Common use of Market Testing Clause in Contracts

Market Testing. Each New Project referred to in clause 8.2(a)(iii) and/or in clause 8.2(c) shall need to be Market Tested with such New Project being referred to as a Market Tested Project. All Market Testing shall be carried out in accordance with part 1 of Schedule 4 (Market Testing Procedure) and shall be conducted openly, fairly and with full transparency and in a manner such that the Local Authority is able to check compliance with the requirements in this clause 8.4. Once a Representative New Project has been Market Tested in accordance with this clause 8 and Schedule 4 (Market Testing Procedure) then it shall not thereafter be mandatory for the LEP to Market Test a Supply Chain Member in relation to any subsequent New Project of the Same Type where the Supply Chain Member was appointed in relation to the relevant Market Tested Project. Instead, it shall be sufficient, in relation to that Supply Chain Member, for the LEP to follow the benchmarking provisions in clause 8.3 in relation to that Supply Chain Member in the context of the relevant New Project. If this Agreement is extended beyond the Initial Expiry Date until the Extended Expiry Date then the provisions of clauses 8.4 (a) to (c) above shall apply mutatis mutandis to New Projects which receive Stage 1 Approval after the Initial Expiry Date. The costs of the LEP in carrying out all Market Testing in accordance with Schedule 4 (Market Testing Procedure) will be met by the LEP and will be recoverable as a submission cost through the Project Management Fee chargeable in relation to that project under the terms of clause 9. Throughout the course of this Agreement and of each New Project carried out under this Agreement, the LEP shall monitor and record in writing its predicted Capital Cost and Whole Life Cost for each New Project (for the LEP and/or the relevant Project Company, as the case may be) and any increases or reductions in such estimated cost from time to time together with the reasons for all such increases or reductions. The LEP shall also record the Capital Cost and Whole Life Cost of each New Project actually incurred by the LEP and/or relevant Project Company (as the case may be) and, to the extent that the information becomes available over time, the actual cost of maintaining and repairing each New Project throughout the period that the LEP and/or the relevant Project Company (as the case may be) is obliged to maintain and repair such project. The LEP will benchmark the final costs of each New Project incurred by the LEP and/or the relevant Project Company (as the case may be) and, to the extent that the information becomes available over time, the actual cost of maintaining and repairing each New Project throughout the period that the LEP and/or relevant Project Company (as the case may be) is obliged to maintain and repair each New Project against the final costs of all subsequent New Projects. The LEP will also break down such final costs into comparable units of costs for different components of such New Projects as agreed with, or as reasonably requested by, the Local Authority (and/or PfS under the Shareholders Agreement), so that a comparison can be made between the costs of similar projects and similar components from similar and different projects under the BSF Programme. The LEP shall provide (as appropriate) and keep a written record of all monitoring of costs carried out under this Agreement in such form as the Local Authority (and/or PfS under the Shareholders Agreement) may reasonably request for a period of six years after the creation of such records and shall provide copies of such records, together with such further information and/or reports as the Local Authority (and/or PfS under the Shareholders Agreement) may reasonably request, to the Local Authority (and/or PfS under the Shareholders Agreement) to enable it to record and assimilate the performance of the LEP and its Project Companies and to record and disseminate any lessons to be learned relevant to the BSF Programme or any successor initiative. In relation to any proposed changes under any Project Agreement (whether the proposed change is a Qualifying Change in Law or an Authority Change (as such terms are defined in the relevant Project Agreement) or any other matter affecting the relevant project which may have an equivalent effect on other LEP Projects), the LEP shall work with the relevant Project Service Providers to achieve the best value solution for the Local Authority across the relevant LEP Projects in respect of such Qualifying Change in Law, Authority Change or any other such matter as described in this clause. As between the LEP and the Local Authority, the LEP shall be entirely responsible for the safety of any design which forms part of any prospective New Project being developed pursuant Schedule 3 (New Project Approval Procedure) and for the adequacy, stability and safety of all site operations and methods of construction. The LEP hereby elects to be treated as the only client in respect of each such New Project pursuant to Regulation 8 of the CDM Regulations. The LEP shall not, prior to contract signature in relation to the relevant New Project, seek in any way to withdraw, terminate or derogate from such election. The LEP shall observe, perform and discharge and/or shall procure the observance, performance and discharge of all the obligations, requirements and duties arising under the CDM Regulations in connection with the Stage 1 Submission Notwithstanding the election made under clause 8.7(a), the Local Authority shall observe and continue to observe the duties that are, pursuant to Regulation 8 of the CDM Regulations, to remain with the Local Authority, notably those duties under Regulations 5(1)(b), 10(1), 15 and 17(1).

