Relief Event During Construction Period. If a Relief Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement: (a) to the extent that and for so long as the Contractor is prevented by the Relief Event from performing any obligation under this Agreement, the Contractor is relieved from any liability or consequence under this Agreement arising from its delay in performing that obligation; (b) if the Relief Event wholly or substantially prevents the Contractor from proceeding with the Project for a period of at least 10 days, then the Contractor’s Construction Schedule and the dates in Section 5.11 (Construction Delays) and clauses (f), (g) and (h) of Section 16.8 (Termination Events) shall be adjusted commensurately to the period during which the Contractor is prevented by the Relief Event from proceeding with the Project; (c) no non-performance of any obligation of the Contractor 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 Relief Event; (d) the Traffic Availability Target Date shall be adjusted, subject to the Contractor’s obligation to take reasonable steps to mitigate the delay; (e) if the Contractor anticipates that the Relief 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; (f) if the Relief Event, when aggregated with the effect of any other Relief Event or Relief Events occurring in the same calendar year and not previously claimed for by the Contractor increases the Contractor’s cost of carrying out the Project by at least Twenty Five Thousand Dollars ($25,000.00), then subject to Section 13.4 (Procedure on Relief) and subject in every case to the Contractor’s obligation to take reasonable steps to mitigate the increase in its costs, the Province shall, as soon as practicable following receipt from the Contractor of appropriate documentation establishing the amount payable, pay to the Contractor, without duplication: (i) if the Relief Event is a breach by the Province of any of its obligations under this Agreement, the amount payable under the indemnity in Section 16.2 (Province’s Indemnity); (ii) if the effect of the Relief Event is tantamount to a change in the Project Requirements, the amount that would have been payable by the Province if the change in the Project Requirements had been a Change Order governed by Section 7.1 (Modification of Project Requirements) and requested by the Province pursuant to a Change Order Directive; and (iii) in any other case, the Contractor’s reasonable damages; and (g) no damages are payable under this Section 13.3 (Relief Event During Construction Period) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11 (Insurance, Damage and Destruction)) by insurance maintained by or for the benefit of the Contractor.
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Samples: Agreement to Design and Build
Relief Event During Construction Period. If a Relief Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as the Contractor is prevented by the Relief Event from performing any obligation under this Agreement, the Contractor is relieved from any liability or consequence under this Agreement arising from its delay in performing that obligation;
(b) if the Relief Event wholly or substantially prevents the Contractor from proceeding with the Project a School for a period of at least 10 days, or if multiple Relief Events when taken together wholly or substantially prevent the Contractor from proceeding with that School for a period of at least 10 days and each such Relief Event wholly or substantially prevents the Contractor from proceeding with that School for a period of at least two days (where all such periods of delay are 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 (Construction Delays) and the date specified for adjustment in clauses (fg), (gh), (i) and (hj) of Section 16.8 (Termination Events) shall be adjusted adjusted, in respect only of that School, commensurately to the period during which the Contractor is prevented by the Relief Event from proceeding with the Projectthat School;
(c) no non-performance of any obligation of the Contractor 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 Relief Event;
(d) the Traffic Total Availability Target Date shall not be adjusted, but if a School would have achieved School Availability on or prior to the Total Availability Target Date but for the Relief Event, then the Province shall, in respect only of delay caused directly by the Relief Event, pay to the Contractor its damages resulting from School Availability at that School not being achieved on or prior to the Total Availability Target Date as a result of the Relief Event, provided that such damages and such payment shall, in respect of damages resulting from delayed payment of School Capital Payments, Adjusted School Capital Payments or the 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 Relief 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 Relief 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 Relief 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 Relief 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 Relief 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 Relief 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 Relief Event causing a School that would have achieved School Availability on or prior to the Total Availability Target Date but for the Relief 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 Relief 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 Relief 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 Relief Event not occurred;
(ii) if Total Availability would not have been achieved by the Total Availability Target Date notwithstanding the occurrence of the Relief 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 Relief 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 Relief 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 Relief Event calculated from but excluding the date that Total Availability would have been achieved but for the Schools affected by the Relief Event to and including the earlier of the revised date that School Availability is scheduled to be achieved as a result of the Relief Event and the date that School
