Common use of Compensation Events Clause in Contracts

Compensation Events. (a) Either party hereto may submit a written notice to the other party of any Compensation Event, which notice shall be submitted within 30 days following the date on which the submitting party first became aware (or should have been aware, using all reasonable due diligence) that an event has occurred and that it is or will become a Compensation Event pursuant hereto (a “Compensation Event Notice”). The Compensation Event Notice shall set forth (i) the Compensation Event and its date of occurrence in reasonable detail, and (ii) the amount claimed as the Concessionaire Damages or as Positive Revenue, as applicable, and details of the calculation thereof including a written analysis and calculation of the estimated Net Cost Impact, if any, and estimated Net Revenue Impact. (b) If for any reason the Concessionaire fails to deliver such written Compensation Event Notices within the foregoing time periods, the Concessionaire shall be deemed to have irrevocably and forever waived and released any Claim or right to compensation for any Concessionaire Damages or other adverse effects on Toll Revenues or on costs, expenses and liabilities attributable to such Compensation Event. (c) After a party hereto submits a Compensation Event Notice, the other party shall be entitled to obtain (i) from the Independent Engineer a comprehensive report as to the Concessionaire’s estimate of the Net Cost Impact attributable to the Compensation Event and (ii) from a traffic and revenue consultant a traffic and revenue study, prepared in accordance with Good Industry Practice, analyzing and calculating the estimated Net Revenue Impact or Positive Revenue, as applicable, attributable to the Compensation Event. Within 90 days after receiving a Compensation Event Notice, the party in receipt of such notice shall provide to the party having given such notice a copy of such reports as it has elected to obtain. Within 120 days after the delivery of the Compensation Event Notice, the Concessionaire and Department shall commence good faith negotiations to determine the Concessionaire Damages, Positive Revenue or other compensation, if any, to which a party is entitled, including calculation of the present value of such Concessionaire Damages, Positive Revenue or other compensation pursuant to Section 13.03(a). (d) If the Concessionaire and Department are unable to agree upon the amount of the Concessionaire Damages, Positive Revenue or other compensation, if any, or present value thereof, within 30 days after commencement of negotiations, then either party may request that the matters under dispute be reviewed by the Independent Engineer (and, if the disputed matters involve issues outside the Independent Engineer’s expertise, the Independent Engineer may consult with another independent third party expert having appropriate expertise with respect to the matters in dispute). If, despite the recommendations of the Independent Engineer, the parties are unable to agree upon the matters in dispute within 60 days after commencement of negotiations, either party, by written notice to the other party, may terminate the negotiations and request the dispute be resolved in accordance with Section 17.06. (e) The Concessionaire shall take all steps reasonably necessary to mitigate the amount of the Concessionaire Damages attributable to, and other consequences of, any Compensation Event, including all steps that would generally be taken in accordance with Good Industry Practice.

Compensation Events. (a) Either party hereto may submit a written notice to the other party of any Compensation Event, which notice shall be submitted within 30 days following the date on which the submitting party first became aware (or should have been aware, using all reasonable due diligence) that an event has occurred and that it is or will become a Compensation Event pursuant hereto (a “Compensation Event Notice”). The Compensation Event Notice shall set forth (i) the Compensation Event and its date of occurrence in reasonable detail, and (ii) the amount claimed as the Concessionaire Damages or as Positive Revenue, as applicable, and details of the calculation thereof including a written analysis and calculation of the estimated Net Cost Impact, if any, and estimated Net Revenue Impact. (b) If for any reason the Concessionaire fails to deliver such written Compensation Event Notices within the foregoing time periods, the Concessionaire shall be deemed to have irrevocably and forever waived and released any Claim or right to compensation for any Concessionaire Damages or other adverse effects on Toll Revenues or on costs, expenses and liabilities attributable to such Compensation Event. (c) After a party hereto submits a Compensation Event Notice, the other party shall be entitled to obtain may, but is not required to, obtain, at its sole cost (i) from the Independent Engineer a comprehensive report as to the Concessionaire’s estimate of the Net Cost Impact attributable to the Compensation Event and (ii) from a traffic and revenue consultant a traffic and revenue study, prepared in accordance with Good Industry Practice, analyzing and calculating the estimated Net Revenue Impact or Positive Revenue, as applicable, attributable to the Compensation Event. Within 90 days after receiving a Compensation Event Notice, the party in receipt of such notice shall provide to the party having given such notice a copy of such reports as it has elected to obtain. Within 120 days after the delivery of the Compensation Event Notice, the Concessionaire and Department shall commence good faith negotiations to determine the Concessionaire Damages, Positive Revenue or other compensation, if any, to which a party is entitled, including calculation of the present value of such Concessionaire Damages, Positive Revenue or other compensation pursuant to Section 13.03(a). (d) If the Concessionaire and Department are unable to agree upon the amount of the Concessionaire Damages, Positive Revenue or other compensation, if any, or present value thereof, within 30 days after commencement of negotiations, then either party may request that the matters under dispute be reviewed by the Independent Engineer (and, if the disputed matters involve issues outside the Independent Engineer’s expertise, the Independent Engineer may consult with another independent third party expert having appropriate expertise with respect to the matters in dispute). If, despite the recommendations of the Independent Engineer, the parties are unable to agree upon the matters in dispute within 60 days after commencement of negotiations, either party, by written notice to the other party, may terminate the negotiations and request the dispute be resolved in accordance with Section 17.06. (e) The Concessionaire shall take all steps reasonably necessary to mitigate the amount of the Concessionaire Damages attributable to, and other consequences of, any Compensation Event, including all steps that would generally be taken in accordance with Good Industry Practice.

