Repair of Damage - Construction Period. The Contractor shall repair all damage to the New Infrastructure during the Construction Period, of whatever nature and however caused, excepting only: damage caused by a Force Majeure Event (in which case Sections 12.1 and 12.3 apply); Environmental Damage or Degradation described in Section 4.9(e)(i) or (ii) (in which case Section 4.9(e) applies); or damage caused by the Province or its agents or contractors or subcontractors (except the Contractor and its subcontractors) or others for whom the Province is legally responsible. If damage to the New Infrastructure during the Construction Period causes Traffic Availability to be delayed beyond the Traffic Availability Target Date, then if: (a) the damage was not caused by the Contractor or its agents or subcontractors or others for whom the Contractor is legally responsible; (b) the Contractor takes all reasonable action to diligently repair the damage and mitigate the delay; and (c) the Contractor maintained any insurance required by Section 11.1 that is relevant to the damage; the Contractor’s Construction Schedule and the dates in Sections 5.11 and clauses (g), (h) and (i) of Section 16.8 shall be adjusted commensurately to the period during which the Contractor is taking all reasonable action to diligently repair the damage and mitigate the delay, and the Province will, to the extent the loss occasioned to the Contractor by the delay is not insured against, compensate the Contractor for the loss occasioned by Traffic Availability being delayed beyond the Traffic Availability Target Date, in which event: (d) the Province shall, from and after the Traffic Availability Target Date, make advance payment on account of such loss; and (e) each advance payment shall be in the amount of the Capital Payment that would have been payable by the Province had Traffic Availability occurred on the Traffic Availability Target Date.
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Repair of Damage - Construction Period. The Contractor shall repair all damage to the New Infrastructure during the Construction Period, of whatever nature and however caused, excepting only: damage caused by a Force Majeure Event (in which case Sections 12.1 and 12.3 apply); Environmental Damage or Degradation described in Section 4.9(e)(i) or (ii) (in which case Section 4.9(e) applies); or damage caused by the Province or its agents or contractors or subcontractors (except the Contractor and its subcontractors) or others those for whom the Province is legally responsible. If damage to the New Infrastructure during the Construction Period causes Traffic Availability to be delayed beyond the Traffic Availability Target Date, then if:
(a) the damage was not caused by the Contractor or its agents or subcontractors or others for whom the Contractor is legally responsible;
(b) the Contractor takes all reasonable action to diligently repair the damage and mitigate the delay; and
(c) the Contractor maintained any insurance required by Section 11.1 that is relevant to the damage; the Contractor’s Construction Schedule and the dates in Sections 5.11 and clauses (g), (h) and (i) of Section 16.8 shall be adjusted commensurately to the period during which the Contractor is taking all reasonable action to diligently repair the damage and mitigate the delay, and the Province will, to the extent the loss damages occasioned to the Contractor by the delay is not insured against, compensate the Contractor for the loss damages occasioned by Traffic Availability being delayed beyond the Traffic Availability Target Date, in which event:
(d) the Traffic Availability Target Date shall not be adjusted, but the Province shall upon Traffic Availability pay to the Contractor its damages resulting from Traffic Availability being delayed beyond the Traffic Availability Target Date (and shall, from and after the Traffic Availability Target Date, make advance payment to the Contractor on account of such loss; and
(e) each 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 shall be in the will include at least an amount of the equal to each Capital Payment that would have been payable by the Province had Traffic Availability occurred on been achieved). 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.
