The A19/A1058 Coast Road (Junction Improvement) Development Consent Order 2016

Indemnity

23.—(1) Subject to sub-paragraphs (2), (3) and (4), if by reason or in consequence of the construction of any works carried out under this Part of this Schedule or in consequence of the construction, use, maintenance of the works by or on behalf of the undertaker or failure of any of the works in consequence of any act or default of the undertaker (or any person employed or authorised by it) in the course of carrying out such works, there is subsidence resulting from any of the works, or any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of the utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by the utility undertaker, or the utility undertaker becomes liable to pay any amount to any third party, the undertaker must—

(a) bear and pay on demand the cost reasonably incurred by the utility undertaker in making good such damage or restoring the supply; and

(b) indemnify the utility undertaker for any other expenses, loss (other than consequential losses), demands, proceedings, damages, claims, penalties or costs (except to the extent that those liabilities are due to the sole, partial or complete act, neglect or default of the utility undertaker) incurred by or recovered from the utility undertaker.

(2) The fact that any act or thing may have been done by the utility undertaker on behalf of the undertaker or in accordance with a plan approved by the utility undertaker or in accordance with any requirement of the utility undertaker or under its supervision does not (subject to sub-paragraph (4)), excuse the undertaker from liability under the provisions of sub-paragraph (1).

(3) The utility undertaker must use its reasonable endeavours to mitigate in whole or in part, and in any event to minimise, any costs, expenses, losses, demands, penalties etc. capable of being claimed under sub-paragraph (1). If requested to do so by the undertaker, the utility undertaker must provide an explanation of how the claimed expenses have been minimised. The undertaker is only liable to pay expenses that have been reasonably incurred.

(4) Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the neglect or default of the utility undertaker, its officers, servants, contractors or agents.

(5) The utility undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without first consulting the undertaker and considering its promptly made representations to the extent practicable.