Compensation Events. (a) Either party hereto may submit If the Concessionaire is affected by a Compensation Event, it shall give written notice to the other party of any Compensation Event, which notice shall be submitted Department within 30 days following the date on which the submitting party Concessionaire first became aware (or should have been aware, using all reasonable due diligence) that an event has occurred and that it is or will become a Compensation Event pursuant hereto (a “Compensation Event Notice”). The Compensation Event Notice shall set forth (i) the Compensation Event and its date of occurrence in reasonable detail, and (ii) the amount claimed as the Concessionaire Damages or as Positive Revenue, as applicableDamages, and (iii) details of the calculation thereof including a written analysis and calculation of the estimated Net Cost Impact, if any, and estimated Net Revenue Impact. (b) If If, for any reason reason, the Concessionaire fails to deliver such written Compensation Event Notices Notice within the foregoing time periodsperiod, the Concessionaire shall be deemed to have irrevocably and forever waived and released any Claim or right to compensation for any Concessionaire Damages or other adverse effects on Toll Gross Revenues or on costs, expenses and liabilities attributable to such Compensation Event. (c) After a party hereto the Concessionaire submits a Compensation Event Notice, the other party Department shall be entitled to obtain (i) from the Independent Engineer a comprehensive report as to the Concessionaire’s estimate of the Net Cost Impact attributable to the Compensation Event and (ii) from a traffic and revenue consultant a traffic and revenue study, prepared in accordance with Good Industry Practice, analyzing and calculating the estimated Net Revenue Impact or Positive Revenue, as applicable, attributable to the Compensation Event. Within 90 days after receiving a Compensation Event Notice, the party in receipt of such notice Department shall provide to the party having given such notice Concessionaire a copy of such reports as it has elected to obtain. Within 120 days after the delivery of the Compensation Event Notice, the Concessionaire and Department shall commence good faith negotiations to determine the Concessionaire Damages. (d) For the purpose of any discounting, Positive Revenue the parties shall use the PVR Discount Rate for calculating the weighted average cost of capital as incorporated into the Base Case Financial Model. In all cases the Concessionaire Damages shall be net of all insurance available to the Concessionaire, or other compensationdeemed to be self-insured by the Concessionaire under Section 18.04, with respect to cost or revenue impacts of the Compensation Event. The Concessionaire shall bear, at its sole cost and expense, the first $50,000 of Concessionaire Damages per occurrence with respect to any Compensation Event occurring in calendar year 2009. For calendar year 2010, such $50,000 deductible shall be adjusted for changes, if any, to which a party is entitledin the CPI between December 1 2008 and December 1, including calculation 2009. On January 1 of each calendar year thereafter, the deductible shall equal the immediately preceding calendar year deductible adjusted for changes, if any, in the CPI between December 1 of the present value of second year preceding such January 1 and December 1 immediately preceding such January 1. (e) The Concessionaire shall conduct all discussions and negotiations to determine any Concessionaire Damages, Positive Revenue or other compensation pursuant to Section 13.03(a)and shall share with the Department all data, documents and information pertaining thereto, on an Open Book Basis. (df) If the Concessionaire and Department are unable to agree upon the amount of the Concessionaire Damages, Positive Revenue or other compensation, if any, or present value thereof, Damages within 30 days after commencement of negotiations, then either party may request that the matters under dispute be reviewed by the Independent Engineer (and, if the disputed matters involve issues outside the Independent Engineer’s expertise, the Independent Engineer may consult with another independent third party expert having appropriate expertise with respect to the matters in dispute). If, despite the recommendations of the Independent Engineer, the parties are unable to agree upon the matters in dispute within 60 days after commencement of negotiations, either party, by written notice to the other party, may terminate the negotiations and request the dispute be resolved in accordance with Section 17.0622.01. (eg) Following a determination of the Concessionaire Damages by mutual agreement or the dispute resolution procedures, the Department shall compensate for such Concessionaire Damages: (i) through quarterly or other periodic payments of the Concessionaire Damages in accordance with a written payment schedule determined by mutual agreement or through the dispute resolution procedures, corresponding to when the Net Cost Impacts and Net Revenue