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163项目 Project Insurances

Schedule计划 9

Project Insurances项目保险

In this Schedule 在此计划9:

 

Prudent Insurance Standard means that standard of insurance which a Reasonable and Prudent Contractor (which does not self-insure except in respect of deductibles required by insurances generally) could reasonably be expected to maintain by persons providing finance to it on a similar basis and having similar interests as the Finance Parties; and

 

Reasonable and Prudent Contractor means a person seeking, in good faith, to perform contractual obligations and, in so doing and in the general conduct of its undertaking, exercising that degree of skill of diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced operator complying with applicable Law engaged in the same type of undertaking in the same or similar circumstances and conditions.

 

PART 1 - EMPLOYER’S INSURANCES

1.         General requirements

Without limiting the obligations, liabilities and responsibilities of the Contractor and/or any Subcontractor in any way whatsoever (including but not limited to any requirement in the Contract for the provision of any other insurances), the Employer shall effect and maintain as appropriate on a co-insured basis for the Employer, the Contractor and the Lenders, any Subcontractors, professional advisers for their on-site activities and any other persons who are required to be insured by the Lenders (or as otherwise specified below), the  insurances as listed in Appendix 1 hereto, which are subject to the terms, limits, exceptions and conditions of the respective policy or policies, but which the Employer may change in its discretion upon notification to the Contractor ("Employer Insurances").

2.         Payment of claims under Employer Insurances

2.1                   Any amount which becomes payable to the Contractor as a result of a claim under the Employer's Insurances shall be paid net of the deductible to the Employer who shall pay the Contractor from the proceeds of such payment upon rectification, repair or reinstatement of the loss or damage and this provision shall not in any way affect the Contractor’s obligations, liabilities or responsibilities in terms of the Contract, subject to Employer's commitments under the Financing Agreements.

2.2                   In respect of any amount which becomes payable to a third party as a result of a claim under the Employer Insurances the Contractor or any of its Subcontractors shall be required to pay the amount of the appropriate deductible to the insurer to facilitate the settlement of the third party claim.

3.         Responsibility for amounts not recovered

Any amounts not insured or not recovered, including any deductibles, from the insurers in respect of the Works, terrorism, public liability, marine cargo and any other insurances maintained by the Employer, shall be borne by the Contractor.

4.         Remedy on Employer's Failure to Insure

If and so far as the Employer fails to effect and keep in force any of the Employer Insurances referred to in this Schedule, then the Contractor may effect and keep in force any such insurance and pay any premium as may be necessary for that purpose and add the amount so paid to any monies due or to become due to the Contractor, or recover the same as a debt due from the Employer.

PART 2 - CONTRACTOR INSURANCES

1.         General Contractor requirements

Notwithstanding anything elsewhere contained in this Contract and without limiting the obligations, liabilities and responsibilities of the Contractor and any of its Subcontractors in any way whatsoever (including but not limited to any requirement under the Contract for the provision of any other insurances) the Contractor and its Subcontractors (where applicable) shall, for the duration of the Contract, effect and maintain the insurances as listed in Appendix 2 hereto ("Contractor Insurances").

2.         Additional Requirements relating to Contractor Insurances

2.1                   The Contractor shall procure that the Contractor's Insurances are purchased by or on behalf of the Contractor through insurance brokers approved in writing by the Employer, such approval not to be unreasonably withheld.

2.2                   In the case of insurances which are purchased, effected or maintained with insurers  who have and maintain the Required Rating:

2.2.1                           The choice of insurers shall be approved (such approval not to be unreasonably withheld or delayed) in writing (as regards participation, rating, relevant underwriting expertise and size of commitment) prior to inception and at each subsequent renewal by the Employer (in consultation with its insurance advisor) if cover is not renewed on an expiring basis or insurers no longer meet the criteria.  The Contractor shall immediately notify the Employer if it becomes aware of any change in any insurer’s credit rating and shall use its reasonable endeavours to make itself aware of any such change. The Contractor shall not be in breach of this Contract in the period after an insurer’s credit rating falls below the Required Rating and whilst the Contractor is seeking the Employer's approval of alternative insurance.  In the event that the Contractor is seeking alternative insurance, the Contractor will be in breach of this Contract if it has not procured insurance in compliance with the terms of this Schedule 9:

2.2.1.1                                    within one month of any change in the insurer’s credit rating such that it does not meet the Required Rating;  or

2.2.1.2                                    by the date of the next renewal.

