Designated Change in Law. If a Designated Change in Law occurs during the Term, then notwithstanding any other provision of this Agreement other than in this Section 12.1: (a) to the extent that and for so long as the Generator is prevented by such Designated Change in Law from performing any of its obligations under this Agreement, it is relieved from any liability or consequence hereunder arising from its inability to perform or delay in performing that obligation; provided that Generator undertakes its mitigation obligations in respect of such Designated Change in Law pursuant to Section 12.1(c); (b) if such Designated Change in Law wholly or substantially prevents Generator from commencing or continuing performance of any Critical Path Item in respect of the Project when required for an uninterrupted period of at least ten (10) days, then each of the Commencement of Construction Longstop Date, Target COD, and the COD Longstop Date shall, provided that such Designated Change in Law occurred prior to such date, be extended by the number of days that such Designated Change in Law is reasonably determined to have wholly or substantially prevented Generator from proceeding with such Critical Path Item; (c) Generator shall use all reasonable efforts and take all reasonable steps to mitigate the effect and consequences of any Designated Change in Law which prevents its performance to the fullest extent, and as soon as is reasonably possible, all in consultation with the AESO pursuant to Section 12.2 below; (d) if such Designated Change in Law results in a net change in the costs Generator would reasonably be expected to incur in respect of the development, construction or operation of the Facility during the Term or in a Change in Law Constraint, then notwithstanding any other provision hereunder: (i) Generator shall use all reasonable efforts and take all reasonable steps to: (A) in the case of a Designated Change in Law which affects Generator's costs, minimize any increase or maximize any decrease, as the case may be, to the fullest reasonable extent, in such costs; and (B) in the case of a Designated Change in Law which results in a Change in Law Constraint, minimize the effects of such Change in Law Constraint; all in consultation with the AESO pursuant to Section 12.2; (ii) provided the applicable threshold (if any) in paragraph (iii) below or Section 7.4(a) is satisfied, payments under this Agreement shall be made or adjusted as necessary to keep the Generator in the same financial position in respect of this Agreement, after giving effect to such Designated Change in Law, as it would have been in had such Designated Change in Law not occurred, and such payments shall be determined, calculated and payable in accordance with paragraph (iii) below and Section 12.2; (iii) in the case of: (A) a Designated Change in Law which results in a net increase in Generator's reasonable capital costs which is determined to be at least fifty thousand dollars ($50,000), the AESO shall, without duplication, pay the Generator the amount of such reasonable costs as a lump sum payment; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such increased costs are not otherwise adjusted or provided for hereunder; (3) recovery of such increased costs is not specifically disallowed hereunder; (4) such increased costs shall exclude any claim by Generator for loss of profits, economic loss, or indirect or consequential losses; and (5) Generator provides appropriate documentation to the AESO establishing the amount of such increased costs; (B) a Designated Change in Law which results in a net increase in Generator's reasonable operating costs which is determined to be at least fifty thousand dollars ($50,000), the AESO shall, without duplication, increase the Strike Price to reasonably account for such increased costs; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such increased costs are not otherwise adjusted or provided for hereunder; (3) recovery of such increased costs is not specifically disallowed hereunder; (4) such increased costs shall exclude any claim by Generator for loss of profits, economic loss, or indirect or consequential losses; and (5) Generator provides appropriate documentation to the AESO establishing the amount of such increased costs; (C) a Designated Change in Law which results in a net decrease in Generator's costs, the AESO shall, without duplication, reduce the Strike Price to reasonably account for any decreased costs, which adjustments shall be calculated on the basis that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such decreased costs are not otherwise adjusted or provided for hereunder; and (3) Generator provides appropriate documentation to the AESO establishing the amount of such decreased costs; and (D) a Designated Change in Law which results in a Change in Law Constraint, the AESO shall, on a monthly basis and in accordance with and subject to the provisions of Section 7.4, pay the Generator for the Forgone CIL Energy that the Generator establishes, to the reasonable satisfaction of the AESO, resulted from such Change in Law Constraint; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such Forgone CIL Energy is not otherwise provided for or accounted for hereunder; (3) recovery in respect of such Forgone CIL Energy is not specifically disallowed hereunder; and (4) Generator provides appropriate documentation to the AESO establishing the Change in Law Constraint Limit; and provided further that if the effects of such Change in Law Constraint can be mitigated, remedied or reduced by a capital improvement to the Facility, the AESO shall have the option (but not the obligation) to provide written notice to the Generator requiring it to make such capital improvement to the Facility, in which case, the reasonable costs of such capital improvement shall be for the account of AESO.
