Force Majeure During Construction Period. If a Force Majeure Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement: (a) to the extent that and for so long as either party is prevented by the Force Majeure Event from performing any obligation under this Agreement, that party is relieved from any liability or consequence under this Agreement arising from its inability to perform or delay in performing that obligation; (b) if the Force Majeure Event wholly or substantially prevents the Contractor from proceeding with the Project for a period of at least 21 days, then the Contractor’s Construction Schedule and the dates in Section 5.11 and clauses (g), (h) and (i) of Section 16.8 shall be adjusted commensurately to the period during which the Contractor is prevented by the Force Majeure Event from proceeding with the Project; (c) no non-performance of any obligation under this Agreement shall give rise to a Termination Event, to the extent that and for so long as performance of the obligation is prevented by the Force Majeure Event; (d) the Traffic Availability Target Date shall not be adjusted, but if by reason of the Force Majeure Event, Traffic Availability is delayed until beyond the Traffic Availability Target Date, then the Province shall upon Traffic Availability pay to the Contractor its damages resulting from Traffic Availability being delayed beyond the Traffic Availability Target Date by the Force Majeure Event (and shall, from and after the Traffic Availability Target Date, make advance payment to the Contractor on account of such damages, to the extent such damages can reasonably be determined prior to Traffic Availability, it being mutually anticipated by the parties that such damages and such advance payment will include at least an amount equal to the Capital Payment that would have been payable had Traffic Availability been achieved), subject to the Contractor’s obligation to take reasonable steps to mitigate the delay and to mitigate its damages; (e) no damages are payable under clause (d) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11) by insurance maintained by or for the benefit of the Contractor; and (f) if one or more Force Majeure Event results in the Contractor being wholly or substantially prevented from proceeding with the Project for an aggregate period of at least 120 days falling within one or more Construction Seasons, then the Payment Schedule shall be adjusted and amended by postponing all Major Rehabilitation Payments by: (i) one year, if the aggregate period is up to 240 days falling within one or more Construction Seasons; and (ii) two years, if the aggregate period is over 240 days falling within one or more Construction Seasons; provided that in no event shall Major Rehabilitation Payments be postponed beyond the end of the Term.
Appears in 2 contracts
Samples: Design, Build, Finance and Operate Agreement, Design, Build, Finance and Operate Agreement
Force Majeure During Construction Period. If a Force Majeure Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as either party is prevented by the Force Majeure Event from performing any obligation under this Agreement, that party is relieved from any liability or consequence under this Agreement arising from its inability to perform or delay in performing that obligation;
(b) if the Force Majeure Event wholly or substantially prevents the Contractor from proceeding with the Project for a period of at least 21 days, then the Contractor’s Construction Schedule and the dates in Section 5.11 and clauses (g), (h) and (i) of Section 16.8 shall be adjusted commensurately to the period during which the Contractor is prevented by the Force Majeure Event from proceeding with the Project;
(c) no non-performance of any obligation under this Agreement shall give rise to a Termination Event, to the extent that and for so long as performance of the obligation is prevented by the Force Majeure Event;
(d) the Traffic Availability Target Date shall not be adjusted, but if by reason of the Force Majeure Event, Traffic Availability is delayed until beyond the Traffic Availability Target Date, then the Province shall upon Traffic Availability pay to the Contractor its damages resulting from Traffic Availability being delayed beyond the Traffic Availability Target Date by the Force Majeure Event (and shall, from and after the Traffic Availability Target Date, make advance payment to the Contractor on account of such damages, to the extent such damages can reasonably be determined prior to Traffic Availability, it being mutually anticipated by the parties that such damages and such advance payment will include at least an amount equal to the each Capital Payment that would have been payable had Traffic Availability been achieved), subject to the Contractor’s obligation to take reasonable steps to mitigate the delay and to mitigate its damages. Notwithstanding that advance payment to the Contractor of such damages will not start until the Traffic Availability Target Date, if prior to the Traffic Availability Target Date the Contractor incurs direct out of pocket expenditures as part of such damages and such out of pocket expenditures cannot reasonably be financed until the Traffic Availability Target Date by the Project Financing, then the Province shall make advance payment to the Contractor on account of such out of pocket expenditures as soon as reasonably practicable following notification by the Contractor to the Province that such out of pocket expenditures have been incurred by the Contractor;
(e) no damages are payable under clause (d) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11) by insurance maintained by or for the benefit of the Contractor; and;
(f) if one or more Force Majeure Event Events results in the Contractor being wholly or substantially prevented from proceeding with the Project for an aggregate period of at least 120 days falling within one or more Construction Seasons, then the Payment Schedule shall be adjusted and amended by postponing all Major Rehabilitation Payments by:
(i) one year, if the aggregate period is up to and including 240 days falling within one or more Construction Seasons; and
(ii) two years, if the aggregate period is over 240 days falling within one or more Construction Seasons; provided that in no event shall Major Rehabilitation Payments be postponed beyond the end of the Term; and
(g) if the Contractor anticipates that the Force Majeure Event will delay Traffic Availability, but is of the opinion the delay can be avoided or mitigated through extraordinary measures, the Contractor may propose to the Province that such extraordinary measures be taken by the Contractor at the Province’s expense.