2.3                   The Contractor shall procure that each of the Contractor's Insurance policies taken out shall:

2.3.1                           be in such form and substance, consistent with the obligations of the Contractor under this Schedule 9, as may be approved from time to time by the Employer (after consulting with its insurance advisor) (such approval not to be unreasonably withheld or delayed) and does not otherwise contain any terms which could reasonably be expected in any way to prejudice the interests of the Employer and/or the Lenders provided that the Contractor shall not be required to obtain the Employer's prior approval to any mid-term policy endorsement which does not reduce any aspect of cover provided or otherwise prejudice the interests of any insured party;

2.3.2                           provide that the relevant insurers shall waive any rights of subrogation howsoever arising which they may have or may acquire against any of the Lenders and/or the Employer to the fullest extent commercially available;

2.3.3                           ensure that the Employer shall in no circumstances have any liability for payment of premiums or other obligations to the insurers of any insurance unless the Employer assumes such liability having enforced its rights under this Contract;

2.3.4                           be effected and maintained in the amounts specified in Appendix 2 (as may be varied from time to time in accordance with the provisions of this Schedule 9);

2.3.5                           be in a form and on terms and subject only to any coverage exclusion or exception that is:

2.3.5.1                                    specified within Appendix 2, as a permitted coverage exclusion or exception;  or

2.3.5.2                                    previously approved in writing by the Employer (in consultation with the Employers insurance advisor);  and

2.3.5.3                                    other than in relation to Employers’ liability insurances and insurance required by Law, have attached the endorsements substantially in the form specified in Appendix 2 or have incorporated such endorsements into the relevant policy in a manner satisfactory to the Employer's insurance advisor.

2.4                   The Contractor shall procure that in each insurance policy taken out, the Contractor is named as a principal insured

2.4.1                           Disclosure of material circumstances

The Contractor acknowledges that it is responsible to ensure that every material circumstance which ought to be disclosed at any time to any insurer of every insurance policy is fully and fairly disclosed to them without misrepresentation.

2.4.2                           Disclosure of Information

Without prejudice to its general duty to disclose to insurers all material information, the Contractor shall ensure that full and accurate disclosure is made as soon as reasonably possible without misrepresentation to the appointed insurance broker and lead insurer(s) by or on its behalf and shall use its reasonable endeavours to ensure that full and accurate disclosure is made by each Subcontractors of:

2.4.2.1                                    all information available to the Contractor which the insurer specifically requests to be disclosed;

2.4.2.2                                    all information which the Contractor's insurance brokers advise should be disclosed to the insurers or which they or their agents, acting reasonably, requires to be disclosed to the insurers, without prejudice to the above;

2.4.2.3                                    all information (including details of any significant problems or incidents encountered in relation to the Project) material to the insurance coverage; and

The Contractor shall use reasonable endeavours to procure that its Subcontractors engaged on the Project as well as the Contractor disclose to the Employer as soon as reasonably possible all information which may be material in relation to the Project Insurances on which those persons are respectively named as insureds until the expiry of those insurances and the Contractor shall as soon as reasonably possible forward all information received from those persons relevant to any of the Project  Insurances to the relevant insurers.

3.         Additional undertakings

3.1                   Undertakings

The Contractor undertakes in respect of the Contractor Insurances:

3.1.1                           to pay or procure due and punctual payment of all premiums as required by the terms of the Contractor Insurances, to produce as soon as reasonably possible to the Employer on request copies of receipts (or other evidence of payment) for all premium payments which the Contractor or any of its agents is able to provide and, in the case of renewals of any Contractor Insurances, to produce evidence of such renewal and the terms thereof;

3.1.2                           if required, to promptly provide to the Employer copies of all slips, cover notes and policies (including endorsements) issued from time to time in relation to the Contractor Insurances, and of all changes requested or effected thereto to do nothing and, so far as is in the reasonable control of the Contractor, ensure that no other insured party does anything (including without limitation, failure to disclose any material fact) whereby any Contractor Insurance, or other insurance required to be maintained under any other contract to which it is a party relating to the Project, is or could reasonably be expected to be rendered void or voidable in whole or in part or suspended, impaired or defeated in whole or in part, or any claim becomes uncollectable in full or part;

3.1.3                           not to purchase or maintain any insurance of any risk which it is required to insure under this Contract other than as is provided in this Contract without the prior written consent of the Employer;

3.1.4                           to comply with the requirements of insurers in relation to any Contractor Insurance;

3.1.5                           to maintain or procure the maintenance of records of all incidents involving any loss and make those records, or true copies of them, available to the Employer on request;

3.1.6                           not to do or permit to be done anything in relation to the Project Insurances which is liable to adversely affect the rights of the Employer and/or the Lenders thereunder or their interests in them; and

3.1.7                           to notify the Employer promptly of any fact, event or circumstance of which it is aware which has caused or may cause it to be in breach of any provision of this Schedule 9.