Market Testing. Each New Project referred to in clause 8.2(a)(iii) and/or in clause 8.2(c) shall need to be Market Tested with such New Project being referred to as a Market Tested Project. All Market Testing shall be carried out in accordance with part 1 of Schedule 4 (Market Testing Procedure) and shall be conducted openly, fairly and with full transparency and in a manner such that the Local Authority is able to check compliance with the requirements in this clause 8.4. Once a Representative New Project has been Market Tested in accordance with this clause 8 and Schedule 4 (Market Testing Procedure) then it shall not thereafter be mandatory for the LEP to Market Test a Supply Chain Member in relation to any subsequent New Project of the Same Type where the Supply Chain Member was appointed in relation to the relevant Market Tested Project. Instead, it shall be sufficient, in relation to that Supply Chain Member, for the LEP to follow the benchmarking provisions in clause 8.3 in relation to that Supply Chain Member in the context of the relevant New Project. If this Agreement is extended beyond the Initial Expiry Date until the Extended Expiry Date then the provisions of clauses 8.4 (a) to (c) above shall apply mutatis mutandis to New Projects which receive Stage 1 Approval after the Initial Expiry Date. The costs of the LEP in carrying out all Market Testing in accordance with Schedule 4 (Market Testing Procedure) will be met by the LEP and will be recoverable as a submission cost through the Project Management Fee chargeable in relation to that project under the terms of clause 9. Throughout the course of this Agreement and of each New Project carried out under this Agreement, the LEP shall monitor and record in writing its predicted Capital Cost and Whole Life Cost for each New Project (for the LEP and/or the relevant Project Company, as the case may be) and any increases or reductions in such estimated cost from time to time together with the reasons for all such increases or reductions. The LEP shall also record the Capital Cost and Whole Life Cost of each New Project actually incurred by the LEP and/or relevant Project Company (as the case may be) and, to the extent that the information becomes available over time, the actual cost of maintaining and repairing each New Project throughout the period that the LEP and/or the relevant Project Company (as the case may be) is obliged to maintain and repair such project. The LEP will benchmark the final costs of each New Project incurred by the LEP and/or the relevant Project Company (as the case may be) and, to the extent that the information becomes available over time, the actual cost of maintaining and repairing each New Project throughout the period that the LEP and/or relevant Project Company (as the case may be) is obliged to maintain and repair each New Project against the final costs of all subsequent New Projects. The LEP will also break down such final costs into comparable units of costs for different components of such New Projects as agreed with, or as reasonably requested by, the Local Authority (and/or PfS under the Shareholders Agreement), so that a comparison can be made between the costs of similar projects and similar components from similar and different projects under the BSF Programme. The LEP shall provide (as appropriate) and keep a written record of all monitoring of costs carried out under this Agreement in such form as the Local Authority (and/or PfS under the Shareholders Agreement) may reasonably request for a period of six years after the creation of such records and shall provide copies of such records, together with such further information and/or reports as the Local Authority (and/or PfS under the Shareholders Agreement) may reasonably request, to the Local Authority (and/or PfS under the Shareholders Agreement) to enable it to record and assimilate the performance of the LEP and its Project Companies and to record and disseminate any lessons to be learned relevant to the BSF Programme or any successor initiative. In relation to any proposed changes under any Project Agreement (whether the proposed change is a Qualifying Change in Law or an Authority Change (as such terms are defined in the relevant Project Agreement) or any other matter affecting the relevant project which may have an equivalent effect on other LEP Projects), the LEP shall work with the relevant Project Service Providers to achieve the best value solution for the Local Authority across the relevant LEP Projects in respect of such Qualifying Change in Law, Authority Change or any other such matter as described in this clause. As between the LEP and the Local Authority, the LEP shall be entirely responsible for the safety of any design which forms part of any prospective New Project being developed pursuant Schedule 3 (New Project Approval Procedure) and for the adequacy, stability and safety of all site operations and methods of construction. The LEP hereby elects to be treated as the only client in respect of each such New Project pursuant to Regulation 8 of the CDM Regulations. The LEP shall not, prior to contract signature in relation to the relevant New Project, seek in any way to withdraw, terminate or derogate from such election. The LEP shall observe, perform and discharge and/or shall procure the observance, performance and discharge of all the obligations, requirements and duties arising under the CDM Regulations in connection with the Stage 1 Submission New Project Proposal Notwithstanding the election made under clause 8.7(a(a), the Local Authority shall observe and continue to observe the duties that are, pursuant to Regulation 8 of the CDM Regulations, to remain with the Local Authority, notably those duties under Regulations 5(1)(b), 10(1), 15 and 17(1).