Appears in 2 contracts
Samples: Design, Build, Finance and Operate Agreement, Dbfo Agreement
Force Majeure During Construction Period. If a Force Majeure Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as either party is prevented by the Force Majeure Event from performing any obligation under this Agreement, that party is relieved from any liability or consequence under this Agreement arising from its inability to perform or delay in performing that obligation;
(b) if the Force Majeure Event wholly or substantially prevents the Contractor from proceeding with the PNI Project or the Project for a continuous period of at least 21 days, then the Contractor’s Construction Schedule and the dates in Section 5.11 and clauses (g), (h) ), (h.1), (i), and (ii.1) of Section 16.8 shall be adjusted commensurately to the period during which the Contractor is prevented by the Force Majeure Event from proceeding with the Project;
(c) no non-performance of any obligation under this Agreement shall give rise to a Termination Event, to the extent that and for so long as performance of the obligation is prevented by the Force Majeure Event;
(d) the Traffic Availability Target Date Date(s) shall not be adjusted, but if by reason of the Force Majeure Event, PNI Traffic Availability or RNI Traffic Availability is delayed until beyond the applicable Traffic Availability Target Date, then the Province shall upon whichever is applicable of PNI Traffic Availability or RNI Traffic Availability pay to the Contractor its damages resulting from whichever is applicable of PNI Traffic Availability or RNI Traffic Availability being delayed beyond the applicable Traffic Availability Target Date by the Force Majeure Event (and shall, from and after the applicable Traffic Availability Target Date, make advance payment to the Contractor on account of such damages, to the extent such damages can reasonably be determined prior to whichever is applicable of PNI Traffic Availability or RNI Traffic Availability, it being mutually anticipated by the parties that such damages and such advance payment will include at least an amount equal to the each PNI Capital Payment or RNI Capital Payment, as applicable, that would have been payable had whichever is applicable of PNI Traffic Availability or RNI Traffic Availability been achieved), subject to the Contractor’s obligation to take reasonable steps to mitigate the delay and to mitigate its damages. Notwithstanding that advance payment to the Contractor of such damages will not start until the applicable Traffic Availability Target Date, if prior to the applicable Traffic Availability Target Date the Contractor incurs direct out of pocket expenditures as part of such damages and such out of pocket expenditures cannot reasonably be financed until the applicable Traffic Availability Target Date by the Project Financing, then the Province shall make advance payment to the Contractor on account of such out of pocket expenditures as soon as reasonably practicable following notification by the Contractor to the Province that such out of pocket expenditures have been incurred by the Contractor;
(e) no damages are payable under clause (d) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11) by insurance maintained by or for the benefit of the Contractor; and;
(f) if one or more Force Majeure Event Events results in the Contractor being wholly or substantially prevented from proceeding with the PNI Project for an aggregate period of at least 120 days falling within one or more Construction Seasons, then the Payment Schedule shall be adjusted and amended by postponing all PNI Major Rehabilitation Payments by:
(i) one year, if the aggregate period is up to and including 240 days falling within one or more Construction Seasons; and
(ii) two years, if the aggregate period is over 240 days falling within one or more Construction Seasons; provided that in no event shall PNI Major Rehabilitation Payments be postponed beyond the end of the Term;
(f.1) if one or more Force Majeure Events results in the Contractor being wholly or substantially prevented from proceeding with the RNI Project for an aggregate period of at least 120 days falling within one or more Construction Seasons, then the Payment Schedule shall be adjusted and amended by postponing all RNI Major Rehabilitation Payments by:
(i) one year, if the aggregate period is up to and including 240 days falling within one or more Construction Seasons; and
(ii) two years, if the aggregate period is over 240 days falling within one or more Construction Seasons; provided that in no event shall RNI Major Rehabilitation Payments be postponed beyond the end of the Term; and
(g) if the Contractor anticipates that the Force Majeure Event will delay Traffic Availability, but is of the opinion the delay can be avoided or mitigated through extraordinary measures, the Contractor may propose to the Province that such extraordinary measures be taken by the Contractor at the Province’s expense.