3.2                   Insurance Broker’s Letter of Undertaking and responsibilities

3.2.1                           The Contractor shall, and shall use reasonable endeavours to procure that all insurance brokers through whom any Contractor Insurances are effected or maintained shall, maintain intact its or their files (including all documents disclosed and correspondence in connection with the placement of the Contractor Insurances and claims thereunder) until the termination or expiration of this Contract in accordance with its terms

4.         Changes in the Contractor Insurances

4.1                   Additional Insurances

The Contractor agrees that it will purchase and maintain such additional insurance as the Employer may reasonably require in order to protect the Employer's and/or the Lenders interests in relation to the Project.  Such requirement shall take into consideration (i) market availability in respect of risks, liabilities and amounts of insurance; (ii) the applicable Prudent Insurance Standard, (iii) the cost of such additional insurance in the context of the finances of the Project and (iv) prevailing project finance practice in the renewable power sector in South Africa.

4.2                   Material variations in cover

4.3                   Unavailability of any Insurance

If at any time any Contractor's Insurance is not or ceases to be available, or is not or ceases to be available at commercially reasonable rates, the Contractor will:

4.3.1                           promptly notify the Employer of such unavailability;

4.3.2                           at all times during any such unavailability seek to reduce hazard and minimise risk to the Project in accordance with paragraph 4.4 below;

4.3.3                           forthwith effect and maintain insurances on alternative terms approved in writing by the Employer (acting reasonably and such approval not to be unreasonably withheld or delayed);

4.3.4                           promptly following each such enquiry, provide the Employer with information on the position in the relevant insurance market;

4.3.5                           if so required by the Employer (acting reasonably following consultation with the Employer's insurance advisor), forthwith effect revised insurances to include such terms as have become available; and

4.3.6                           in complying with this paragraph, not be in breach of the Contract as a result of such unavailability.

4.4                   Recommended Measures

4.4.1                           Promptly following receipt of notice pursuant to paragraph 4.3 that any Contractor's Insurance is unavailable or is not available at commercially reasonable rates, the Employer shall determine (acting reasonably and following consultation with the Employer's insurance advisor), what measures (if any) should be taken by the Contractor to mitigate the relevant risks and such other steps as shall be taken by the Contractor (if any) in such circumstances ("Recommended Measures").

4.4.2                           The Contractor agrees that, in addition to complying with its obligations under paragraph 4.4.1, it shall promptly execute and deliver all further agreements, documents and certificates and shall take all further action that, in the reasonable judgment of the Employer, may be necessary or desirable in order to fully effect the Recommended Measures.

5.         Reporting of insurance claims

5.1                   The Contractor shall immediately, in accordance with any policy under which a claim will be made, in addition to any statutory requirements or other requirements, report all incidents which may give rise to claims and report all loss or damage to the Works or any part thereof or to any equipment and all incidents that may give rise to loss or damage to property and/or liability for death or injury to third parties and damage to third party property therein simultaneously to both the Employer's Representative and the Employer's insurance broker.

5.2                   The Contractor shall complete the incident report form available from the Employer's insurance brokers, and must return the completed incident report form to the Employer's insurance brokers without delay, and in accordance with the policy under which the claim will be made.

5.3                   The Contractor shall negotiate settlement of claims with the Employer and the Employer's Insurers through the Employer's insurance broker.

5.4                   The Employer, its insurance broker and the Employer's Insurers shall have the right to make all and any enquiries on the Site or elsewhere as to the cause and result of any such occurrence and the Contractor and / or Subcontractor shall co-operate in the carrying out of such enquiries.

5.5                   The Contractor shall be liable to the Employer for any amount paid to it by the Employer in respect of the Works which would have been recoverable from the insurers under the policy of insurance had it not been for the failure of the Contractor to comply with the obligations herein contained, and any such amount shall be a debt due from the Contractor to the Employer.

5.6                   Any such amount paid by the Employer shall be a debt due from the Contractor to the Employer.

6.         Insurance Proceeds

All proceeds of Project Insurances payable or received by or on behalf of the Contractor shall be paid and applied in accordance with the terms of the Contract.