Impacts that make up the Concessionaire Damages are anticipated to occur; (ii) by a lump sum payment, payable as determined by mutual agreement or through the dispute resolution procedures; (iii) by reducing Monthly Gross Revenue in each month in which Net Cost Impact is determined to have occurred or will occur by the amount of the Net Cost Impact determined for such month; (iv) by extension of the Term as provided in Section 4.02(a)(iii) through operation of the Maximum PVR as necessary to recoup Net Revenue Impacts; or (v) in such other manner as agreed upon by the parties in writing. (h) The Department, in its sole discretion, shall be entitled to select one or any combination of the methods of compensation under Section 14.01(g)(i), (ii), (iii) and (iv), subject to the following terms and conditions. (i) Each method shall be subject to the Department’s right, in its sole discretion, to apply any available Contingency Amount to the Concessionaire Damages pursuant to Section 14.02. (ii) Any election by the Department to pay all or a portion of the Concessionaire Damages pursuant to Section 14.01(g)(iii) shall be: (A) subject to determination that the Concessionaire will have the continuing ability to satisfy debt coverage ratios then binding on the Concessionaire under its Financing Assignments if such method is used; (B) subject to the ability of the Concessionaire, using diligent efforts, to raise additional Concessionaire Debt or equity to the extent necessary to currently fund the Net Cost Impacts of the Compensation Event; and (C) available only to the extent that the Maximum PVR is reasonably capable of being achieved within 90% of the Maximum Term, provided that the Department, in its sole discretion, may elect to extend the Maximum Term to satisfy this condition. (iii) Any election by the Department to pay all or a portion of the Concessionaire Damages pursuant to Section 14.01(g)(iv) shall be: (A) subject to determination that the Concessionaire will have the continuing ability to satisfy debt coverage ratios then binding on the Concessionaire under its Financing Assignments if such method is used; and (B) available only to the extent that the Maximum PVR is reasonably capable of being achieved within 90% of the Maximum Term, provided that the Department, in its sole discretion, may elect to extend the Maximum Term to satisfy this condition. (iv) If any portion of the Concessionaire Damages is to pay for prior capital expenditures, the Department shall pay such portion in a lump sum, except to the extent (A) previously funded by the Concessionaire with non-callable Concessionaire Debt, (B) compensated pursuant to Section 14.01(g)(iii), or (C) otherwise approved in writing by the Concessionaire. (v) If any portion of the Concessionaire Damages is to pay for costs of design or construction to be performed, or for other future capital expenditures, not compensated pursuant to Section 14.01(g)(iii), then the Department shall have no obligation to make advance payments and shall have the right to pay such portion of the Concessionaire Damages in quarterly progress payments in arrears and otherwise according to the Department’s standard practices and procedures for paying its contractors and applicable Laws. (vi) If any portion of the Concessionaire Damages is to pay for future non- capital costs or future Net Revenue Impacts not compensated pursuant to Section (vii) If the Department elects to make quarterly or other periodic payments, at any later time it may choose to complete compensation through the alternatives under Sections 14.01(g)(ii), (iii) and (iv), subject to the other terms and conditions of this Section 14.01(h). (viii) If the Department does not make any lump sum or periodic payment of the Concessionaire Damages when due, it shall thereafter bear interest at the Bank Rate until the date the amount due is paid. (i) The Concessionaire shall take all steps reasonably necessary to mitigate the amount of the Concessionaire Damages attributable to, and other consequences of, any Compensation Event, including all steps that would generally be taken in accordance with Good Industry Practice. (j) The Concessionaire shall bear for each Force Majeure event described in Sections 13.02(a) and (b) (A) the amount of its deductible or self-insured retention under its then applicable insurance policy for such event, plus (B) all Net Revenue Impacts attributable to such event, plus (C) all Net Cost Impacts other than the costs to repair and replace damage or destruction to the Project in excess of the insurance deductible or self-insured retention. The foregoing, however, shall not affect the determination of Force Majeure Extensions under Section 13.02(c). If such Force Majeure event is within the scope of any insurance coverage described in Section 18.01(b) but the Concessionaire is excused from insuring such an event pursuant to Section 18.01(b), then the Concessionaire shall be deemed to have self-insured such risk in the amount of the deductible or self-insured retention under the most recent insurance policy the