Appears in 1 contract
Force Majeure During Construction Period. If a Force Majeure Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as either party is prevented by the Force Majeure Event from performing any obligation under this Agreement, that party is relieved from any liability or consequence under this Agreement (including Payment Adjustments) arising from its inability to perform or delay in performing that obligation;
(b) if the Force Majeure Event wholly or substantially prevents the Contractor from proceeding with the Project for a period of at least 21 twenty-one days, then the Contractor’s Construction Schedule and the dates in Section 5.11 and clauses (g), (h) and (i) of Section 16.8 shall be adjusted commensurately to the period during which the Contractor is prevented by the Force Majeure Event from proceeding with the Project;
(c) no non-performance of any obligation under this Agreement shall give rise to a Termination Event, to the extent that and for so long as performance of the obligation is prevented by the Force Majeure Event;
(d) the Traffic Availability Target Date shall not be adjusted, but if by reason of the Force Majeure Event, Traffic Availability is delayed until beyond the Traffic Availability Target Date, then the Province shall upon Traffic Availability pay to the Contractor its damages resulting from Traffic Availability being delayed beyond the Traffic Availability Target Date by the Force Majeure Event (and shall, from and after the Traffic Availability Target Date, make advance payment to the Contractor on account of such damages, to the extent such damages can reasonably be determined prior to Traffic Availability, it being mutually anticipated by the parties that such damages and such advance payment will include at least an amount equal to the each Capital Payment that would have been payable had Traffic Availability been achieved), subject to the Contractor’s obligation to take reasonable steps to mitigate the delay and to mitigate its damages. Notwithstanding that advance payment to the Contractor of such damages will not start until the Availability Target Date, if prior to the Availability Target Date the Contractor incurs direct out of pocket expenditures as part of such damages and such out of pocket expenditures cannot reasonably be financed until the Availability Target Date by the Project Financing, then the Province shall make advance payment to the Contractor on account of such out of pocket expenditures as soon as reasonably practicable following notification by the Contractor to the Province that such out of pocket expenditures have been incurred by the Contractor;
(e) no damages are payable under clause (d) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11) by insurance maintained by or for the benefit of the Contractor; and;
(f) if one or more Force Majeure Event Events results in the Contractor being wholly or substantially prevented from proceeding with the Project for an aggregate period of at least 120 days falling within one or more Construction Seasonsdays, then the Payment Schedule shall be adjusted and amended by postponing all Major Rehabilitation Renewal Payments by:
(i) one year, if the aggregate period is up to and including 240 days falling within one or more Construction Seasonsdays; and
(ii) two years, if the aggregate period is over 240 days falling within one or more Construction Seasonsdays; provided that in no event shall Major Rehabilitation Renewal Payments be postponed beyond the end of the Term; and
(g) if the Contractor anticipates that the Force Majeure Event will delay Availability, but is of the opinion the delay can be avoided or mitigated through extraordinary measures, the Contractor may propose to the Province that such extraordinary measures be taken by the Contractor at the Province’s expense.