7.         Employer power to insure

Subject to paragraph 4.3 above, if at any time and for any reason any insurances required to be maintained under this Schedule 9 are not in full force and effect on the terms or for the insured values required under this Schedule 9 then the Employer  shall be entitled thereupon, or at any time whilst the same is continuing, and following consultation with the Contractor, to procure and pay for such insurance, which amounts may be set-off or deducted from any monies payable to the Contractor under the Contract.

8.         Procedure for agreeing and determining Contractor's  Insurances

8.1                   Reviews of amounts and scope of Insurances

The Contractor shall, not later than the date (each, in this paragraph 8, a “Contractor's Proposal Date”) falling 45 days (or such other period as the Employer and the Contractor may agree) prior to the taking-out, renewal or expiry date in respect of each Contractor's Insurance ("Review Date"), deliver to the Employer a notice stating the Contractor's proposals as to:

8.1.1                           the changes (if any) since the Signature Date or the previous Contractor's Proposal Date (if later) with regard to that insurance (in this Schedule 9, the "Relevant Insurance") in the risks or liabilities to be insured pursuant to this Schedule 9;

8.1.2                           the insured amounts in respect of all other risks required to be insured pursuant to the Relevant Insurance;

8.1.3                           the amount of the deductibles applicable to the Relevant Insurance;

8.1.4                           scope of cover; and

8.1.5                           any change of insurers or broker (insofar as the Contractor becomes aware of such change), in each case, for the period of 12 Months (or such other period as may be agreed between the Contractor and the Employer) prior to the Review Date (each such period, in this paragraph 8, an "Insurance Period") together with information relating thereto reasonably required by the Employer (in consultation with the Employer's insurance advisor).  The Contractor shall promptly notify the Employer of any change required to its proposal following the Contractor's Proposal Date which is the result of changes in the options available in the insurance market.  The Employer shall consider the requested changes together with the Contractor's original proposal in accordance with paragraph 8.2 or 8.3 below as the case may be.

8.2                   Agreement of proposals

Within 10 (ten) days of receipt of any proposal under paragraph 8.1, the Employer shall, taking into account the Prudent Insurance Standard, inform the Contractor whether or not the relevant proposal is agreed in whole or in part. 

8.3                   Failure to notify the Employer

If the Contractor fails to deliver any notice referred to in paragraph 8.1 by the Contractor's Proposal Date, the Employer (acting reasonably, after consulting with the Employer's insurance advisor and taking into account the Prudent Insurance Standard) may specify any change, whether of amount or otherwise, such change to be included in a notice delivered to the Contractor, and paragraph 8.4 below shall apply (having made all necessary changes) to the matters specified in such notice as if they had been agreed under paragraph 8.2above.

8.4                   The Contractor to effect appropriate Insurances

Forthwith upon receipt of notice from the Employer of any agreement or determination under paragraph 8.2 or 8.3 above, the Contractor shall insure against the risks, in the amounts, and with the deductibles so agreed or determined, with effect from the Review Date immediately following the Contractor’s Proposal Date and throughout the Insurance Period immediately following that date.

9.         Subcontractors

9.1                   The Contractor shall:

9.1.1                           ensure that all potential and appointed Subcontractors are aware of the whole content of this Schedule,

9.1.2                           enforce compliance by Subcontractors with the whole of this Schedule,  and

where appropriate, shall ensure that all potential and appointed Subcontractors have arranged insurances in a like for like manner.

Appendix 1

Employer Insurances

1.         Employer Insurances

1.1                   Marine Transit and Inland Transit in respect of the importation of plant, equipment or material for incorporation in the Works transported by sea, air, road or rail from its place of manufacture until delivery to the Site on a new replacement value plus 10% basis subject to normal terms, exceptions and conditions applicable to this type of insurance.

1.2                   Construction All Risks in respect of the Facility together with equipment for incorporation therein and all temporary works. The policy will provide cover against accidental physical loss or damage including SASRIA (Riot and Strike) / SASRIA Wrap and will be subject to the normal terms, exceptions and conditions for this type of insurance.

The policy is to be effected and maintained for the period commencing no later than the Effective Date for the duration of the construction phase until the date of issue of the Facility Take-over Certificate and for a period of 24 months for maintenance and defects liability thereafter.

1.3                   Contingent Employer's Liability 

The Employer shall insure against employer's liability with respect to the Employer's Personnel with a limit of indemnity of not less than ZAR 20,000,000 (Twenty million Rand).

The coverage does not include Contractor or its Subcontractors.

1.4                   General Third Party Public Liability

The Employer shall insure against legal liability for accidental death of or injury to third parties and accidental loss of or damage to third party property arising out of or in connection with the operation of the Project with an indemnity limit of not less than ZAR 200,000,000 (two hundred million rand).

