Common use of Supervening Events Clause in Contracts

Supervening Events. (a) If, in the case of: (i) Project Co, a Compensation Event or Relief Event occurs; or (ii) either the Province or Project Co, a Force Majeure Event occurs, then if and to the extent that such event interferes adversely with, or causes a failure of, or prevents, the performance of, in the case of Project Co, the Project Work or, in the case of the Province, any obligation under this Agreement, then, subject to Section 8.1(b), the affected or entitled party (the “Applicant”) may apply for relief from its obligations, apply for extensions of time, claim compensation and/or claim a termination right under this Agreement to the extent provided in this Part 8. (b) Notwithstanding any other provision of this Part 8, an Applicant shall only be entitled to relief from its obligations, extensions of time, compensation and/or a termination right under this Agreement in accordance with this Part 8 in respect of a Supervening Event: (i) in the case of a claim of any Supervening Event by Project Co other than a No Threshold Compensation Event, if the interference with, failure of or prevention of the Project Work referred to in Section 8.1(a) arising from such Supervening Event is in respect of either or both of the Design and the Construction, and such Supervening Event is either: (A) one of the first four Supervening Events claimed by Project Co and determined in accordance with this Part 8 to have occurred in any Contract Year from the Effective Date until the Total Completion Date (or portion of such Contract Year in the case of the first and last Contract Years which commence during such period), each of which has resulted in either or both of the following: (1) a Change in Costs in respect of the Design or the Construction of greater than $100,000; or (2) a delay of three or more days (or, in the case only of the Compensation Event referred to in paragraph (f) of the definition of Compensation Event in Section 1.1 [Definitions] of Schedule 1, seven or more days) to the occurrence of any or all of the SC1 Substantial Completion Date, the SC2 Substantial Completion Date, the SC3 Substantial Completion Date or the Total Completion Date; or (B) claimed by Project Co in a Contract Year (or portion thereof in the case of the first and last Contract Years commencing in the period referred to in Section 8.1(b)(i)(A)) after four other Supervening Events meeting the requirements of this Part 8, including Section 8.1(b)(i)(A), have occurred; (ii) if and to the extent that such Supervening Event is not caused by, could not reasonably have been prevented by and is beyond the reasonable control of the Applicant or any person for whom the Applicant is in law responsible; (iii) in the case of any claim of a Supervening Event by Project Co, if and to the extent that such Supervening Event and/or the effect thereof is not required by the Project Requirements to be contemplated or taken into account in the Design of the Project Infrastructure; (iv) if and to the extent that such Supervening Event and/or the effect thereof does not result from or is not contributed to by, directly or indirectly: (A) in the case of a claim of any Supervening Event by Project Co, any Project Co Non-Excusable Event; or (B) in the case of a claim of a Force Majeure Event by the Province, any Province Non-Excusable Event; and (v) if the Applicant provides a Supervening Event Notice in respect of such Supervening Event pursuant to Section 8.2(a) no more than 12 months after the date of the occurrence or commencement of such Supervening Event. (c) Nothing in this Part 8 shall limit the Province’s right to request a Province Change pursuant to Section 7.1 [Province Changes] in response to the occurrence of any Supervening Event, including a Province Change to give to Project Co instructions to accelerate construction or take other steps to avoid any delay or impediment, or reduce the period of any future delay or mitigate the effect of any future impediment, resulting from such Supervening Event. Subject to a cancellation of such request for a Province Change as a result of the successful exercise by Project Co of its rights in accordance with Section 4.2 [Project Co Objection] of Schedule 11, in the event that the Province requests such a Province Change the procedures in respect of such Supervening Event set out in this Part 8 shall terminate and the matter shall be fully determined in accordance with Part 7 [Province Changes and Project Co Proposals] and Schedule 11 [Changes], provided that the Supervening Event and its consequences (as such consequences may be affected by the Province Change) shall be dealt with as part of the resulting Province Change.