Appears in 1 contract
Force Majeure During Construction Period. If a Force Majeure Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as either party is prevented by the Force Majeure Event from performing any obligation under this Agreement, that party is relieved from any liability or consequence under this Agreement arising from its inability to perform or delay in performing that obligation;
(b) if the Force Majeure Event wholly or substantially prevents the Contractor from proceeding with the Project for a period of at least 21 days, then the Contractor’s Construction Schedule and the dates in Section 5.11 and clauses (g), (h) and (i) of Section 16.8 shall be adjusted commensurately to the period during which the Contractor is prevented by the Force Majeure Event from proceeding with the Project;
(c) no non-performance of any obligation under this Agreement shall give rise to a Termination Event, to the extent that and for so long as performance of the obligation is prevented by the Force Majeure Event;
(d) the Traffic Availability Target Date shall not be adjusted, but if by reason of the Force Majeure Event, Traffic Availability is delayed until beyond the Traffic Availability Target Date, then the Province shall upon Traffic Availability pay to the Contractor its damages resulting from Traffic Availability being delayed beyond the Traffic Availability Target Date by the Force Majeure Event (and shall, from and after the Traffic Availability Target Date, make advance payment to the Contractor on account of such damages, to the extent such damages can reasonably be determined prior to Traffic Availability, it being mutually anticipated by the parties that such damages and such advance payment will include at least an amount equal to the each Capital Payment that would have been payable had Traffic Availability been achieved), subject to the Contractor’s obligation to take reasonable steps to mitigate the delay and to mitigate its damages;
(e) no damages are payable under clause (d) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11) by insurance maintained by or for the benefit of the Contractor; and
(f) if one or more Force Majeure Event Events results in the Contractor being wholly or substantially prevented from proceeding with the Project for an aggregate period of at least 120 days falling within one or more Construction Seasons, then the Payment Schedule shall be adjusted and amended by postponing all Major Rehabilitation Payments by:
(i) one year, if the aggregate period is up to and including 240 days falling within one or more Construction Seasons; and
(ii) two years, if the aggregate period is over 240 days falling within one or more Construction Seasons; provided that in no event shall Major Rehabilitation Payments be postponed beyond the end of the Term.
Appears in 1 contract
Force Majeure During Construction Period. If a Force Majeure Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as either party is prevented by the Force Majeure Event from performing any obligation under this Agreement, that party is relieved from any liability or consequence under this Agreement arising from its inability to perform or delay in performing that obligation;
(b) if the Force Majeure Event affecting a School wholly or substantially prevents the Contractor from proceeding with the Project that School for a period of at least 21 daysdays (measured on a critical path basis having regard to the Contractor’s Construction Schedule), then the Contractor’s Construction Schedule and Schedule, the dates in Section 5.11 and the date specified for adjustment in clauses (g), (h), (i) and (ij) of Section 16.8 shall be adjusted adjusted, in respect only of that School, commensurately to the period during which the Contractor is prevented by the Force Majeure Event from proceeding with the Projectthat School;
(c) no non-performance of any obligation under this Agreement shall give rise to a Termination Event, to the extent that and for so long as performance of the obligation is prevented by the Force Majeure Event;
(d) the Traffic Total Availability Target Date shall not be adjusted, but if by reason of a School would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event, Traffic Availability is delayed until beyond the Traffic Availability Target Date, then the Province shall upon Traffic Availability shall, in respect only of delay caused directly by the Force Majeure Event, pay to the Contractor its damages resulting from Traffic School Availability at that School not being achieved on or prior to the Total Availability Target Date, provided that such damages and such payment shall, in respect of damages resulting from delayed beyond payment of School Capital Payments, Adjusted School Capital Payments or the Traffic Provincial Funding Final Payment, be comprised of an amount equal to the following (without duplication):
(i) if Total Availability would have been achieved by the Total Availability Target Date but for the Force Majeure Event, then the Contractor shall be entitled to receive each of the following amounts:
(A) the School Capital Payments for each School for which School Availability would have been achieved on or prior to the Total Availability Target Date but for the Force Majeure Event calculated from but excluding the Total Availability Target Date to and including the earlier of the revised date that School Availability is scheduled to be achieved as a result of the Force Majeure Event and the date that School Availability is achieved for each such School;