Appears in 2 contracts
Samples: Renewable Electricity Support Agreement, Renewable Electricity Support Agreement
Designated Change in Law. If a Designated Change in Law occurs during the Term, then notwithstanding any other provision of this Agreement other than in this Section 12.1:
(a) to the extent that and for so long as the Generator is prevented by such Designated Change in Law from performing any of its obligations under this Agreement, it is relieved from any liability or consequence hereunder arising from its inability to perform or delay in performing that obligation; provided that Generator undertakes its mitigation obligations in respect of such Designated Change in Law pursuant to Section 12.1(c);
(b) if such Designated Change in Law wholly or substantially prevents Generator from commencing or continuing performance of any Critical Path Item in respect of the Project when required for an uninterrupted period of at least ten (10) days, then each of the Commencement of Construction Longstop Date, Target COD, and the COD Longstop Date shall, provided that such Designated Change in Law occurred prior to such date, be extended by the number of days that such Designated Change in Law is reasonably determined to have wholly or substantially prevented Generator from proceeding with such Critical Path Item;
(c) Generator shall use all reasonable efforts and take all reasonable steps to mitigate the effect and consequences of any Designated Change in Law which prevents its performance to the fullest extent, and as soon as is reasonably possible, all in consultation with the AESO pursuant to Section 12.2 below;
(d) if such Designated Change in Law results in a net change in the costs Generator would reasonably be expected to incur in respect of the development, construction or operation of the Facility during the Term or in a Change in Law Constraint, then notwithstanding any other provision hereunder:
(i) Generator shall use all reasonable efforts and take all reasonable steps to:
(A) in the case of a Designated Change in Law which affects Generator's costs, minimize any increase or maximize any decrease, as the case may be, to the fullest reasonable extent, in such costs; and
(B) in the case of a Designated Change in Law which results in a Change in Law Constraint, minimize the effects of such Change in Law Constraint; all in consultation with the AESO pursuant to Section 12.2;
(ii) provided the applicable threshold (if any) in paragraph (iii) below or Section 7.4(a) is satisfied, payments under this Agreement shall be made or adjusted as necessary to keep the Generator in the same financial position in respect of this Agreement, after giving effect to such Designated Change in Law, as it would have been in had such Designated Change in Law not occurred, and such payments shall be determined, calculated and payable in accordance with paragraph (iii) below and Section 12.2;
(iii) in the case of:
(A) a Designated Change in Law which results in a net increase in Generator's reasonable capital costs which is determined to be at least fifty thousand dollars ($50,000), the AESO shall, without duplication, pay the Generator the amount of such reasonable costs as a lump sum payment; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such increased costs are not otherwise adjusted or provided for hereunder; (3) recovery of such increased costs is not specifically disallowed hereunder; (4) such increased costs shall exclude any claim by Generator for loss of profits, economic loss, or indirect or consequential losses; and (5) Generator provides appropriate documentation to the AESO establishing the amount of such increased costs;
(B) a Designated Change in Law which results in a net increase in Generator's reasonable operating costs which is determined to be at least fifty thousand dollars ($50,000), the AESO shall, without duplication, increase the Strike Price to reasonably account for such increased costs; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such increased costs are not otherwise adjusted or provided for hereunder; (3) recovery of such increased costs is not specifically disallowed hereunder; (4) such increased costs shall exclude any claim by Generator for loss of profits, economic loss, or indirect or consequential losses; and (5) Generator provides appropriate documentation to the AESO establishing the amount of such increased costs;
(C) a Designated Change in Law which results in a net decrease in Generator's costs, the AESO shall, without duplication, reduce the Strike Price to reasonably account for any decreased costs, which adjustments shall be calculated on the basis that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such decreased costs are not otherwise adjusted or provided for hereunder; and (3) Generator provides appropriate documentation to the AESO establishing the amount of such decreased costs; and