(C) 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 Relief 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 Relief 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 Relief 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 Relief 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 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 Relief Event causing a School that would have achieved School Availability on or prior to the Total Availability Target Date but for the Relief 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 Relief 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 Relief 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 Adjusted School Capital Payments would have been payable had the Relief Event not occurred; subject to the Contractor’s obligation to take reasonable steps to mitigate the delaydelay 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 Relief Event, in which case Section 13.3(d)(i)(C) and Section 13.3(d)(ii)(D) shall not apply;
(f) if the Contractor anticipates that the Relief Event will delay Traffic Total 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;
(fg) if the Relief Event, when aggregated with the effect of any other Relief Event or Relief Events occurring in during the same calendar year Construction Period and not previously claimed for by the Contractor increases the Contractor’s cost of carrying out the Project by at least Twenty Five Thousand Dollars ($25,000.00)50,000, then subject to Section 13.4 (Procedure on Relief) 13.5 and subject in every case to the Contractor’s obligation to take reasonable steps to mitigate the increase in its costs, and without duplicating any amount payable under clause (d), the Province shall, as soon as practicable following receipt from the Contractor of appropriate documentation establishing the amount payable, pay to the Contractor, without duplication:
(i) if the Relief Event is a breach by the Province of any of its obligations under this Agreement, the amount payable under the indemnity in Section 16.2 (Province’s Indemnity)16.2;
(ii) if the effect of the Relief Event is tantamount to a change in the Project Requirements, the amount that would have been payable by the Province if the change in the Project Requirements had been a Change Order governed by Section 7.1 (Modification of Project Requirements) and requested by the Province pursuant to a Change Order Directive; and
(iii) in any other case, the Contractor’s reasonable damages; and;
(gh) no damages are payable under this Section 13.3 (Relief Event During Construction Period) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11 (Insurance, Damage and Destruction)11) by insurance maintained by or for the benefit of the Contractor;
(i) if the Relief Event occurs during the School M&R Period, then Sections 13.4(b) and 13.4(d) shall apply; and
(j) 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 Relief 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 Relief 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.
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Relief Event During Construction Period. If a Relief Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as the Contractor is prevented by the Relief Event from performing any obligation under this Agreement, the Contractor is relieved from any liability or consequence under this Agreement arising from its delay in performing that obligation;
(b) if the Relief Event wholly or substantially prevents the Contractor from proceeding with the Project for a period of at least 10 days, then the Contractor’s Construction Schedule and the dates in Section 5.11 (Construction Delays) and clauses (fg), (gh) and (hi) of Section 16.8 (Termination Events) shall be adjusted commensurately to the period during which the Contractor is prevented by the Relief Event from proceeding with the Project;
(c) no non-performance of any obligation of the Contractor 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 Relief Event;
(d) the Traffic Availability Target Date shall not be adjusted, but if by reason of the Relief 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 Relief Event (and shall, from and after the Traffic Availability Target Date, make advance payment 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 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 delaydelay and to mitigate its damages;
(e) if the Contractor anticipates that the Relief 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;
(f) if the Relief Event, when aggregated with the effect of any other Relief Event or Relief Events occurring in the same calendar year and not previously claimed for by the Contractor increases the Contractor’s cost of carrying out the Project by at least Twenty Five Thousand Dollars ($25,000.00)25,000, then subject to Section 13.4 (Procedure on Relief) 13.5 and subject in every case to the Contractor’s obligation to take reasonable steps to mitigate the increase in its costs, and without duplicating any amount payable under clause (d), the Province shall, as soon as practicable following receipt from the Contractor of appropriate documentation establishing the amount payable, pay to the Contractor, without duplication:
(i) if the Relief Event is a breach by the Province of any of its obligations under this Agreement, the amount payable under the indemnity in Section 16.2 (Province’s Indemnity)16.2;
(ii) if the effect of the Relief Event is tantamount to a change in the Project Requirements, the amount that would have been payable by the Province if the change in the Project Requirements had been a Change Order governed by Section 7.1 (Modification of Project Requirements) and requested by the Province pursuant to a Change Order Directive; and
(iii) in any other case, the Contractor’s reasonable damages; and;
(g) no damages are payable under this Section 13.3 (Relief Event During Construction Period) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11 (Insurance, Damage and Destruction)11) by insurance maintained by or for the benefit of the Contractor; and
(h) if one or more Relief 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
Relief Event During Construction Period. If a Relief Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as the Contractor is prevented by the Relief Event from performing any obligation under this Agreement, the Contractor is relieved from any liability or consequence under this Agreement arising from its delay in performing that obligation;