(B) for those Schools that achieved School Availability by the Total Availability Target Date and for those Schools that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event but that achieve School Availability prior to Total Availability, the 20% of the School Capital Payments not included in the Adjusted School Capital Payments for such Schools calculated from but excluding the later of the Total Availability Target Date and the date that School Availability is achieved for each such School to and including the earlier of the revised date on which Total Availability is scheduled to be achieved as a result of the Force Majeure Event and the date that Total Availability is achieved, provided that if a School that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event fails to achieve School Availability by the revised date scheduled for School Availability at that School then, from and after that revised date, no payments shall be made pursuant to this subparagraph in respect of any School; and
(C) subject to clause (e), the commercially reasonable incremental financing costs and commercially reasonable breakage costs or make whole premiums (an estimate of and explanation for which the Contractor shall provide to the Province as soon as practicable after the occurrence of the Force Majeure Event causing a School that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event to be delayed) on financing to be repaid from the Provincial Funding Final Payment calculated from but excluding the date that the Provincial Funding Final Payment would have been paid but for the Force Majeure Event to and including the earlier of the revised date that the Provincial Funding Final Payment is scheduled to be paid as a result of the Force Majeure Event and the date that the Provincial Funding Final Payment is actually paid, payment for which shall be made on a monthly basis on the dates that the Payments would have been payable had the Force Majeure Event not occurred;
(ii) if Total Availability would not have been achieved by the Total Availability Target Date notwithstanding the occurrence of the Force Majeure Event, then the Contractor shall be entitled to receive:
(A) the Adjusted School Capital Payments for each School that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event calculated for each such School from but excluding the Total Availability Target Date to and including the day that Total Availability would have been achieved but for the Schools affected by the Force Majeure Event;
(B) School Capital Payments for each School that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event calculated from but excluding the date that Total Availability would have been achieved but for the Schools affected by the Force Majeure Event to and including the earlier of the revised date that School Availability is scheduled to be achieved as a result of the Force Majeure Event and the date that School Availability is achieved for each such School;
(C) for those Schools that achieved School Availability by the Total Availability Target Date and shallfor those Schools that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event but that achieve School Availability prior to Total Availability, the 20% portion of the School Capital Payments not included in the Adjusted School Capital Payments for such Schools, calculated from but excluding the later of the day that Total Availability would have been achieved but for the Schools affected by the Force Majeure Event and the date that School Availability is achieved for each such School to and including the earlier of the revised date that Total Availability is scheduled to be achieved as a result of the Force Majeure Event and the date that Total Availability is achieved, provided that if a School that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event fails to achieve School Availability by the revised date scheduled for School Availability at that School then, from and after that revised date, no payments shall be made pursuant to this subparagraph in respect of any School; and
(D) subject to clause (e), the Traffic commercially reasonable incremental financing costs and commercially reasonable breakage costs or make whole premiums (an estimate of and explanation for which the Contractor shall provide to the Province as soon as practicable after the occurrence of the Force Majeure Event causing a School that would have achieved School Availability on or prior to the Total Availability Target DateDate but for the Force Majeure Event to be delayed) on financing to be repaid from the Provincial Funding Final Payment calculated from but excluding the date that the Provincial Funding Final Payment would have been paid but for the Force Majeure Event to and including the earlier of the revised date that the Provincial Funding Final Payment is scheduled to be paid as a result of the Force Majeure Event and the date that the Provincial Funding Final Payment is actually paid, make advance payment to for which shall be made on a monthly basis on the Contractor on account of such damages, to the extent such damages can reasonably be determined prior to Traffic Availability, it being mutually anticipated by the parties dates that such damages and such advance payment will include at least an amount equal to the Adjusted School Capital Payment that Payments would have been payable had Traffic Availability been achieved), the Force Majeure Event not occurred; subject to the Contractor’s obligation to take reasonable steps to mitigate the delay and to mitigate its damages;