(D) a Designated Change in Law which results in a Change in Law Constraint, the AESO shall, on a monthly basis and in accordance with and subject to the provisions of Section 7.4, pay the Generator for the Forgone CIL Energy that the Generator establishes, to the reasonable satisfaction of the AESO, resulted from such Change in Law Constraint; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such Forgone CIL Energy is not otherwise provided for or accounted for hereunder; (3) recovery in respect of such Forgone CIL Energy is not specifically disallowed hereunder; and (4) Generator provides appropriate documentation to the AESO establishing the Change in Law Constraint Limit; and provided further that if the effects of such Change in Law Constraint can be mitigated, remedied or reduced by a capital improvement to the Facility, the AESO shall have the option (but not the obligation) to provide written notice to the Generator requiring it to make such capital improvement to the Facility, in which case, the reasonable costs of such capital improvement shall be for the account of AESO.
Appears in 2 contracts
Samples: Renewable Electricity Support Agreement, Renewable Electricity Support Agreement
Designated Change in Law. If (a) Following any and all changes in Applicable Law, Design-Builder shall perform the Project Work in accordance with the terms of this Agreement, including in compliance with Applicable Law.
(b) On the occurrence of a Designated Change in Law, either Party shall be entitled to seek compensation for any increase or decrease (as the case may be) in the net cost to Design-Builder of performing the Project Work so as to put such Party in no better and no worse position than it would have been in had the Designated Change in Law not occurred. Any such compensation shall be calculated in accordance with this Section 10.5 [Designated Change in Law].
(c) On the occurrence of a Designated Change in Law:
(i) either Party may give notice to the other of the need for a Change as a result of such Designated Change in Law, including details on how the Designated Change in Law has or will increase or decrease (as the case may be) the net cost to Design-Builder of performing the Project Work;
(ii) the Parties shall meet within 20 Business Days of such notice to consult with respect to the effect of the Designated Change in Law and to reach an agreement on whether a Change is required as a result of such Designated Change in Law, and, if the Parties have not, within 10 Business Days of this meeting, reached an agreement, either Party may refer the question of whether a Designated Change in Law occurs during has occurred or the Termeffect of any Designated Change in Law for resolution in accordance with Schedule 20 [Dispute Resolution Procedure]; and
(iii) the City shall, then notwithstanding within 10 Business Days of agreement or determination that a Change is required, issue a Change Enquiry and the relevant provisions of Schedule 13 [Changes] shall apply except that:
(A) Design-Builder may only object to any other provision such Change Enquiry on the grounds that the implementation of the Change would not enable it to comply with the Designated Change in Law or as provided in Section 1.6 of Schedule 13 [Changes];
(B) Design-Builder shall be responsible for obtaining all Project Approvals required in respect of the Change;
(C) the City shall not be entitled to withdraw any such Change Enquiry unless the Parties otherwise agree;
(D) Design-Builder shall proceed to implement the Change within such period as will enable it to comply with the Designated Change in Law as soon as reasonably practicable;
(E) the Parties shall, without prejudice to their respective general obligations to comply with the terms of this Agreement:
(I) use commercially reasonable efforts to mitigate the adverse effects of any Designated Change in Law and take commercially reasonable steps to minimize any increase in costs arising from such Designated Change in Law; and
(II) use commercially reasonable efforts to take advantage of any positive or beneficial effects of any Designated Change in Law and take commercially reasonable steps to maximize any reduction in costs arising from such Designated Change in Law; and
(F) any entitlement to compensation payable shall be in accordance with this Section 10.5, and any calculation of compensation shall take into consideration, inter alia:
(I) any failure by a Party to comply with Section 10.5(c)(iii)(E);
(II) any Avoidable Costs;
(III) any increase or decrease in its costs resulting from such Designated Change in Law; and
(IV) any Insurance Proceeds and insurance proceeds which Design- Builder would have received in connection with the Designated Change in Law if it had complied with the requirements of this Agreement or any policy of insurance maintained or required to be maintained under this Agreement, which amounts, for greater certainty, shall not include any excess or deductibles or any amount over the maximum amount insured under any such insurance policy.