Concessionaire carried for such risk, inflated annually by the increase, if any, in the CPI between January 1 of the last year covered by such insurance policy to the date of the event. In addition, if the Project fails to meet design requirements under the Technical Requirements, which failure contributed to the adverse effects from the Force Majeure event, then the Department shall have no liability for any Concessionaire Damages arising from such Force Majeure event. In addition, if the Force Majeure event is one that results in a declaration by the President of the United States of a disaster area or other emergency situation rendering the Project eligible for FEMA funds (or funds from similar successor federal disaster aid programs), then the Department may, but is not obligated to, provide compensation from such funds consistent with the process set forth in this Section 14.01. If the Department provides compensation from the Contingency Amount and thereafter receives FEMA funds on account of the Force Majeure event, the Department may, in its sole discretion, pay all or any portion of the FEMA funds to the Concessionaire, whereupon the available Contingency Amount shall automatically increase by the amount of such payment. (k) For Compensation Events involving (A) Hazardous Substances, (B) subsurface or latent physical conditions, and (C) archeological or paleontological resources, all as described in the definition of Compensation Events, entitlement to Concessionaire Damages shall be limited as follows: (i) The Department shall reimburse the Concessionaire for Allocable Costs incurred by the Concessionaire directly related to the management, treatment, handling, storage, remediation and removal of Hazardous Substances during the Work Period that are present on the Project Right of Way as of the Agreement Date, except for: (1) Hazardous Substances that were known by the Concessionaire to be present on or before the submission of its Detailed Proposal or should have been known by the Concessionaire to be present by undertaking reasonable investigation prior to submission of the Concessionaire’s Detailed Proposal; (2) Hazardous Substances that are present at the time of acquisition on parcels acquired to accommodate an Alternative Technical Concept approved by the Department as set forth in Exhibit B-4 of the Agreement; (3) Hazardous Substances that are introduced to or brought onto the Project or on property within the Project Right of Way by any Concessionaire Party;

Compensation Events. (a) Either party hereto .1 If, during Phase 2 of this Agreement, ERC experiences a Compensation Event, ERC may submit request an appropriate adjustment to its External Cost and Internal Cost in accordance with this Section 7.2. .2 As a condition precedent to ERC receiving an appropriate adjustment to the amount of External Cost and Internal Cost eligible for payment by VDOT pursuant to Section 7.2.1, ERC shall provide written notice to VDOT as soon as practicable, but in any event within 30 Days after the other party occurrence of any the Compensation Event, which notice shall be submitted within 30 days includes the following the date on which the submitting party first became aware (or should have been aware, using all in reasonable due diligence) that an event has occurred and that it is or will become a Compensation Event pursuant hereto (a “Compensation Event Notice”). The Compensation Event Notice shall set forth detail: (i) the Compensation Event and its date of occurrence in reasonable detail, and occurrence; (ii) the amount claimed as the Concessionaire Damages or as Positive Revenue, as applicable, and details basis of the calculation thereof including a written analysis request for compensation; and calculation (iii) an estimate of the estimated Net impact to the External Cost Impact, if any, and estimated Net Revenue Impact. (b) If Internal Cost as defined in the Work Plan for any reason those Project Deliverables affected by the Concessionaire fails to deliver such written Compensation Event Notices within the foregoing time periods, the Concessionaire shall be deemed to have irrevocably and forever waived and released any Claim or right to compensation for any Concessionaire Damages or other adverse effects on Toll Revenues or on costs, expenses and liabilities attributable to such Compensation Event. (c) After a party hereto submits a “Compensation Event Notice, the other party shall be entitled to obtain (i) from the Independent Engineer a comprehensive report as to the Concessionaire’s estimate ”). .3 Within 30 Days of the Net Cost Impact attributable to the Compensation Event and (ii) from a traffic and revenue consultant a traffic and revenue study, prepared in accordance with Good Industry Practice, analyzing and calculating the estimated Net Revenue Impact or Positive Revenue, as applicable, attributable to the Compensation Event. Within 90 days after receiving a Compensation Event Notice, the party in receipt of such notice shall provide to the party having given such notice a copy of such reports as it has