(b) if the Relief Event wholly or substantially prevents the Contractor from proceeding with the PNI Project or the Project for a period of at least 10 days, or if multiple Relief Events when taken together wholly or substantially prevent the Contractor from proceeding with the PNI Project or the Project for a period of at least 10 days and each such Relief Event wholly or substantially prevents the Contractor from proceeding with the PNI Project or the Project for a period of at least two days, then the Contractor’s Construction Schedule and the dates in Section 5.11 (Construction Delays) and clauses (fg), (g) h), (h.1), (i), and (hi.1) of Section 16.8 (Termination Events) shall be adjusted commensurately to the period during which the Contractor is prevented by the Relief Event from proceeding with the PNI Project or the Project;
(c) no non-performance of any obligation of the Contractor 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 Relief Event;
(d) the Traffic Availability Target Date Date(s) shall not be adjusted, but if by reason of the Relief 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 Relief Event (and shall, from and after the applicable Traffic Availability Target Date, make advance payment 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 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 delaydelay 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) if the Contractor anticipates that the Relief 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;
(f) if the Relief Event, when aggregated with the effect of any other Relief Event or Relief Events occurring in the same calendar year and not previously claimed for by the Contractor increases the Contractor’s cost of carrying out the Project by at least Twenty Five Thousand Dollars ($25,000.00)100,000, then subject to Section 13.4 (Procedure on Relief) 13.5 and subject in every case to the Contractor’s obligation to take reasonable steps to mitigate the increase in its costs, and without duplicating any amount payable under clause (d), the Province shall, as soon as practicable following receipt from the Contractor of appropriate documentation establishing the amount payable, pay to the Contractor, without duplication:
(i) if the Relief Event is a breach by the Province of any of its obligations under this Agreement, the amount payable under the indemnity in Section 16.2 (Province’s Indemnity)16.2;
(ii) if the effect of the Relief Event is tantamount to a change in the Project Requirements, the amount that would have been payable by the Province if the change in the Project Requirements had been a Change Order governed by Section 7.1 (Modification of Project Requirements) and requested by the Province pursuant to a Change Order Directive; and
(iii) in any other case, the Contractor’s reasonable damages; and;
(g) no damages are payable under this Section 13.3 (Relief Event During Construction Period) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11 (Insurance, Damage and Destruction)11) by insurance maintained by or for the benefit of the Contractor;
(h) if one or more Relief 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 Schedule 14 (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; and
(h.1) if one or more Relief 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 Schedule 14 (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.
Appears in 1 contract
Relief Event During Construction Period. If a Relief Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as the Contractor is prevented by the Relief Event from performing any obligation under this Agreement, the Contractor is relieved from any liability or consequence under this Agreement arising from its delay in performing that obligation;
(b) if the Relief Event wholly or substantially prevents the Contractor from proceeding with the Project for a period of at least 10 days, or if multiple Relief Events when taken together wholly or substantially prevent the Contractor from proceeding with the Project for a period of at least 10 days and each such Relief Event wholly or substantially prevents the Contractor from proceeding with the Project for a period of at least two days, then the Contractor’s Construction Schedule and the dates in Section 5.11 (Construction Delays) and clauses (fg), (gh) and (hi) of Section 16.8 (Termination Events) shall be adjusted commensurately to the period during which the Contractor is prevented by the Relief Event from proceeding with the Project;
(c) no non-performance of any obligation of the Contractor 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 Relief Event;
(d) the Traffic Availability Target Date shall not be adjusted, but if by reason of the Relief 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 Relief Event (and shall, from and after the Traffic Availability Target Date, make advance payment 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 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 delaydelay 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) if the Contractor anticipates that the Relief 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;
(f) if the Relief Event, when aggregated with the effect of any other Relief Event or Relief Events occurring in the same calendar year and not previously claimed for by the Contractor increases the Contractor’s cost of carrying out the Project by at least Twenty Five Thousand Dollars ($25,000.00)50,000, then subject to Section 13.4 (Procedure on Relief) 13.5 and subject in every case to the Contractor’s obligation to take reasonable steps to mitigate the increase in its costs, and without duplicating any amount payable under clause (d), the Province shall, as soon as practicable following receipt from the Contractor of appropriate documentation establishing the amount payable, pay to the Contractor, without duplication:
(i) if the Relief Event is a breach by the Province of any of its obligations under this Agreement, the amount payable under the indemnity in Section 16.2 (Province’s Indemnity)16.2;
(ii) if the effect of the Relief Event is tantamount to a change in the Project Requirements, the amount that would have been payable by the Province if the change in the Project Requirements had been a Change Order governed by Section 7.1 (Modification of Project Requirements) and requested by the Province pursuant to a Change Order Directive; and
(iii) in any other case, the Contractor’s reasonable damages; and;
(g) no damages are payable under this Section 13.3 (Relief Event During Construction Period) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11 (Insurance, Damage and Destruction)11) by insurance maintained by or for the benefit of the Contractor; and
(h) if one or more Relief 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