(d) Design-Builder shall not be entitled to any payment or compensation or relief in respect of any Designated Change in Law, or the consequences thereof, other than in accordance with this Section 12.1:10.5 [Designated Change in Law].
(ae) In relation to a Designated Change in Law that results in a net increase or decrease in costs incurred by Design-Builder in delivery of the extent that and for so long as Project Work, taking into consideration, inter alia, Section 10.5(c)(iii)(E), if the Generator is prevented by cost impact of such Designated Change in Law from performing in a given calendar year (in aggregate with all other such Designated Changes in Law that have a cost impact in the same year) amounts to less than (index linked) in that calendar year, neither the City nor Design-Builder shall be entitled to any payment or compensation pursuant to this Section 10.5 [Designated Change in Law] in respect of its obligations under this Agreementthe cost impact of that Designated Change in Law in that calendar year, it is relieved from or any liability or consequence hereunder arising from its inability to perform or delay in performing that obligation; provided that Generator undertakes its mitigation obligations other relief in respect of such Designated Change in Law pursuant to Section 12.1(c);
(b) if such Designated in that calendar year except Construction Schedule amendments that are required in connection with any Change in Law wholly or substantially prevents Generator arising from commencing or continuing performance of any Critical Path Item in respect of the Project when required for an uninterrupted period of at least ten (10) days, then each of the Commencement of Construction Longstop Date, Target COD, and the COD Longstop Date shall, provided that such Designated Change in Law occurred prior to such date, be extended by the number of days that such Designated Change in Law is reasonably determined to have wholly or substantially prevented Generator from proceeding with such Critical Path Item;
(c) Generator shall use all reasonable efforts and take all reasonable steps to mitigate the effect and consequences of any Designated Change in Law which prevents its performance to the fullest extent, and as soon as is reasonably possible, all in consultation with the AESO pursuant to Section 12.2 below;
(d) if such Designated Change in Law results in a net change in the costs Generator would reasonably be expected to incur in respect of the development, construction or operation of the Facility during the Term or in a Change in Law Constraint, then notwithstanding any other provision hereunder:
(i) Generator shall use all reasonable efforts and take all reasonable steps to:
(A) in the case of a Designated Change in Law which affects Generator's costs, minimize any increase or maximize any decrease, as the case may be, to the fullest reasonable extent, in such costs; and
(B) in the case of a Designated Change in Law which results in a Change in Law Constraint, minimize the effects of such Change in Law Constraint; all in consultation with the AESO pursuant to contemplated by Section 12.2;
(ii) provided the applicable threshold (if any) in paragraph (iii) below or Section 7.4(a) is satisfied, payments under this Agreement shall be made or adjusted as necessary to keep the Generator in the same financial position in respect of this Agreement, after giving effect to such Designated Change in Law, as it would have been in had such Designated Change in Law not occurred, and such payments shall be determined, calculated and payable in accordance with paragraph (iii) below and Section 12.2;
(iii) in the case of:
(A) a Designated Change in Law which results in a net increase in Generator's reasonable capital costs which is determined to be at least fifty thousand dollars ($50,000), the AESO shall, without duplication, pay the Generator the amount of such reasonable costs as a lump sum payment; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c10.5(c) and 12.1(d)(i); (2) such increased costs are not otherwise adjusted or provided for hereunder; (3) recovery of such increased costs is not specifically disallowed hereunder; (4) such increased costs shall exclude any claim by Generator for loss of profits, economic loss, or indirect or consequential losses; and (5) Generator provides appropriate documentation to the AESO establishing the amount of such increased costs;