elected to obtain. Within 120 days after the delivery of the Compensation Event Notice, the Concessionaire ERC and Department VDOT shall commence good faith negotiations to determine the Concessionaire Damages, Positive Revenue or other compensation, if any, to which a party is entitled, including calculation amount of the present value adjustment to ERC’s External Cost and Internal Cost. If after 30 Days of such Concessionaire Damages, Positive Revenue or other compensation pursuant to Section 13.03(a). (d) If good faith negotiations the Concessionaire and Department Parties are unable to agree upon the amount of the Concessionaire Damages, Positive Revenue or other compensation, if any, or present value thereof, within 30 days after commencement of negotiations, then either party may request that the matters under dispute be reviewed by the Independent Engineer (and, if the disputed matters involve issues outside the Independent Engineer’s expertise, the Independent Engineer may consult with another independent third party expert having appropriate expertise with respect to the matters in dispute). If, despite the recommendations of the Independent Engineer, the parties are unable to agree upon the matters in dispute within 60 days after commencement of negotiationsadjustment, either party, by written notice to the other party, Party may terminate the such negotiations and request the dispute be resolved in accordance with Section 17.06Article 9. During the course of the dispute resolution process, VDOT shall make interim payments to ERC on a monthly basis for the reasonable, documented External Cost and Internal Cost for Compensation Events, subject to subsequent payment adjustment as may be determined upon resolution of the dispute. (e) The Concessionaire .4 ERC shall take all steps reasonably necessary to mitigate the amount of the Concessionaire Damages impact to its External Cost and Internal Cost attributable to, and other consequences of, to any Compensation Event. .5 If ERC has not provided Compensation Event Notice to VDOT pursuant to Section 7.2.2 above, including all steps that would generally ERC shall be taken deemed to have forever waived its claim for compensation with respect to such Compensation Event. .6 Payments made to ERC in accordance with Good Industry PracticeSection 7.2 shall be in addition to any payments required Section 4.1.2 and shall not be subject to the $10 million limitation set forth in Section 4.1.2.

Compensation Events. (a) Either party hereto may submit If the Concessionaire is affected by a Compensation Event, it shall give written notice to the other party of any Compensation Event, which notice shall be submitted Department within 30 15 days following the date on which the submitting party Concessionaire first became aware (or should have been aware, using all reasonable due diligence) that an event has occurred and that it is or will become a Compensation Event pursuant hereto (a “Compensation Event Notice”). The Compensation Event Notice shall set forth (i) the Compensation Event and its date of occurrence in reasonable detail, and (ii) the amount claimed as the Concessionaire Damages or as Positive Revenue, as applicableDamages, and (iii) details of the calculation thereof including a written analysis and calculation of the estimated Net Cost Impact, if any, and estimated Net Revenue Impact. (b) If If, for any reason reason, the Concessionaire fails to deliver such written Compensation Event Notices Notice within the foregoing time periodsperiod, the Concessionaire shall be deemed to have irrevocably and forever waived and released any Claim or right to compensation for any Concessionaire Damages or other adverse effects on Toll Gross Revenues or on costs, expenses and liabilities attributable to such Compensation Event. (c) After a party hereto the Concessionaire submits a Compensation Event Notice, the other party Department shall be entitled to obtain (i) from the Independent Engineer a comprehensive report as to the Concessionaire’s estimate of the Net Cost Impact attributable to the Compensation Event and (ii) from a traffic and revenue consultant a traffic and revenue study, prepared in accordance with Good Industry Practice, analyzing and calculating the estimated Net Revenue Impact or Positive Revenue, as applicable, attributable to the Compensation Event. Within 90 days after receiving a Compensation Event Notice, the party in receipt of such notice Department shall provide to the party having given such notice Concessionaire a copy of such reports as it has elected to obtain. Within 120 days after the delivery of the Compensation Event Notice, the Concessionaire and Department shall commence good faith negotiations to determine the Concessionaire Damages. (d) For the purpose of any discounting, Positive Revenue the parties shall use the PVR Discount Rate for calculating the weighted average cost of capital as incorporated into the Base Case Financial Model. In all cases the Concessionaire Damages shall be net of all insurance available to the Concessionaire, or other