(e) the Province may elect in its sole discretion to pay to the Contractor the Provincial Funding Final Payment on the date that the Provincial Funding Final Payment would have been payable but for the Force Majeure Event, in which case Section 12.1(d)(i)(C) and Section 12.1(d)(ii)(D), as applicable, shall not apply;
(f) no damages are payable under clause (d) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11) by insurance maintained by or for the benefit of the Contractor;
(g) if the Force Majeure Event occurs during the School M&R Period, then Sections 12.2(b) and 12.2(d) shall apply;
(h) in the event that the parties cannot, for the purpose of determining the payment amounts pursuant to clause (d), agree on the date that Total Availability would have been achieved or the date that a School would have achieved School Availability but for the Force Majeure Event, or the revised date on which Total Availability should be scheduled to be achieved or on which a School should be scheduled to achieve School Availability following the occurrence of the Force Majeure Event, having used reasonable commercial efforts to resolve their dispute through negotiation, then either the Contractor or the Province may refer the matter to the Project Adjudicator (as defined in Schedule 5 (Design and Plan Certification Process and Review Procedure)) for determination in accordance with the procedure set out in section 4 of Schedule 5; and
(fi) if one or more the Contractor anticipates that the Force Majeure Event results in will delay Total Availability, but is of the opinion the delay can be avoided or mitigated through extraordinary measures, the Contractor being wholly or substantially prevented from proceeding with may propose to the Project for an aggregate period of Province that such extraordinary measures be taken by the Contractor at least 120 days falling within one or more Construction Seasons, then the Payment Schedule shall be adjusted and amended by postponing all Major Rehabilitation Payments by:
(i) one year, if the aggregate period is up to 240 days falling within one or more Construction Seasons; and
(ii) two years, if the aggregate period is over 240 days falling within one or more Construction Seasons; provided that in no event shall Major Rehabilitation Payments be postponed beyond the end of the TermProvince’s expense.
Appears in 1 contract
Force Majeure During Construction Period. If a Force Majeure Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as either party is prevented by the Force Majeure Event from performing any obligation under this Agreement, that party is relieved from any liability or consequence under this Agreement arising from its inability to perform or delay in performing that obligation;
(b) if the Force Majeure Event affecting a School wholly or substantially prevents the Contractor from proceeding with the Project that School for a period of at least 21 daysdays (measured on a critical path basis having regard to the Contractor’s Construction Schedule), then the Contractor’s Construction Schedule and Schedule, the dates in Section 5.11 and the date specified for adjustment in clauses (g), (h), (i) and (ij) of Section 16.8 shall be adjusted adjusted, in respect only of that School, commensurately to the period during which the Contractor is prevented by the Force Majeure Event from proceeding with the Projectthat School;
(c) no non-performance of any obligation under this Agreement shall give rise to a Termination Event, to the extent that and for so long as performance of the obligation is prevented by the Force Majeure Event;
(d) the Traffic Total Availability Target Date shall not be adjusted, but if by reason of a School would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event, Traffic Availability is delayed until beyond the Traffic Availability Target Date, then the Province shall upon Traffic Availability shall, in respect only of delay caused directly by the Force Majeure Event, pay to the Contractor its damages resulting from Traffic School Availability at that School not being achieved on or prior to the Total Availability Target Date, provided that such damages and such payment shall, in respect of damages resulting from delayed beyond payment of School Capital Payments or Adjusted School Capital Payments, be comprised of an amount equal to the Traffic following (without duplication):
(i) if Total Availability would have been achieved by the Total Availability Target Date but for the Force Majeure Event, then the Contractor shall be entitled to receive each of the following amounts:
(A) the School Capital Payments for each School for which School Availability would have been achieved on or prior to the Total Availability Target Date but for the Force Majeure Event calculated from but excluding the Total Availability Target Date to and including the earlier of the revised date that School Availability is scheduled to be achieved as a result of the Force Majeure Event and the date that School Availability is achieved for each such School; and