(B) a Designated Change in Law which results in a net increase in Generator's reasonable operating costs which is determined to be at least fifty thousand dollars ($50,000), the AESO shall, without duplication, increase the Strike Price to reasonably account for such increased costs; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such increased costs are not otherwise adjusted or provided for hereunder; (3) recovery of such increased costs is not specifically disallowed hereunder; (4) such increased costs shall exclude any claim by Generator for loss of profits, economic loss, or indirect or consequential losses; and (5) Generator provides appropriate documentation to the AESO establishing the amount of such increased costs;
(C) a Designated Change in Law which results in a net decrease in Generator's costs, the AESO shall, without duplication, reduce the Strike Price to reasonably account for any decreased costs, which adjustments shall be calculated on the basis that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such decreased costs are not otherwise adjusted or provided for hereunder; and (3) Generator provides appropriate documentation to the AESO establishing the amount of such decreased costs; and
(D) a Designated Change in Law which results in a Change in Law Constraint, the AESO shall, on a monthly basis and in accordance with and subject to the relevant provisions of Section 7.4, pay the Generator for the Forgone CIL Energy that the Generator establishes, to the reasonable satisfaction of the AESO, resulted from such Change in Law Constraint; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such Forgone CIL Energy is not otherwise provided for or accounted for hereunder; (3) recovery in respect of such Forgone CIL Energy is not specifically disallowed hereunder; and (4) Generator provides appropriate documentation to the AESO establishing the Change in Law Constraint Limit; and provided further that if the effects of such Change in Law Constraint can be mitigated, remedied or reduced by a capital improvement to the Facility, the AESO shall have the option (but not the obligation) to provide written notice to the Generator requiring it to make such capital improvement to the Facility, in which case, the reasonable costs of such capital improvement shall be for the account of AESOSchedule 13 [Changes].
Appears in 1 contract
Samples: Design Build Agreement
Designated Change in Law. If a Designated Change in Law occurs during the Term, then notwithstanding any other provision of this Agreement other than in this Section 12.1:
(a) to the extent that and for so long as the Generator is prevented by such Designated Change in Law from performing any of its obligations under this Agreement, it is relieved from any liability or consequence hereunder arising from its inability to perform or delay in performing that obligation; provided that Generator undertakes its mitigation obligations in respect of such Designated Change in Law pursuant to Section 12.1(c);
(b) if such Designated Change in Law wholly or substantially prevents Generator from commencing or continuing performance of any Critical Path Item in respect of the Project when required for an uninterrupted period of at least ten (10) days, then each of the Commencement of Construction Longstop Date, Target COD, and the COD Longstop Date shall, provided that such Designated Change in Law occurred prior to such date, be extended by the number of days that such Designated Change in Law is reasonably determined to have wholly or substantially prevented Generator from proceeding with such Critical Path Item;
(c) Generator shall use all reasonable efforts and take all reasonable steps to mitigate the effect and consequences of any Designated Change in Law which prevents its performance to the fullest extent, and as soon as is reasonably possible, all in consultation with the AESO pursuant to Section 12.2 below;
(d) if such Designated Change in Law results in a net change in the costs Generator would reasonably be expected to incur in respect of the development, construction or operation of the Facility during the Term or in a Change in Law Constraint, then notwithstanding any other provision hereunder:
(i) Generator shall use all reasonable efforts and take all reasonable steps to:
(A) in the case of a Designated Change in Law which affects Generator's costs, minimize any increase or maximize any decrease, as the case may be, to the fullest reasonable extent, in such costs; and