compensationdeemed to be self-insured by the Concessionaire under Section 18.04, with respect to cost or revenue impacts of the Compensation Event. The Concessionaire shall bear, at its sole cost and expense, the first $50,000 of Concessionaire Damages per occurrence with respect to any Compensation Event occurring in calendar year 2009. For calendar year 2010, such $50,000 deductible shall be adjusted for changes, if any, to which a party is entitledin the CPI between December 1 2008 and December 1, including calculation 2009. On January 1 of each calendar year thereafter, the deductible shall equal the immediately preceding calendar year deductible adjusted for changes, if any, in the CPI between December 1 of the present value of second year preceding such January 1 and December 1 immediately preceding such January 1. (e) The Concessionaire shall conduct all discussions and negotiations to determine any Concessionaire Damages, Positive Revenue or other compensation pursuant to Section 13.03(a)and shall share with the Department all data, documents and information pertaining thereto, on an Open Book Basis. (df) If the Concessionaire and Department are unable to agree upon the amount of the Concessionaire Damages, Positive Revenue or other compensation, if any, or present value thereof, Damages within 30 days after commencement of negotiations, then either party may request that the matters under dispute be reviewed by the Independent Engineer (and, if the disputed matters involve issues outside the Independent Engineer’s expertise, the Independent Engineer may consult with another independent third party expert having appropriate expertise with respect to the matters in dispute). If, despite the recommendations of the Independent Engineer, the parties are unable to agree upon the matters in dispute within 60 days after commencement of negotiations, either party, by written notice to the other party, may terminate the negotiations and request the dispute be resolved in accordance with Section 17.0622.01. (eg) Following a determination of the Concessionaire Damages by mutual agreement or the dispute resolution procedures, the Department shall compensate for such Concessionaire Damages: (i) through quarterly or other periodic payments of the Concessionaire Damages in accordance with a written payment schedule determined by mutual agreement or through the dispute resolution procedures, corresponding to when the Net Cost Impacts and Net Revenue Impacts that make up the Concessionaire Damages are anticipated to occur; (ii) by a lump sum payment, payable as determined by mutual agreement or through the dispute resolution procedures; (iii) by reducing Monthly Gross Revenue in each month in which Net Cost Impact is determined to have occurred or will occur by the amount of the Net Cost Impact determined for such month; (iv) by extension of the Term as provided in Section 4.02(a)(iii) through operation of the Maximum PVR as necessary to recoup Net Revenue Impacts; or (v) in such other manner as agreed upon by the parties in writing. (h) The Department, in its sole discretion, shall be entitled to select one or any combination of the methods of compensation under Section 14.01(g)(i), (ii), (iii) and (iv), subject to the following terms and conditions. (i) Each method shall be subject to the Department’s right, in its sole discretion, to apply any available Contingency Amount to the Concessionaire Damages pursuant to Section 14.02. (ii) Any election by the Department to pay all or a portion of the Concessionaire Damages pursuant to Section 14.01(g)(iii) shall be: (A) subject to determination that the Concessionaire will have the continuing ability to satisfy debt coverage ratios then binding on the Concessionaire under its Financing Assignments if such method is used; (B) subject to the ability of the Concessionaire, using diligent efforts, to raise additional Concessionaire Debt or equity to the extent necessary to currently fund the Net Cost Impacts of the Compensation Event; and (C) available only to the extent that the Maximum PVR is reasonably capable of being achieved within 90% of the Maximum Term, provided that the Department, in its sole discretion, may elect to extend the Maximum Term to satisfy this condition. (iii) Any election by the Department to pay all or a portion of the Concessionaire Damages pursuant to Section 14.01(g)(iv) shall be: (A) subject to determination that the Concessionaire will have the continuing ability to satisfy debt coverage ratios then binding on the Concessionaire under its Financing Assignments if such method is used; and (B) available only to the extent that the Maximum PVR is reasonably capable of being achieved within 90% of the Maximum Term, provided that the Department, in its sole discretion, may elect to extend the Maximum Term to satisfy this condition. (iv) If any portion of the Concessionaire Damages is to pay for prior capital expenditures, the Department shall pay such portion in a lump sum, except to the extent (A) previously funded by the Concessionaire with non-callable Concessionaire