Supervening Events. (a) If, in the case of: (i) Project Cothe Concessionaire, a Compensation Event or Relief Event occurs; or (ii) either the Province or Project Cothe Concessionaire, a Force Majeure Event occurs, then if and to the extent that such event interferes adversely with, or causes a failure of, or prevents, the performance of, in the case of Project Cothe Concessionaire, the Project Work or, in the case of the Province, any obligation under this Agreement, then, subject to Section 8.1(b), the affected or entitled party (the “Applicant”) may apply for relief from its obligations, apply for extensions of timetime (including extensions of the Expiry Date pursuant to Section 8.4(d)), claim compensation and/or claim a termination right under this Agreement to the extent provided in this Part 8Part. (b) Notwithstanding any other provision of this Part 8Part, an Applicant shall only be entitled to relief from its obligations, extensions of timetime (including extensions of the Expiry Date pursuant to Section 8.4(d)), compensation and/or a termination right under this Agreement in accordance with this Part 8 in respect of a Supervening Event: (i) in the case of a claim of any Supervening Event by Project Co the Concessionaire other than a No Threshold Compensation Event, : (A) if the interference with, failure of with or prevention of the Project Work referred to in Section 8.1(a) arising from such Supervening Event is in respect of either or both of the Design and the Construction, and such Supervening Event is either: (A1) one of the first four Supervening Events claimed by Project Co the Concessionaire and determined in accordance with this Part 8 to have occurred in any Contract Year from the Effective Date until the Total Western Segment Substantial Completion Date (or portion of such Contract Year in the case of the first and last Contract Years which commence during such period), each of which has resulted in either or both of the following: (1I) a Change in Costs in respect of the Design or and the Construction of greater than $100,000200,000 (index linked); or (2II) a delay of three or more days (or, in the case only of the Compensation Event referred to in paragraph (f) of the definition of Compensation Event in Section 1.1 [Definitions] of Schedule 1, seven or more days) to the occurrence of any or all of the SC1 Eastern Segment Substantial Completion Date, the SC2 Substantial Completion Date, the SC3 Western Segment Substantial Completion Date or and the Total Completion Date; or (B2) claimed by Project Co the Concessionaire in a Contract Year (or portion thereof in the case of the first and last Contract Years commencing in the period referred to in Section 8.1(b)(i)(A8.1(b)(i)(A)(1)) after four other Supervening Events meeting the requirements of this Part 8Part, including Section 8.1(b)(i)(A8.1(b)(i)(A)(1), have occurred; or (B) if such Supervening Event results in a Change in Costs in respect of the Operation, the Maintenance and the Rehabilitation of greater than $25,000 (index linked); (ii) if and to the extent that such Supervening Event is not caused by, could not reasonably have been prevented by and is beyond the reasonable control of the Applicant or any person for whom the Applicant is in law responsibleApplicant; (iii) in the case of any a claim of a any Supervening Event by Project Cothe Concessionaire, if and to the extent that such Supervening Event and/or the effect thereof is not required by the Project Requirements to be contemplated or taken into account by the Concessionaire in the Design design of the Project Concession Highway, the Other Highway Infrastructure, the Port Infrastructure or the Municipal Infrastructure, as the case may be (provided that this shall not exclude damage caused by a Seismic Event that would otherwise be included pursuant to the definition of the relevant Supervening Event in Section 1.1 [Definitions] of Schedule 1); (iv) if and to the extent that such Supervening Event and/or the effect thereof does not result from or is not contributed to by, directly or indirectly: (A) in the case of a claim of any Supervening Event by Project Cothe Concessionaire, any Project Co Concessionaire Non-Excusable Event; or (B) in the case of a claim of a Force Majeure Event by the Province, any Province Non-Excusable Event; and (v) if the Applicant provides a Supervening Event Notice in respect of such Supervening Event pursuant to Section 8.2(a) no more than 12 months after the date of the occurrence or commencement of such Supervening Event. (c) Nothing in this Part 8 shall limit the Province’s right to request a Province Change pursuant to Section 7.1 [Province Changes] in response to the occurrence of any Supervening Event, including a Province Change to give to Project Co the Concessionaire instructions to accelerate construction or take other steps to avoid any delay or impediment, or reduce the period of any future delay or mitigate the effect of any future impediment, resulting from such Supervening Event. Subject to a cancellation of such request for a Province Change as a result of the successful exercise by Project Co the Concessionaire of its rights in accordance with Section 4.2 [Project Co ObjectionConcessionaire Refusal to Proceed] of Schedule 11, in the event that the Province requests such a Province Change the procedures in respect of such Supervening Event set out in this Part 8 shall terminate and the matter shall be fully determined in accordance with Part 7 [Province Changes and Project Co Concessionaire Proposals] and Schedule 11 [Changes], provided that the Supervening Event and its consequences (as such consequences may be affected by the Province Change) shall be dealt with as part of the resulting Province Change.