(B) in the case of a Designated Change in Law which results result in a Change in Law Constraint, minimize the effects of such Change in Law Constraint; all in consultation with the AESO pursuant to Section 12.2;
(ii) provided the applicable threshold (if any) in paragraph (iii) below or Section 7.4(a) is satisfied, payments under this Agreement shall be made or adjusted as necessary to keep the Generator in the same financial position in respect of this Agreement, after giving effect to such Designated Change in Law, as it would have been in had such Designated Change in Law not occurred, and such payments shall be determined, calculated and payable in accordance with paragraph (iii) below and Section 12.2;
(iii) in the case of:
(A) a Designated Change in Law which results in a net increase in Generator's reasonable capital costs which is determined to be at least fifty thousand dollars ($50,000), the AESO shall, without duplication, pay the Generator the amount of such reasonable costs as a lump sum payment; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such increased costs are not otherwise adjusted or provided for hereunder; (3) recovery of such increased costs is not specifically disallowed hereunder; (4) such increased costs shall exclude any claim by Generator for loss of profits, economic loss, or indirect or consequential losses; and (5) Generator provides appropriate documentation to the AESO establishing the amount of such increased costs;
(B) a Designated Change in Law which results in a net increase in Generator's reasonable operating costs which is determined to be at least fifty thousand dollars ($50,000), the AESO shall, without duplication, increase the Strike Price to reasonably account for such increased costs; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such increased costs are not otherwise adjusted or provided for hereunder; (3) recovery of such increased costs is not specifically disallowed hereunder; (4) such increased costs shall exclude any claim by Generator for loss of profits, economic loss, or indirect or consequential losses; and (5) Generator provides appropriate documentation to the AESO establishing the amount of such increased costs;
(C) a Designated Change in Law which results in a net decrease in Generator's costs, the AESO shall, without duplication, reduce the Strike Price to reasonably on account for of any decreased costs, which adjustments shall be calculated on the basis that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such decreased costs are not otherwise adjusted or provided for hereunder; and (3) Generator provides appropriate documentation to the AESO establishing the amount of such decreased costs; and
(D) a Designated Change in Law which results in a Change in Law Constraint, the AESO shall, on a monthly basis and in accordance with and subject to the provisions of Section 7.4, pay the Generator for the Forgone CIL Energy that the Generator establishes, to the reasonable satisfaction of the AESO, resulted from such Change in Law Constraint; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such Forgone CIL Energy is not otherwise provided for or accounted for hereunder; (3) recovery in respect of such Forgone CIL Energy is not specifically disallowed hereunder; and (4) Generator provides appropriate documentation to the AESO establishing the Change in Law Constraint Limit; and provided further that if the effects of such Change in Law Constraint can be mitigated, remedied or reduced by a capital improvement to the Facility, the AESO shall have the option (but not the obligation) to provide written notice to the Generator requiring it to make such capital improvement to the Facility, in which case, the reasonable costs of such capital improvement shall be for the account of AESO.
Appears in 1 contract
Designated Change in Law. If (a) Following any and all Changes in Law, Project Co shall perform the Project Work in accordance with the terms of this Agreement, including in compliance with Applicable Law.
(b) On the occurrence of a Designated Change in Law, either Party shall be entitled to seek compensation for any increase or decrease (as the case may be) in the net cost to Project Co of performing the Project Work so as to put such Party in no better and no worse position than it would have been in had the Designated Change in Law not occurred. Any such compensation shall be calculated in accordance with this Section 11.5 [Designated Change in Law].
