional Indemnity Insurance

(a) The provisions of this Clause 44 (Insurance) other than Clause 44.1 (Insurance Cover), Clause 44.2 (policies and Information Provided to Insurers) and Clause 44.4 (Renewal Certificates) shall not apply to the professional indemnity insurance required to be taken out pursuant to this Clause 44.13 (Professional Indemnity Insurance).

(b) The PPP Co shall be required to take out and maintain or procure the taking out and maintenance of, from the date on which the relevant risk commences,

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in accordance with Clause 44.1 (Insurance Cover), until the date that is 12 (twelve) years after the date of Completion, professional indemnity insurance in the name of the Process Designer and any guarantor of the Process Designer to indemnify the insured parties in respect of their legal liability arising out of their professional activities in connection with the design, fabrication, construction, erection, installation, testing and commissioning of the Works and the Facility having a minimum level of indemnity of 12,500,000 (twelve million, five-hundred thousand) Euro for any occurrence or series of occurrences arising out of each and every event in any 1 (one) year period (the "PI Insurance").

(c) The PPP Co shall:

(i) upon the request of the Authority, provide evidence satisfactory to the Authority of the PI Insurance being in full force and effect in accordance with the provisions of Clause 44.13(b) during the period specified therein, including:

(A) details of cover;

(B) confirmation of territorial limits;

(C) confirmation of indemnity limit;

(D) levels of excess;

(E) insurer(s); and

(F) policy number;

(ii) provide the Authority with copies of all notices under the PI Insurance relative to the Project;

(iii) provide the Authority with notice of:

(A) any cancellation of the PI Insurance not less than 20 (twenty) Working Days prior to the relevant cancellation date;

(B) any material changes to or suspension of cover relevant to the Project not less than 20 (twenty) Working Days prior to the relevant change or suspension;

(C) any event of which it becomes aware, or of which it could reasonably be expected to become aware, which may vitiate the PI Insurance;

(D) any act, omission or event which may adversely affect the terms and scope of the PI Insurance relevant to the Project or invalidate or render it unenforceable;

(iv) provide such information to the Authority as the Authority may reasonably request in relation to any claim or circumstance notified to

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it under the PI Insurance in respect of the Project and any potential breach of the aggregate limit of the policy;

(v) disclose to the relevant insurers:

(A) any matters which could reasonably be expected to be material in the context of the Project; and

(B) any of the other insurances required to be maintained pursuant to this Clause 44 (Insurance) and Schedule 22 (Insurances); and

(vi) include the interests (if any) of the Authority in any claim or circumstances notified under the PI Insurance relative to the Project and provide a copy of such notification to the Authority.

44.14 Indexation

The limit of indemnity and the maximum deductible amount for each of the Insurances required pursuant to Part 3 of Schedule 22 (Insurances) shall be Indexed, provided that such limits of indemnity and maximum deductibles shall only be increased on each renewal date such that the limit or deductible that is Indexed becomes equal to or exceeds the next whole insurable amount or deductible (as the case may be) available in the insurance market.

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PART 13 - COMPENSATION EVENTS, RELIEF EVENTS AND FORCE MAJEURE EVENTS

45. COMPENSATION EVENTS

45.1 Entitlement to Relief and Compensation

If during the Construction Period, as a direct result of the occurrence of a Compensation Event:

(a) the PPP Co is unable to achieve Operational Commencement Date on or before the Target Operational Commencement Date;

(b) the PPP Co is unable to comply with its obligations under this Agreement; or

(c) the PPP Co incurs or suffers any Loss,

then the PPP Co is entitled to apply for relief from its obligations or claim compensation under this Agreement, or both.

45.2 Compensation Event Details

To obtain relief and/or claim compensation under Clause 45.1 (Entitlement to Relief and Compensation), the PPP Co shall:

(a) as soon as practicable, and in any event within 14 (fourteen) days of the PPP Co becoming aware that the Compensation Event has caused or is likely to cause delay, breach of an obligation under this Agreement and/or the PPP Co to incur or suffer any Loss, give to the Authority a notice of its claim for an extension of the Target Operational Commencement Date, payment of compensation and/or relief from its obligations under this Agreement;

(b) within 21 (twenty-one) days of receipt by the Authority of the notice referred to in Clause 45.2(a), give full details of the Compensation Event, the extension of time and/or any Estimated Variation in Proj ect Costs claimed; and

(c) demonstrate to the reasonable satisfaction of the Authority that:

(i) the Compensation Event was the direct cause of the Estimated Variation in Project Costs and/or any delay in the achievement of the Target Operational Commencement Date; and

(ii) the Estimated Variation in Project Costs, time lost and/or relief from the obligations under this Agreement, could not reasonably be expected to be mitigated or recovered by the PPP Co acting in accordance with Good Industry Practice.

45.3 Further Information

The PPP Co shall immediately notify the Authority if at any time it receives or becomes aware of any further relevant information relating to the Compensation Event referred to in Clause 45.2 (Compensation Event Details), giving details of that

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