Supervening Events. (a) IfUpon the occurrence of an Excusing Cause, Relief Event or event of Force Majeure (collectively, “Supervening Events” and individually, a “Supervening Event”), Project Co shall, if it wishes to claim relief in respect of any such event, give written notice to the Ministry within five Business Days of becoming aware of a Supervening Event. Such notice shall give sufficient details to identify the particular event claimed to be a Supervening Event. (b) A subsequent written notice shall be given by Project Co to the Ministry within a further five Business Days of the initial notice, which notice shall contain such relevant information relating to the failure to perform (or delay in performing) as is available, including, without limitation, the effect of the Supervening Event on the ability of Project Co to perform all or any part of the O&M Interim Services, the action being taken in accordance with Section 10(c) of this Agreement, the date of occurrence of the Supervening Event, and an estimate of the period of time required to overcome the Supervening Event and/or its effects. (c) Provided that the effect of a Supervening Event is claimed by Project Co, in writing, within five Business Days of the case ofdate on which Project Co or any Project Co Party became aware of the occurrence of such Supervening Event, to the extent Project Co’s ability to perform the O&M Interim Services in accordance with this Agreement is adversely affected: (i) failure by Project Co to perform, and any poor performance of any affected O&M Interim Services shall not constitute a breach of this Agreement by Project Co, a Compensation Event or Relief Event occurs; or; (ii) either Project Co shall be relieved of its obligations to perform the Province O&M Interim Services; and (iii) Non-Conformances arising in respect of such affected O&M Interim Services shall not count towards Quality Failures. (d) If Project Co is (or claims to be) affected by a Supervening Event, Project CoCo shall, a Force Majeure Event occursand shall require all Project Co Parties to, then if take and continue to take commercially reasonable steps: (A) to eliminate or mitigate the extent that consequences of such event interferes adversely with, or causes a failure of, or prevents, upon the performance of, in the case of Project Co, the Project Work or, in the case of the Province, any obligation obligations under this Agreement, then, subject ; (B) to Section 8.1(b), the affected or entitled party (the “Applicant”) may apply for relief from continue to perform its obligations, apply for extensions of time, claim compensation and/or claim a termination right obligations under this Agreement to the extent provided in this Part 8. (b) Notwithstanding any other provision of this Part 8, an Applicant shall only be entitled to relief from its obligations, extensions of time, compensation and/or a termination right under this Agreement in accordance with this Part 8 in respect of a possible notwithstanding the Supervening Event: (i) in the case of a claim of any Supervening Event by Project Co other than a No Threshold Compensation Event, if the interference with, failure of or prevention of the Project Work referred to in Section 8.1(a) arising from such Supervening Event is in respect of either or both of the Design and the Construction, and such Supervening Event is either: (A) one of the first four Supervening Events claimed by Project Co and determined in accordance with this Part 8 to have occurred in any Contract Year from the Effective Date until the Total Completion Date (or portion of such Contract Year in the case of the first and last Contract Years which commence during such period), each of which has resulted in either or both of the following: (1) a Change in Costs in respect of the Design or the Construction of greater than $100,000; or (2) a delay of three or more days (or, in the case only of the Compensation Event referred to in paragraph (f) of the definition of Compensation Event in Section 1.1 [Definitions] of Schedule 1, seven or more days) to the occurrence of any or all of the SC1 Substantial Completion Date, the SC2 Substantial Completion Date, the SC3 Substantial Completion Date or the Total Completion Date; or (B) claimed by Project Co in a Contract Year (or portion thereof in the case of the first and last Contract Years commencing in the period referred to in Section 8.1(b)(i)(A)) after four other Supervening Events meeting the requirements of this Part 8, including Section 8.1(b)(i)(A), have occurred; (ii) if and to the extent that such Supervening Event is not caused by, could not reasonably have been prevented by and is beyond the reasonable control of the Applicant or any person for whom the Applicant is in law responsible; (iii) in the case of any claim of a Supervening Event by Project Co, if and to the extent that such Supervening Event and/or the effect thereof is not required by the Project Requirements to be contemplated or taken