Relief Event During Construction Period. If a Relief Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as the Contractor is prevented by the Relief Event from performing any obligation under this Agreement, the Contractor is relieved from any liability or consequence under this Agreement arising from its delay in performing that obligation;
(b) if the Relief Event wholly or substantially prevents the Contractor from proceeding with the Project for a period of at least 10 days, or if multiple Relief Events when taken together wholly or substantially prevent the Contractor from proceeding with the Project for a period of at least 10 days and each such Relief Event wholly or substantially prevents the Contractor from proceeding with the Project for a period of at least two days, then the Contractor’s Construction Schedule and the dates in Section 5.11 (Construction Delays) and clauses (fg), (gh) and (hi) of Section 16.8 (Termination Events) shall be adjusted commensurately to the period during which the Contractor is prevented by the Relief Event from proceeding with the Project;
(c) no non-performance of any obligation of the Contractor 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 Relief Event;
(d) the Traffic Availability Target Date shall not be adjusted, but if by reason of the Relief 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 Relief Event (and shall, from and after the Traffic Availability Target Date, make advance payment 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 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 delaydelay 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) if the Contractor anticipates that the Relief 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;
(f) if the Relief Event, when aggregated with the effect of any other Relief Event or Relief Events occurring in the same calendar year and not previously claimed for by the Contractor increases the Contractor’s cost of carrying out the Project by at least Twenty Five Thousand Dollars ($25,000.00)25,000, then subject to Section 13.4 (Procedure on Relief) 13.5 and subject in every case to the Contractor’s obligation to take reasonable steps to mitigate the increase in its costs, and without duplicating any amount payable under clause (d), the Province shall, as soon as practicable following receipt from the Contractor of appropriate documentation establishing the amount payable, pay to the Contractor, without duplication:
(i) if the Relief Event is a breach by the Province of any of its obligations under this Agreement, the amount payable under the indemnity in Section 16.2 (Province’s Indemnity)16.2;
(ii) if the effect of the Relief Event is tantamount to a change in the Project Requirements, the amount that would have been payable by the Province if the change in the Project Requirements had been a Change Order governed by Section 7.1 (Modification of Project Requirements) and requested by the Province pursuant to a Change Order Directive; and
(iii) in any other case, the Contractor’s reasonable damages; and;
(g) no damages are payable under this Section 13.3 (Relief Event During Construction Period) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11 (Insurance, Damage and Destruction)11) by insurance maintained by or for the benefit of the Contractor; and
(h) if one or more Relief 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
Samples: Dbfo Agreement
Relief Event During Construction Period. If a Relief Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as the Contractor is prevented by the Relief Event from performing any obligation under this Agreement, the Contractor is relieved from any liability or consequence under this Agreement arising from its delay in performing that obligation;
(b) if the Relief Event wholly or substantially prevents the Contractor from proceeding with the Project for a period of at least 10 days, then the Contractor’s Construction Schedule and the dates in Section 5.11 (Construction Delays) and clauses (fg), (gh) and (hi) of Section 16.8 (Termination Events) shall be adjusted commensurately to the period during which the Contractor is prevented by the Relief Event from proceeding with the Project;
(c) no non-performance of any obligation of the Contractor 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 Relief Event;
(d) the Traffic Availability Target Date shall not be adjusted, but if by reason of the Relief 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 Relief Event (and shall, from and after the Traffic Availability Target Date, make advance payment 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 delaydelay and to mitigate its damages;
(ed) if the Contractor anticipates that the Relief 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;
(fe) if the Relief Event, when aggregated with the effect of any other Relief Event or Relief Events occurring in the same calendar year and not previously claimed for by the Contractor increases the Contractor’s cost of carrying out the Project by at least Twenty Five Thousand Dollars ($25,000.00)25,000, then subject to Section 13.4 (Procedure on Relief) 13.5 and subject in every case to the Contractor’s obligation to take reasonable steps to mitigate the increase in its costs, and without duplicating any amount payable under clause (c), the Province shall, as soon as practicable following receipt from the Contractor of appropriate documentation establishing the amount payable, pay to the Contractor, without duplication:
(i) if the Relief Event is a breach by the Province of any of its obligations under this Agreement, the amount payable under the indemnity in Section 16.2 (Province’s Indemnity)16.2;
(ii) if the effect of the Relief Event is tantamount to a change in the Project Requirements, the amount that would have been payable by the Province if the change in the Project Requirements had been a Change Order governed by Section 7.1 (Modification of Project Requirements) and requested by the Province pursuant to a Change Order Directive7.1; and
(iii) in any other case, the Contractor’s reasonable damages; and;
(gf) no damages are payable under this Section 13.3 (Relief Event During Construction Period) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11 (Insurance, Damage and Destruction)11) by insurance maintained by or for the benefit of the Contractor; and
(g) if one or more Relief 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 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.