1.5                   Project Specific Professional Indemnity

With a limit of indemnity of for each and every loss of no less than ZAR 100,000,000 (one hundred million rand) and in the aggregate for the period of insurance arising out of the performance of the contract.

The Employer shall maintain the professional indemnity insurance for the period of the Contract (including retro-active cover for conceptual design) and a run off period of 36 (thirty six) months following testing and commissioning and Facility Taking Over.

2.         Deductibles

The Contractor will be liable for the amount of the deductible (first amount payable) in respect of any claim made by or against the Contractor or Contractor’s Subcontractors under the Employer Insurances.

Other than in respect of insurances that the Employer is required to have by any applicable Law and Contingent Employer’s Liability, the Contractor will be liable for the amount of the deductible (first amount payable) in respect of any claim made by or against the Contractor or Contractor’s Subcontractors under the insurances effected by the Employer.

For the avoidance of doubt, the deductibles for which the Contractor is responsible and which are applicable in respect of each and every occurrence or series of occurrences attributable to any one event giving rise to loss or damage or liability identifiable are:

Marine Transit and Inland Transit  - ZAR250,000 (Two hundred and fifty thousand Rand) maximum deductible to apply to each and every claim

Construction All Risks   – ZAR250,000 (Two hundred and fifty thousand Rand) maximum deductible to apply to each and every claim

General Third Party Public Liability – ZAR50 000 (Fifty thousand Rand) maximum deductible for each and every claim

Project Specific Professional Indemnity  ZAR2,500, 000 (Two million five hundred thousand Rand) maximum deductible to apply to each and every claim

 


 

 

Appendix 2

Contractor Insurances

1.         Contractor Insurances

1.1                   Insurance of Contractor's plant and equipment

The Contractor's equipment and all other things (other than equipment for incorporation in the Works) brought onto the Site by the Contractor as well as existing and new chattels must be insured against all risks of loss or damage for a sum sufficient to provide for their replacement at the Site. Such insurances shall be extended to include SASRIA (Riot and Strike) insurance and waive subrogation rights in favour of the Employer.

1.2                   Off Site insurance

Where the Contract involves the manufacturing and/or fabrication of the Works or Equipment, or parts thereof at premises other than at the Site, the Contractor shall satisfy the Employer that all Plant, Goods, Materials for incorporation in the Work, and Contractor Equipment are adequately insured during manufacture and / or fabrication. In the event of the Employer having an insurable interest in such Plant, Goods, Materials for incorporation in the Work, or Contractor Equipment during manufacture or fabrication, then such interest shall be included in the relevant policies of insurance.

1.3                   Motor Vehicle Liability

The Contractor shall insure against legal liability to third parties for death, bodily injury or damage to third party property arising out of the use of motor vehicles licensed for road use owned, hired, leased or borrowed by the Contractor for a limit of not less than R20,000,000 (twenty million Rand).

1.4                   Insurance against accidents to workmen

The Contractor shall also insure against any liability under the Compensation for Occupational Injuries and Diseases Act of 1993 (“COIDA”) as may be amended and any liability arising from compliance with the provisions of the Occupational Health and Safety Act No 85 of 1993 (“OHS”) as may be amended and shall further ensure that every Subcontractor (whether nominated or otherwise) has insured their workmen in terms of this legislation.

The Contractor shall insure against such liability and shall continue such insurance during the whole of the time that any persons are employed by it on the Works. Provided that, in respect of any persons employed by any Subcontractor, the Contractor's obligations to insure as aforesaid under this sub-clause shall be satisfied if the Subcontractor shall have insured against the liability in respect of such persons in such manner that the Employer is indemnified under the policy, but the Contractor shall require such Subcontractor to produce to the Employer, when required, evidence of compliance with COIDA and the OHS, and the receipt for the payment of the current premium / levy.

1.5                   Contingent Employer's Liability

The Contractor shall insure against employer's liability in respect of the Contractor Personnel with a limit of indemnity of not less than ZAR20,000,000 (twenty million Rand)]

1.6                   Unemployment Insurance Act of 2001 as amended

The Contractor shall provide any insurance required in terms of this legislation.

1.7                   Other insurances

Without prejudice to other provisions of this Schedule the Contractor shall effect and maintain in full force any other insurance which the Contractor is required to have by any applicable Law; and effect and maintain those insurances which it is required to have by the terms of any Project Document or any other contract in respect of the Project to which it is a party. Such other insurance may include its Subcontractors.