(c) On the occurrence of a Designated Change in Law:
(i) either Party may give notice to the other of the need for a Change as a result of such Designated Change in Law;
(ii) the Parties shall meet within 10 Business Days of such notice to consult with respect to the effect of the Designated Change in Law and to reach an agreement on whether a Change is required as a result of such Designated Change in Law, and, if the Parties have not, within 10 Business Days of this meeting, reached an agreement, either Party may refer the question of whether a Designated Change in Law occurs during has occurred or the Termeffect of any Designated Change in Law for resolution in accordance with Schedule 20 [Dispute Resolution Procedure]; and
(iii) the City shall, then notwithstanding within 10 Business Days of agreement or determination that a Change is required, issue a Change Enquiry and the relevant provisions of Schedule 13 [Changes] shall apply except that:
(A) Project Co may only object to any other provision such Change Enquiry on the grounds that the implementation of the Change would not enable it to comply with the Designated Change in Law or as provided in Section 1.6 of Schedule 13 [Changes];
(B) Project Co shall be responsible for obtaining all Project Approvals required in respect of the Change;
(C) the City shall not be entitled to withdraw any such Change Enquiry unless the Parties otherwise agree;
(D) Project Co shall proceed to implement the Change within such period as will enable it to comply with the Designated Change in Law as soon as reasonably practicable;
(E) the Parties shall, without prejudice to their respective general obligations to comply with the terms of this Agreement:
(I) use commercially reasonable efforts to mitigate the adverse effects of any Designated Change in Law and take commercially reasonable steps to minimize any increase in costs arising from such Designated Change in Law; and
(II) use commercially reasonable efforts to take advantage of any positive or beneficial effects of any Designated Change in Law and take commercially reasonable steps to maximize any reduction in costs arising from such Designated Change in Law; and
(F) any entitlement to compensation payable shall be in accordance with this Section 11.5, and any calculation of compensation shall take into consideration, inter alia:
(I) any failure by a Party to comply with Section 11.5(c)(iii)(E);
(II) any Avoidable Costs;
(III) any increase or decrease in its costs resulting from such Designated Change in Law; and
(IV) any Insurance Proceeds and insurance proceeds which Project Co would have received in connection with the Designated Change in Law if it had complied with the requirements of this Agreement or any policy of insurance maintained or required to be maintained under this Agreement, which amounts, for greater certainty, shall not include any excess or deductibles or any amount over the maximum amount insured under any such insurance policy.
(d) Project Co shall not be entitled to any payment or compensation or relief in respect of any Designated Change in Law, or the consequences thereof, other than in accordance with this Section 12.1:11.5 [Designated Change in Law].
(ae) In relation to a Designated Change in Law that results in a net increase or decrease in costs incurred by Project Co in delivery of the extent that and for so long as Project Work, taking into consideration, inter alia, Section 11.5(c)(iii)(E), if the Generator is prevented by cost impact of such Designated Change in Law from performing in a given calendar year (in aggregate with all other such Designated Changes in Law that have a cost impact in the same year) amounts to less than $10,000 (index linked) in that calendar year, neither the City nor Project Co shall be entitled to any payment or compensation pursuant to this Section 11.5 [Designated Change in Law] or otherwise in respect of its obligations under the cost impact of that Designated Change in Law in that calendar year, or, except as provided otherwise in this Agreement, it is relieved from any liability or consequence hereunder arising from its inability to perform or delay in performing that obligation; provided that Generator undertakes its mitigation obligations other relief in respect of such Designated Change in Law pursuant to Section 12.1(c);
(b) if such in that calendar year. The foregoing shall not preclude any Construction Schedule amendments that are required in connection with any Change arising from a Designated Change in Law wholly or substantially prevents Generator from commencing or continuing performance of any Critical Path Item in respect of the Project when required for an uninterrupted period of at least ten (10as contemplated by Section 11.5(c) days, then each of the Commencement of Construction Longstop Date, Target COD, and the COD Longstop Date shallrelevant provisions of Schedule 13 [Changes], provided notwithstanding that such Designated Change in Law occurred prior to such date, be extended by may not exceed the number of days that such Designated Change cost impact threshold set out in Law is reasonably determined to have wholly or substantially prevented Generator from proceeding with such Critical Path Item;this Section 11.5(e).