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Samples: Dbfo Agreement
Repair of Damage - Construction Period. The Contractor shall repair all damage to the Priority New Infrastructure during the PNI Construction Period, of whatever nature and however caused, excepting only: damage caused by a Force Majeure Event (in which case Sections 12.1 and 12.3 apply); Environmental Damage or Degradation described in Section 4.9(e)(i) or (ii) (in which case Section 4.9(e) applies); or damage caused by the Province or its agents or contractors or subcontractors (except the Contractor and its subcontractors) or others ), those for whom the Province is legally responsibleresponsible or caused by any person exercising rights under an Identified Encumbrance, a grant contemplated by the third paragraph of Section 4.1, Future Utilities (as defined in Section 4.8), or a consent contemplated by the last sentence of Section 4.14. If damage to the Priority New Infrastructure during the PNI Construction Period causes PNI Traffic Availability to be delayed beyond the PNI Traffic Availability Target Date or causes RNI Traffic Availability to be delayed beyond the RNI Traffic Availability Target Date, then if:
(a) the damage was not caused by the Contractor or its agents or subcontractors or others for whom the Contractor is legally responsible;
(b) the Contractor takes all reasonable action to diligently repair the damage and mitigate the delay; and
(c) the Contractor maintained any insurance required by Section 11.1 that is relevant to the damage; the Contractor’s Construction Schedule and the dates in Sections 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 taking all reasonable action to diligently repair the damage and mitigate the delay, and the Province will, to the extent the loss damages occasioned to the Contractor by the delay is not insured against, compensate the Contractor for the loss damages occasioned by PNI Traffic Availability being delayed beyond the PNI Traffic Availability Target Date or by RNI Traffic Availability being delayed beyond the RNI Traffic Availability Target Date, in which event:
(d) the PNI Traffic Availability Target Date or the RNI Traffic Availability Target Date, as applicable, shall not be adjusted, but 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 (and shall, from and after the applicable Traffic Availability Target Date, make advance payment to the Contractor on account of such lossdamages, 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 the RNI Capital Payment, as applicable, that would have been payable had whichever is applicable of PNI Traffic Availability or RNI Traffic Availability been achieved). 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. The Contractor shall repair all damage to the Remaining New Infrastructure during the Construction Period, of whatever nature and however caused, excepting only: damage caused by a Force Majeure Event (in which case Sections 12.1 and 12.3 apply); Environmental Damage or Degradation described in Section 4.9(e)(i) or (ii) (in which case Section 4.9(e) applies); or damage caused by the Province or its agents or contractors or subcontractors (except the Contractor and its subcontractors), those for whom the Province is legally responsible or caused by any person exercising rights under an Identified Encumbrance, a grant contemplated by the third paragraph of Section 4.1, Future Utilities (as defined in Section 4.8), or a consent contemplated by the last sentence of Section 4.14. If damage to the Remaining New Infrastructure during the Construction Period causes RNI Traffic Availability to be delayed beyond the RNI Traffic Availability Target Date, then if:
(e) the damage was not caused by the Contractor or its agents or subcontractors or others for whom the Contractor is legally responsible;
(f) the Contractor takes all reasonable action to diligently repair the damage and mitigate the delay; and
(eg) each the Contractor maintained any insurance required by Section 11.1 that is relevant to the damage; the Contractor’s Construction Schedule and the dates in Sections 5.11 and clauses (h.1) and (i.1) of Section 16.8 shall be adjusted commensurately to the period during which the Contractor is taking all reasonable action to diligently repair the damage and mitigate the delay, and the Province will, to the extent the damages occasioned to the Contractor by the delay is not insured against, compensate the Contractor for the damages occasioned by RNI Traffic Availability being delayed beyond the RNI Traffic Availability Target Date, in which event:
(h) the RNI Traffic Availability Target Date shall not be adjusted, but the Province shall upon RNI Traffic Availability pay to the Contractor its damages resulting from RNI Traffic Availability being delayed beyond the RNI Traffic Availability Target Date (and shall, from and after the RNI Traffic Availability Target Date, make advance payment shall to the Contractor on account of such damages, to the extent such damages can reasonably be in determined prior to RNI Traffic Availability, it being mutually anticipated by the parties that such damages and such advance payment will include at least an amount of the equal to each RNI Capital Payment that would have been payable by the Province had RNI Traffic Availability occurred on been achieved). Notwithstanding that advance payment to the Contractor of such damages will not start until the RNI Traffic Availability Target Date, if prior to the RNI 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 RNI 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. During the PNI Construction Period the Province will bear the risk of damage to the Existing Infrastructure on the Lands applicable to the Priority New Infrastructure and during the Construction Period the Province will bear the risk of damage to the Existing Infrastructure on the Lands applicable to the Remaining New Infrastructure, caused by:
(i) any person other than the Contractor, its agents or subcontractors or others for whom the Contractor is legally responsible; and
(j) any other incident or discrete event, including a tornado or earthquake or weather events, and excluding:
(i) any damage to the extent caused or contributed to by any failure by the Contractor to meet the O&M Requirements; and
(ii) damage caused by a Force Majeure Event (in which case Sections 12.1 12.2(d) apply); (collectively, “CP Damage Events”). For greater clarity, the subject matter covered in section 400.4.7.5 (Litter and Graffiti Clean Up) of Schedule 18, including without limitation litter and graffiti, are not considered CP Damage Events. Upon the occurrence of a CP Damage Event, the Province is obligated to repair the damage, and to that end the Province shall direct the Contractor to repair the damage, and the Contractor shall repair the damage and invoice the Province the amount to which the Contractor would be entitled if the work were a Change Order Directive governed by Schedule 1 (Change Orders), provided that if the Province anticipates that the cost of repairs necessitated by a particular CP Damage Event will exceed $25,000, the Province may instead tender the repair work, in which case:
(k) the Province shall ensure that the person contracted to repair the damage takes all commercially reasonable measures to minimize interference with or disruption to the Contractor’s carrying out of the O&M or the O&M Requirements; and if the repair work causes damage to the Lands or any other part of the New Infrastructure or damage to the Existing Infrastructure or if the repair work interferes with or disrupts the Contractor’s carrying out of the O&M or the O&M Requirements, such interference or disruption shall, subject to Section 13.2, constitute a Relief Event under Section 13.2(k);
(l) for all purposes related to the Handback Requirements, the Contractor shall not be obligated to make good any deficiency or defect in the repair work; and
(m) if the repair work materially and adversely alters the risk profile of the O&M (including, without limitation, increased exposure to Payment Adjustments) or materially and adversely alters the risk profile of the Handback Requirements as applied to the repair work, the Contractor is entitled to reasonable compensation (on an ongoing basis) therefor from the Province.
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Repair of Damage - Construction Period. The Contractor shall repair all damage to the New Infrastructure during the Construction Period, of whatever nature and however caused, excepting only: damage caused by a Force Majeure Event (in which case Sections 12.1 and 12.3 apply); Environmental Damage or Degradation described in Section 4.9(e)(i) or (ii) (in which case Section 4.9(e) applies); or damage caused by the Province or its agents or contractors or subcontractors (except the Contractor and its subcontractors) or others ), those for whom the Province is legally responsibleresponsible or caused by any person exercising rights under an Identified Encumbrance, a grant contemplated by the third paragraph of Section 4.1, Future Utilities (as defined in Section 4.8), or a consent contemplated by the last sentence of Section 4.14. If damage to the New Infrastructure during the Construction Period causes Traffic Availability to be delayed beyond the Traffic Availability Target Date, then if:
(a) the damage was not caused by the Contractor or its agents or subcontractors or others for whom the Contractor is legally responsible;
(b) the Contractor takes all reasonable action to diligently repair the damage and mitigate the delay; and
(c) the Contractor maintained any insurance required by Section 11.1 that is relevant to the damage; the Contractor’s Construction Schedule and the dates in Sections 5.11 and clauses (g), (h) and (i) of Section 16.8 shall be adjusted commensurately to the period during which the Contractor is taking all reasonable action to diligently repair the damage and mitigate the delay, and the Province will, to the extent the loss damages occasioned to the Contractor by the delay is not insured against, compensate the Contractor for the loss damages occasioned by Traffic Availability being delayed beyond the Traffic Availability Target Date, in which event:
(d) the Traffic Availability Target Date shall not be adjusted, but the Province shall upon Traffic Availability pay to the Contractor its damages resulting from Traffic Availability being delayed beyond the Traffic Availability Target Date (and shall, from and after the Traffic Availability Target Date, make advance payment to the Contractor on account of such loss; and
(e) each 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 shall be in the will include at least an amount of the equal to each Capital Payment that would have been payable by the Province had Traffic Availability occurred on been achieved). 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. During the Construction Period the Province will bear the risk of damage to the Existing Infrastructure, caused by:
(e) any person other than the Contractor, its agents or subcontractors or others for whom the Contractor is legally responsible; and
(f) any other incident or discrete event, including a tornado or earthquake or weather events, and excluding:
(i) any damage to the extent caused or contributed to by any failure by the Contractor to meet the O&M Requirements; and
(ii) damage caused by a Force Majeure Event (in which case Sections 12.1 12.2(d) apply); (collectively, “CP Damage Events”). For greater clarity, the subject matter covered in section 400.4.7.5 (Litter and Graffiti Clean Up) of Schedule 18, including without limitation litter and graffiti, are not considered CP Damage Events. Upon the occurrence of a CP Damage Event, the Province is obligated to repair the damage, and to that end the Province shall direct the Contractor to repair the damage, and the Contractor shall repair the damage and invoice the Province the amount to which the Contractor would be entitled if the work were a Change Order Directive governed by Schedule 1 (Change Orders), provided that if the Province anticipates that the cost of repairs necessitated by a particular CP Damage Event will exceed $25,000, the Province may instead tender the repair work, in which case:
(g) the Province shall ensure that the person contracted to repair the damage takes all commercially reasonable measures to minimize interference with or disruption to the Contractor’s carrying out of the O&M or the O&M Requirements; and if the repair work causes damage to the Lands or any other part of the New Infrastructure or damage to the Existing Infrastructure or if the repair work interferes with or disrupts the Contractor’s carrying out of the O&M or the O&M Requirements, such interference or disruption shall, subject to Section 13.2, constitute a Relief Event under Section 13.2(k);
(h) for all purposes related to the Handback Requirements, the Contractor shall not be obligated to make good any deficiency or defect in the repair work; and
(i) if the repair work materially and adversely alters the risk profile of the O&M (including, without limitation, increased exposure to Payment Adjustments) or materially and adversely alters the risk profile of the Handback Requirements as applied to the repair work, the Contractor is entitled to reasonable compensation (on an ongoing basis) therefore from the Province.
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Repair of Damage - Construction Period. The Contractor shall repair all damage to the New Existing Facilities and to the Infrastructure during the Construction Period, of whatever nature and however caused, excepting only: damage caused by a Force Majeure Event (in which case Sections 12.1 and 12.3 apply); Environmental Damage or Degradation described in Section 4.9(e)(i4.7(e)(i) or (ii) (in which case Section 4.9(e4.7(e) applies); or damage caused by the Province or its agents or contractors or subcontractors (except the Contractor and its subcontractors) or others ), those for whom the Province is legally responsibleresponsible or caused by any person exercising rights under an Identified Encumbrance, a grant contemplated by the third paragraph of Section 4.1, Future Utilities (as defined in Section 4.6), or a consent contemplated by the last sentence of Section 4.12. If damage to the New Infrastructure or to the Existing Facilities during the Construction Period causes Traffic Availability to be delayed beyond the Traffic Availability Target Date, then if:
(a) the damage was not caused by the Contractor or its agents or subcontractors or others for whom the Contractor is legally responsible;
(b) the Contractor takes all reasonable action to diligently repair the damage and mitigate the delay; and
(c) the Contractor maintained any insurance required by Section 11.1 that is relevant to the damage; the Contractor’s Construction Schedule and the dates in Sections 5.11 and clauses (g), (h) and (i) of Section 16.8 shall be adjusted commensurately to the period during which the Contractor is taking all reasonable action to diligently repair the damage and mitigate the delay, and the Province will, to the extent the loss damages occasioned to the Contractor by the delay is not insured against, compensate the Contractor for the loss damages occasioned by Traffic Availability being delayed beyond the Traffic Availability Target Date, in which event:
(d) the Availability Target Date shall not be adjusted, but the Province shall upon Availability pay to the Contractor its damages resulting from Availability being delayed beyond the Availability Target Date (and shall, from and after the Traffic Availability Target Date, make advance payment to the Contractor on account of such loss; and
(e) each damages, to the extent such damages can reasonably be determined prior to Availability, it being mutually anticipated by the parties that such damages and such advance payment shall be in the will include at least an amount of the equal to each Capital Payment that would have been payable by had Availability been achieved). Notwithstanding that advance payment to the Province had Traffic Availability occurred on Contractor of such damages will not start until the Traffic 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.
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