Common use of Excusable Events Clause in Contracts

Excusable Events. To the extent that the O&M Contractor is prevented or delayed from performing the O&M Services as a result of an Excusable Event then the Project Company must provide appropriate relief to the O&M Contractor from those obligations of the O&M Contractor which it is unable to perform as a consequence of the Excusable Event (including where relevant, relief from its obligation to pay Availability Liquidated Damages or application of the Response Time Price Adjustment) to the extent that such Excusable Event was not caused or contributed by an act or omission of the O&M Contractor, the O&M Contractor Representative or any of their agents, personnel or subcontractors. The Project Company shall be relieved from its obligation to pay the relevant portion of the Contract Price in respect of any period during which the O&M Contractor is unable to perform its obligations as a result of an Excusable Event: which is outside the reasonable control of the Project Company; or to the extent that such Excusable Event is caused or contributed to by the act or omission of the O&M Contractor, in breach of its obligations under in this Agreement, save in relation to a Buyer Curtailment Period for which Clause 3.15(c) (Buyer Curtailment Period) shall apply. The O&M Contractor must notify the Project Company at the earliest possible opportunity of an Excusable Event. Such notice must as soon as practicable, detail the cause, anticipated duration, potential remedies for and estimated cost of the Excusable Event and the extent to which the obligations of the O&M Contractor are affected by it. The O&M Contractor must adopt, subject to the approval of the Project Company, all measures necessary to mitigate the effects of the Excusable Event and as appropriate, to allow the Operation of the Facility and resumption of O&M Services as soon as possible. For the avoidance of doubt, an Excusable Event will not relieve the O&M Contractor of its obligations to safeguard the Facility or the Site or to provide care and custody, unless such Excusable Event is also a Force Majeure Event affecting the O&M Contractor. [OPTION A – for use with Clause 3.9, where the O&M Contractor has Responsibility for all Spare Parts Included as part of the O&M Services] If identified as applicable in the Key Information Table, the Parties acknowledge and agree that to the extent that the Project Company has the benefit of any manufacturer and supply guarantees and warranties, the Project Company must procure that the O&M Contractor has full rights so as to enable the O&M Contractor to act on its behalf in respect of all claims under or pursuant to such warranties and guarantees. [OPTION B – for use with Clauses 3.10 and 3.11, where the O&M Contractor has Responsibility for the Cost of Included Spare Parts only as part of the O&M Services] If identified as applicable in the Key Information Table, the Parties acknowledge and agree that to the extent that the Project Company has the benefit of any manufacturer and supply guarantees and warranties, the Project Company must: in relation to Included Spare Parts, procure that the O&M Contractor has full rights so as to enable the O&M Contractor to act on its behalf in respect of all claims under or pursuant to such warranties and guarantees; and in relation to Excluded Spare Parts, use reasonable endeavours to procure that the O&M Contractor has full rights so as to enable the O&M Contractor to act on its behalf in respect of all claims under or pursuant to such warranties and guarantees. If the O&M Contractor replaces any Component Part pursuant to this Agreement, it hereby assigns to the Project Company the benefit of all manufacturer warranties related to such Component Part. The O&M Contractor must manage and be fully responsible for managing any claims under or relating to any manufacturer warranties in relation to any of the Component Parts, provided that the Project Company must use reasonable endeavours in assisting the O&M Contractor in meeting this obligation and the O&M Contractor will not be obliged to manage any claim that has no reasonable prospects of success or where the costs of bringing such a claim are disproportionate. This Clause 4.5(d) (Manufacturer Warranties) will not apply where the Project Company has elected to procure the repair of the Defect at its own cost in accordance with Clause 3.7(a) (Spare Parts relating to Defects before Expiry of the Defects Warranty Period). Prior to making any claim under a manufacturer warranty in relation to any of the Component Parts, the O&M Contractor must inform the Project Company of its intention to do so and in relation to any claim, must comply with the reasonable instructions of the Project Company and keep the Project Company informed regularly of progress with the claim. In relation to any Component Part for which there is a manufacturer warranty, the Project Company may at the cost of the Project Company, request that the O&M Contractor obtains from the relevant manufacturer an extension of the period of that manufacturer warranty, in which case the O&M Contractor shall use all reasonable endeavours to meet such request. To avoid doubt, where the time-period of a manufacturer warranty of any Component Part is extended in accordance with this Clause 4.5(f), Clause 4.5 (Manufacturer Warranties) shall fully apply to such Component Part.