(cf) Generator shall use all reasonable efforts and take all reasonable steps Where this Agreement requires Project Co to mitigate the effect and consequences of any Designated Change in Law which prevents its performance to the fullest extent, and as soon as is reasonably possible, all in consultation comply with the AESO pursuant to Section 12.2 below;
(d) if such Designated Change in Law results in a net change in the costs Generator would reasonably be expected to incur technical standard in respect of the developmentProject Work, construction and that standard has changed between the Financial Submission Date and the date that such compliance is required, then Project Co or operation the City shall give notice to the other Party of such change. If, after such notice, the City requires compliance with the changed standard (rather than the standard applicable as of the Facility during Financial Submission Date), then, to the Term or extent such change affects the Project Work and would not have otherwise been taken into account by compliance with Good Industry Practice, such changed standard shall, subject to and in accordance with Schedule 13 [Changes], result in a Change in Law ConstraintChange. If the City does not require compliance with the changed standard, then notwithstanding any other provision hereunder:
(iProject Co shall continue to comply with the standard applicable as of the Financial Submission Date, without a Change therefor. This Section 11.5(f) Generator shall use all reasonable efforts and take all reasonable steps to:
(A) not apply where a change in the case of a technical standard is also a Designated Change in Law which affects Generator's costs, minimize any increase or maximize any decrease, as the case may be, to the fullest reasonable extent, in such costs; and
(B) in the case of a Designated Change in Law which results in a Change in Law Constraint, minimize the effects of such Change in Law Constraint; all in consultation with the AESO pursuant to Section 12.2;
(ii) provided the applicable threshold (if any) in paragraph (iii) below or Section 7.4(a) is satisfied, payments under this Agreement shall be made or adjusted as necessary to keep the Generator in the same financial position in respect of this Agreement, after giving effect to such Designated Change in Law, as it would have been in had such Designated Change in Law not occurred, and such payments shall be determined, calculated and payable in accordance with paragraph (iii) below and Section 12.2;
(iii) in the case of:
(A) a Designated Change in Law which results in a net increase in Generator's reasonable capital costs which is determined to be at least fifty thousand dollars ($50,000), the AESO shall, without duplication, pay the Generator the amount of such reasonable costs as a lump sum payment; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such increased costs are not otherwise adjusted or provided for hereunder; (3) recovery of such increased costs is not specifically disallowed hereunder; (4) such increased costs shall exclude any claim by Generator for loss of profits, economic loss, or indirect or consequential losses; and (5) Generator provides appropriate documentation to the AESO establishing the amount of such increased costs;
(B) a Designated Change in Law which results in a net increase in Generator's reasonable operating costs which is determined to be at least fifty thousand dollars ($50,000), the AESO shall, without duplication, increase the Strike Price to reasonably account for such increased costs; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such increased costs are not otherwise adjusted or provided for hereunder; (3) recovery of such increased costs is not specifically disallowed hereunder; (4) such increased costs shall exclude any claim by Generator for loss of profits, economic loss, or indirect or consequential losses; and (5) Generator provides appropriate documentation to the AESO establishing the amount of such increased costs;
(C) a Designated Change in Law which results in a net decrease in Generator's costs, the AESO shall, without duplication, reduce the Strike Price to reasonably account for any decreased costs, which adjustments shall be calculated on the basis that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such decreased costs are not otherwise adjusted or provided for hereunder; and (3) Generator provides appropriate documentation to the AESO establishing the amount of such decreased costs; and
(D) a Designated Change in Law which results in a Change in Law Constraint, the AESO shall, on a monthly basis and in accordance with and subject to the provisions of Section 7.4, pay the Generator for the Forgone CIL Energy that the Generator establishes, to the reasonable satisfaction of the AESO, resulted from such Change in Law Constraint; provided that: (1) Generator undertakes its obligations in respect of such Designated Change in Law pursuant to Sections 12.1(c) and 12.1(d)(i); (2) such Forgone CIL Energy is not otherwise provided for or accounted for hereunder; (3) recovery in respect of such Forgone CIL Energy is not specifically disallowed hereunder; and (4) Generator provides appropriate documentation to the AESO establishing the Change in Law Constraint Limit; and provided further that if the effects of such Change in Law Constraint can be mitigated, remedied or reduced by a capital improvement to the Facility, the AESO shall have the option (but not the obligation) to provide written notice to the Generator requiring it to make such capital improvement to the Facility, in which case, the reasonable costs of such capital improvement shall be for the account of AESO.
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Samples: Project Agreement