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Relief Event During Construction Period. If a Relief Event occurs during the Construction Period, then notwithstanding any other provision of this Agreement:
(a) to the extent that and for so long as the Contractor is prevented by the Relief Event from performing any obligation under this Agreement, the Contractor is relieved from any liability or consequence under this Agreement arising from its delay in performing that obligation;
(b) if the Relief Event wholly or substantially prevents the Contractor from proceeding with the Project a School for a period of at least 10 days, or if multiple Relief Events when taken together wholly or substantially prevent the Contractor from proceeding with that School for a period of at least 10 days and each such Relief Event wholly or substantially prevents the Contractor from proceeding with that School for a period of at least two days (where all such periods of delay are 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 (Construction Delays) 5.11, and the date specified for adjustment in clauses (fg), (gh), (i) and (hj) of Section 16.8 (Termination Events) shall be adjusted adjusted, in respect only of that School, commensurately to the period during which the Contractor is prevented by the Relief Event from proceeding with the Projectthat School;
(c) no non-performance of any obligation of the Contractor 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 Relief Event;
(d) the Traffic Total Availability Target Date shall not be adjusted, but if a School would have achieved School Availability on or prior to the Total Availability Target Date but for the Relief Event, then the Province shall, in respect only of delay caused directly by the Relief Event, pay to the Contractor its damages resulting from School Availability at that School not being achieved on or prior to the Total Availability Target Date as a result of the Relief Event, provided that such damages and such payment shall, in respect of damages resulting from delayed payment of School Capital Payments or Adjusted School Capital Payments, 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 Relief 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 Relief 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 Relief 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 Relief 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 Relief 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 Relief 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 Relief Event not occurred;
(ii) if Total Availability would not have been achieved by the Total Availability Target Date notwithstanding the occurrence of the Relief 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 Relief 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 Relief 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 Relief Event calculated from but excluding the date that Total Availability would have been achieved but for the Schools affected by the Relief Event to and including the earlier of the revised date that School Availability is scheduled to be achieved as a result of the Relief 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 for those Schools that would have achieved School Availability on or prior to the Total Availability Target Date but for the Relief 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 Relief 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 Relief 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 Relief 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 Adjusted School Capital Payments would have been payable had the Relief Event not occurred; subject to the Contractor’s obligation to take reasonable steps to mitigate the delaydelay and to mitigate its damages;
(e) if the Contractor anticipates that the Relief Event will delay Traffic Total 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;
(f) if the Relief Event, when aggregated with the effect of any other Relief Event or Relief Events occurring in during the same calendar year Construction Period and not previously claimed for by the Contractor increases the Contractor’s cost of carrying out the Project by at least Twenty Five Thousand Dollars ($25,000.00)50,000, then subject to Section 13.4 (Procedure on Relief) 13.5 and subject in every case to the Contractor’s obligation to take reasonable steps to mitigate the increase in its costs, and without duplicating any amount payable under clause (d), the Province shall, as soon as practicable following receipt from the Contractor of appropriate documentation establishing the amount payable, pay to the Contractor, without duplication:
(i) if the Relief Event is a breach by the Province of any of its obligations under this Agreement, the amount payable under the indemnity in Section 16.2 (Province’s Indemnity)16.2;
(ii) if the effect of the Relief Event is tantamount to a change in the Project Requirements, the amount that would have been payable by the Province if the change in the Project Requirements had been a Change Order governed by Section 7.1 (Modification of Project Requirements) and requested by the Province pursuant to a Change Order Directive; and
(iii) in any other case, the Contractor’s reasonable damages; and;
(g) no damages are payable under this Section 13.3 (Relief Event During Construction Period) to the extent that the damages are covered (or would have been covered but for the Contractor’s failure to comply with Section 11 (Insurance, Damage and Destruction)11) by insurance maintained by or for the benefit of the Contractor;
(h) if the Relief Event occurs during the School M&R Period, then Sections 13.4(b) and 13.4(d) shall apply; and
(i) 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 Relief 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 Relief 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.
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