(B) for those Schools that achieved School Availability by the Total Availability Target Date and for those Schools that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event but that achieve School Availability prior to Total Availability, the 20% of the School Capital Payments not included in the Adjusted School Capital Payments for such Schools calculated from but excluding the later of the Total Availability Target Date and the date that School Availability is achieved for each such School to and including the earlier of the revised date on which Total Availability is scheduled to be achieved as a result of the Force Majeure Event and the date that Total Availability is achieved, provided that if a School that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event fails to achieve School Availability by the revised date scheduled for School Availability at that School then, from and after that revised date, no payments shall be made pursuant to this subparagraph in respect of any School, payment for which shall be made on a monthly basis on the dates that the Payments would have been payable had the Force Majeure Event not occurred;
(ii) if Total Availability would not have been achieved by the Total Availability Target Date notwithstanding the occurrence of the Force Majeure Event, then the Contractor shall be entitled to receive:
(A) the Adjusted School Capital Payments for each School that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event calculated for each such School from but excluding the Total Availability Target Date to and including the day that Total Availability would have been achieved but for the Schools affected by the Force Majeure Event;
(B) School Capital Payments for each School that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event calculated from but excluding the date that Total Availability would have been achieved but for the Schools affected by the Force Majeure Event to and including the earlier of the revised date that School Availability is scheduled to be achieved as a result of the Force Majeure Event and the date that School Availability is achieved for each such School; and
(C) for those Schools that achieved School Availability by the Total Availability Target Date and shallfor those Schools that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event but that achieve School Availability prior to Total Availability, the 20% portion of the School Capital Payments not included in the Adjusted School Capital Payments for such Schools, calculated from but excluding the later of the day that Total Availability would have been achieved but for the Schools affected by the Force Majeure Event and the date that School Availability is achieved for each such School to and including the earlier of the revised date that Total Availability is scheduled to be achieved as a result of the Force Majeure Event and the date that Total Availability is achieved, provided that if a School that would have achieved School Availability on or prior to the Total Availability Target Date but for the Force Majeure Event fails to achieve School Availability by the revised date scheduled for School Availability at that School then, from and after that revised date, no payments shall be made pursuant to this subparagraph in respect of any School, payment for which shall be made on a monthly basis on the Traffic Availability Target Date, make advance payment to the Contractor on account of such damages, to the extent such damages can reasonably be determined prior to Traffic Availability, it being mutually anticipated by the parties dates that such damages and such advance payment will include at least an amount equal to the Adjusted School Capital Payment that Payments would have been payable had Traffic Availability been achieved), the Force Majeure Event not occurred; subject to the Contractor’s obligation to take reasonable steps to mitigate the delay and to mitigate its damages;
(e) no damages are payable under clause (d) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11) by insurance maintained by or for the benefit of the Contractor; and;
(f) if one or more the Force Majeure Event results occurs during the School M&R Period, then Sections 12.2(b) and 12.2(d) shall apply;
(g) in the event that the parties cannot, for the purpose of determining the payment amounts pursuant to clause (d), agree on the date that Total Availability would have been achieved or the date that a School would have achieved School Availability but for the Force Majeure Event, or the revised date on which Total Availability should be scheduled to be achieved or on which a School should be scheduled to achieve School Availability following the occurrence of the Force Majeure Event, having used reasonable commercial efforts to resolve their dispute through negotiation, then either the Contractor being wholly or substantially prevented from proceeding the Province may refer the matter to the Project Adjudicator (as defined in Schedule 5 (Design and Plan Certification Process and Review Procedure)) for determination in accordance with the Project for an aggregate period procedure set out in section 4 of at least 120 days falling within one or more Construction Seasons, then the Payment Schedule shall be adjusted and amended by postponing all Major Rehabilitation Payments by:
(i) one year, if the aggregate period is up to 240 days falling within one or more Construction Seasons5; and
(iih) two years, if the aggregate period Contractor anticipates that the Force Majeure Event will delay Total Availability, but is over 240 days falling within one or more Construction Seasons; provided that in no event shall Major Rehabilitation Payments be postponed beyond the end of the Termopinion the delay can be avoided or mitigated through extraordinary measures, the Contractor may propose to the Province that such extraordinary measures be taken by the Contractor at the Province’s expense.
Appears in 1 contract
