SCHEDULE 9Protective provisions

PART 12For the protection of Immingham Oil Terminal operators

Indemnity and other provisions

174.—(1) The undertaker must indemnify and keep the IOT Operators indemnified against all reasonable loss, costs, charges, damages, liability and expenses reasonably suffered or incurred by the IOT Operators by reason of—

(a)the construction, operation, maintenance, repair and decommissioning of any relevant work carried out under this Part of this Schedule or the failure of it;

(b)the carrying out of the authorised development;

(c)the use or occupation of land over or in the vicinity of any apparatus or in the vicinity of any premises in connection with the carrying out of the authorised development;

(d)any matters arising directly out of or in connection with the Order; and/or

(e)any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon the construction, operation, maintenance, repair and decommissioning of any relevant work.

(2) The fact that any act or thing may have been done by the IOT Operators on behalf of the undertaker or in accordance with a plan approved by the IOT Operators or in accordance with any requirement of the IOT Operators or under their supervision will not (unless sub-paragraph (3) below applies), excuse the undertaker from liability under the provisions of sub-paragraph (1) unless the IOT Operators fail to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.

(3) Nothing in sub-paragraph (1) shall impose any liability on the undertaker in respect of—

(a)any damage or interruption to the extent that it is attributable to the neglect or default of the IOT Operators, their officers, servants, contractors or agents; and/or

(b)any indirect or consequential loss of the IOT Operators or any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption which is not reasonably foreseeable.

(4) The undertaker and the IOT Operators must at all times take reasonable steps to prevent and mitigate any loss, damage, liability, claim, cost or expense (whether indemnified or not) which either suffers in connection with this Schedule.

(5) The undertaker warrants that—

(a)the information it or any of its employees, agents or contractors provide to the IOT Operators about the relevant works or the authorised development and on which the IOT Operators relies in the design of and carrying out of any of the relevant works is accurate; and

(b)the undertaker or any of its employees, agents or contractors have exercised all the reasonable skill, care, and diligence to be expected of a qualified and experienced member of their respective profession.

(6) The IOT Operators must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as they would as if settling third party claims on their own behalf from their own funds.

(7) The IOT Operators must give the undertaker reasonable notice of any claim or demand under sub-paragraph (1) above.

(8) The undertaker must not commence any relevant works unless and until the IOT Operators has confirmed to the undertaker in writing that it is satisfied (acting reasonably but subject to all necessary regulatory constraints) that the undertaker has procured acceptable public liability insurance with a reputable insurer against its liabilities in accordance with the terms and level of cover notified under sub-paragraph ‎(9) or, in the case of dispute, in accordance with the terms and level of cover determined by an expert under paragraph ‎178 and evidence of that insurance must be provided on request to the IOT Operators.

(9) Not less than 30 days before commencing any relevant works or before proposing to change the terms of the insurance policy, the undertaker must notify the IOT Operators of details of the terms of the insurance policy that it proposes to put in place, including the proposed level of the cover to be provided.

(10) The undertaker must maintain insurance in relation to the authorised development affecting the IOT Operators during the construction, operation, maintenance, repair and decommissioning of the authorised development.

(11) If the IOT Operators has a dispute about the proposed insurance (including the terms or level of cover) to be provided under sub-paragraph ‎(8)—

(a)The IOT Operators may refer the matter to an expert for determination under paragraph ‎178; and

(b)the undertaker may put in place an insurance policy it considers to be appropriate and continue with the authorised development at its own risk whilst the determination under paragraph ‎178 is complete, following which the undertaker must adjust the insurance policy if necessary to accord with the determination.