Excusable Events. To the extent that the O&M Contractor is prevented 2.5.1 Adjustments in Schedule Because of Excusable Event. Except as otherwise specifically provided in this Agreement or delayed from performing the O&M Services as a result of Changes in the Work as permitted in Section 1.7 of this Agreement, an Excusable Event then extension in the Project Company must provide appropriate relief to Substantial Completion Dates shall only be granted under the O&M Contractor from those obligations following circumstances: (a) a delay occurs in the progress of the O&M Contractor which it is unable to perform as a consequence of the Excusable Event (including where relevant, relief from its obligation to pay Availability Liquidated Damages or application of the Response Time Price Adjustment) to the extent that such Excusable Event was not caused or contributed by an act or omission of the O&M Contractor, the O&M Contractor Representative or any of their agents, personnel or subcontractors. The Project Company shall be relieved from its obligation to pay the relevant portion of the Contract Price in respect of any period during which the O&M Contractor is unable to perform its obligations Work as a result of an Excusable Event: which is outside , and (b) the reasonable control Contractor has complied with the terms and conditions of the Project Companyfollowing Sections: (a) The Contractor, within seven (7) days of the date upon which the Contractor has knowledge of the Excusable Event, notifies the Owner, in writing, of the cause of the event and the approximate number of days the Contractor expects to be delayed as a result of such event; or and the Contractor makes a request for an extension of time to the extent that such Excusable Event is caused or contributed to by the act or omission of the O&M ContractorOwner, in breach of its obligations under in this Agreementwriting, save in relation to a Buyer Curtailment Period for which Clause 3.15(cwithin seven (7) (Buyer Curtailment Period) shall apply. The O&M Contractor must notify days after the Project Company at the earliest possible opportunity of an Excusable Event. Such notice must as soon as practicable, detail the cause, anticipated duration, potential remedies for and estimated cost cessation of the Excusable Event specifying the number of days the Contractor believes that its activities were in fact delayed as a result of the event. Compliance with this Section is a condition precedent to receipt of an extension in the Substantial Completion Dates. In the event of a failure to comply with this Section, the Contractor shall not be entitled to an extension of time; (b) The Contractor can demonstrate, to the reasonable satisfaction of the Owner, that the activity claimed to have been delayed was in fact delayed by the Excusable Event, and that the delay in such activity will result in a delay in Substantial Completion of the Casino and/or the Hotel beyond the applicable Substantial Completion Date; and (c) The initial notice provided by the Contractor under Clause (a) above describes the efforts of the Contractor that have been (or are going to be) undertaken by the Contractor to overcome or remove the Excusable Event and to minimize the potential adverse effect on the time for performance of the Work resulting from such Excusable Event. Upon satisfaction by the Contractor of the terms and conditions in the preceding clauses, the Owner and the Contractor will use good faith efforts to agree on the extent to which the obligations Work has been delayed on account of the O&M Contractor are affected by it. The O&M Contractor must adopt, subject to the approval of the Project Company, all measures necessary to mitigate the effects of the Excusable Event and as appropriate, to allow the Operation of the Facility and resumption of O&M Services as soon as possible. For the avoidance of doubt, an Excusable Event will not relieve the O&M Contractor of its obligations to safeguard the Facility or the Site or to provide care and custody, unless any such Excusable Event is also a Force Majeure Event affecting Event. Once the O&M Contractor. [OPTION A – for use with Clause 3.9, where the O&M Contractor has Responsibility for all Spare Parts Included parties have mutually agreed as part of the O&M Services] If identified as applicable in the Key Information Table, the Parties acknowledge and agree that to the extent that the Project Company has the benefit of any manufacturer and supply guarantees and warrantiessuch delay, the Project Company must procure that the O&M Contractor has full rights so they shall enter into a Change Order reflecting their agreement as to enable the O&M Contractor to act on its behalf in respect of all claims under or pursuant to such warranties and guarantees. [OPTION B – for use with Clauses 3.10 and 3.11, where the O&M Contractor has Responsibility for the Cost of Included Spare Parts only as part of the O&M Services] If identified as applicable adjustment in the Key Information Table, the Parties acknowledge and agree that to the extent that the Project Company has the benefit of any manufacturer and supply guarantees and warranties, the Project Company must: in relation to Included Spare Parts, procure that the O&M Contractor has full rights so as to enable the O&M Contractor to act on its behalf in respect of all claims under or pursuant to such warranties and guarantees; and in relation to Excluded Spare Parts, use reasonable endeavours to procure that the O&M Contractor has full rights so as to enable the O&M Contractor to act on its behalf in respect of all claims under or pursuant to such warranties and guarantees. If the O&M Contractor replaces any Component Part pursuant to this Agreement, it hereby assigns to the Project Company the benefit of all manufacturer warranties related to such Component Part. The O&M Contractor must manage and be fully responsible for managing any claims under or relating to any manufacturer warranties in relation to any of the Component Parts, provided that the Project Company must use reasonable endeavours in assisting the O&M Contractor in meeting this obligation Schedule and the O&M Contractor will not be obliged to manage any claim that has no reasonable prospects of success or where the costs of bringing such a claim are disproportionate. This Clause 4.5(d) (Manufacturer Warranties) will not apply where the Project Company has elected to procure the repair of the Defect at its own cost in accordance with Clause 3.7(a) (Spare Parts relating to Defects before Expiry of the Defects Warranty Period). Prior to making any claim under a manufacturer warranty in relation to any of the Component Parts, the O&M Contractor must inform the Project Company of its intention to do so and in relation to any claim, must comply with the reasonable instructions of the Project Company and keep the Project Company informed regularly of progress with the claim. In relation to any Component Part for which there is a manufacturer warranty, the Project Company may at the cost of the Project Company, request that the O&M Contractor obtains from the relevant manufacturer an extension of the period of that manufacturer warranty, in which case the O&M Contractor shall use all reasonable endeavours to meet such request. To avoid doubt, where the time-period of a manufacturer warranty of any Component Part is extended in accordance with this Clause 4.5(f), Clause 4.5 (Manufacturer Warranties) shall fully apply to such Component PartSubstantial Completion Dates.