Debt, (B) compensated pursuant to Section 14.01(g)(iii), or (C) otherwise approved in writing by the Concessionaire. (v) If any portion of the Concessionaire Damages is to pay for costs of design or construction to be performed, or for other future capital expenditures, not compensated pursuant to Section 14.01(g)(iii), then the Department shall have no obligation to make advance payments and shall have the right to pay such portion of the Concessionaire Damages in quarterly progress payments in arrears and otherwise according to the Department’s standard practices and procedures for paying its contractors and applicable Laws. (vi) If any portion of the Concessionaire Damages is to pay for future non-capital costs or future Net Revenue Impacts not compensated pursuant to Section 14.01(g)(iii) or (iv), any periodic payments the Department chooses shall in no event be made less often than quarterly. (vii) If the Department elects to make quarterly or other periodic payments, at any later time it may choose to complete compensation through the alternatives under Sections 14.01(g)(ii), (iii) and (iv), subject to the other terms and conditions of this Section 14.01(h). (viii) If the Department does not make any lump sum or periodic payment of the Concessionaire Damages when due, it shall thereafter bear interest at the Bank Rate until the date the amount due is paid. (i) The Concessionaire shall take all steps reasonably necessary to mitigate the amount of the Concessionaire Damages attributable to, and other consequences of, any Compensation Event, including all steps that would generally be taken in accordance with Good Industry Practice. (j) The Concessionaire shall bear for each Force Majeure event described in Sections 13.02(a) and (b) (A) the amount of its deductible or self-insured retention under its then applicable insurance policy for such event, plus (B) all Net Revenue Impacts attributable to such event, plus (C) all Net Cost Impacts other than the costs to repair and replace damage or destruction to the Project in excess of the insurance deductible or self-insured retention. The foregoing, however, shall not affect the determination of Force Majeure Extensions under Section 13.02(c). If such Force Majeure event is within the scope of any insurance coverage described in Section 18.01(b) but the Concessionaire is excused from insuring such an event pursuant to Section 18.01(b), then the Concessionaire shall be deemed to have self-insured such risk in the amount of the deductible or self-insured retention under the most recent insurance policy the Concessionaire carried for such risk, inflated annually by the increase, if any, in the CPI between January 1 of the last year covered by such insurance policy to the date of the event. In addition, if the Project fails to meet design requirements under the Technical Requirements, which failure contributed to the adverse effects from the Force Majeure event, then the Department shall have no liability for any Concessionaire Damages arising from such Force Majeure event. In addition, if the Force Majeure event is one that results in a declaration by the President of the United States of a disaster area or other emergency situation rendering the Project eligible for FEMA funds (or funds from similar successor federal disaster aid programs), then the Department may, but is not obligated to, provide compensation from such funds consistent with the process set forth in this Section 14.01. If the Department provides compensation from the Contingency Amount and thereafter receives FEMA funds on account of the Force Majeure event, the Department may, in its sole discretion, pay all or any portion of the FEMA funds to the Concessionaire, whereupon the available Contingency Amount shall automatically increase by the amount of such payment. (k) For Compensation Events involving (A) Hazardous Substances, (B) subsurface or latent physical conditions, and (C) archeological or paleontological resources, all as described in the definition of Compensation Events, entitlement to Concessionaire Damages shall be limited as follows: (i) The Department shall reimburse the Concessionaire for Allocable Costs incurred by the Concessionaire directly related to the management, treatment, handling, storage, remediation and removal of Hazardous Substances during the Work Period that are present on the Project Right of Way as of the Agreement Date, except for: (1) Hazardous Substances that were known by the Concessionaire to be present on or before the submission of its Detailed Proposal or should have been known by the Concessionaire to be present by undertaking reasonable investigation prior to submission of the Concessionaire’s Detailed Proposal; (2) Hazardous Substances that are present at the time of acquisition on parcels acquired to accommodate an Alternative Technical Concept approved by the Department as set forth in Exhibit B-4 of the Agreement; (3) Hazardous Substances that are introduced to or brought onto the Project or on property within the Project Right of Way by any Concessionaire Party;