into account in the Design of the Project Infrastructure; (iv) if and to the extent that such Supervening Event and/or the effect thereof does not result from or is not contributed to by, directly or indirectly: (A) in the case of a claim of any Supervening Event by Project Co, any Project Co Non-Excusable Event; or (B) in the case of a claim of a Force Majeure Event by the Province, any Province Non-Excusable Event; and (vC) if to resume performance of its obligations under this Agreement affected by the Applicant provides a Supervening Event Notice as soon as practicable. (e) To the extent that Project Co does not comply with its obligations under Section 10(d), such failure shall be taken into account in determining Project Co’s entitlement to relief pursuant to Section 10(c); (f) Notwithstanding Section 10(c), the O&M Monthly Interim Services Payment shall be suspended and the Ministry shall pay to Project Co an amount which reflects the cost to Project Co of the O&M Interim Services actually provided by Project Co and, in respect of such Supervening Event pursuant an Excusing Cause referred to in Section 8.2(a41.2(v) no more than 12 months after the date of the occurrence or commencement of such Supervening Event. (c) Nothing in this Part 8 shall limit the Province’s right to request a Province Change pursuant to Section 7.1 [Province Changes] in response to the occurrence of any Supervening EventProject Agreement and applicable herein, including a Province Change to give to all incremental Direct Costs incurred by Project Co instructions to accelerate construction or take other steps to avoid any delay or impediment, or reduce the period of any future delay or mitigate the effect of any future impediment, resulting from such Supervening Event. Subject to a cancellation of such request for a Province Change as a result of the successful exercise by Project Co of its rights in accordance with Section 4.2 [Project Co Objection] of Schedule 11, in the event that the Province requests such a Province Change the procedures in respect of such Supervening Event set out in this Part 8 shall terminate and the matter shall be fully determined in accordance with Part 7 [Province Changes and Project Co Proposals] and Schedule 11 [Changes], provided that the Supervening Event and its consequences (as such consequences may be affected by the Province Change) shall be dealt with as part of the resulting Province ChangeExcusing Cause.

Supervening Events. (a) If, in the case of: (i) Project Co, a Compensation Event or Relief Event occurs; or (ii) either the Province or Project Co, a Force Majeure Event occurs, then if and to the extent that such event event: (A) in the case of Project Co: (1) interferes adversely with, or causes a failure of, or prevents, prevents the performance of, in the case of Project Co, the Project Work Work; or, , (2) is a Compensation Event and results in Direct Losses; and (B) in the case of the Province, interferes adversely with, or causes a failure of, or prevents the performance of the any obligation under this Agreement, then, subject to Section 8.1(b), the affected or entitled party (the “Applicant”) may apply for relief from its obligations, apply for extensions of time, claim compensation and/or or claim a termination right under this Agreement to the extent provided in this Part 8. (b) Notwithstanding any other provision of this Part 8, an Applicant shall only be entitled to relief from its obligations, extensions of time, compensation and/or or a termination right under this Agreement in accordance with this Part 8 in respect of a Supervening Event: (i) in the case of a claim of any Supervening Event by Project Co other than a No Threshold Compensation Event, : (A) if the interference with, failure of or prevention of the Project Work referred to in Section 8.1(a) arising from such Supervening Event is in respect of either or both of the Design and the Construction, and such Supervening Event is either: (A1) one of the first four Supervening Events claimed by Project Co and determined in accordance with this Part 8 to have occurred in any Contract Year from the Effective Date until the Total Completion Date (or portion of such Contract Year in the case of the first and last Contract Years which commence during such period), each of which has resulted in either or both of the following: (1I) a Change in Costs in respect of the Design or the Construction of greater than $100,000; or (2II) a delay of three or more days (or, in the case only of the Compensation Event referred to in paragraph (f) of the definition of Compensation Event in Section 1.1 [Definitions] of Schedule 1, seven or more days) to the occurrence of any or all of the SC1 Substantial Completion Date, the SC2 Substantial Total Completion Date, the SC3 Substantial On-Time Performance Demonstration Completion Date or and the Total TIDS Performance Demonstration Completion Date; or (B2) claimed by Project Co in a Contract Year (or portion thereof in the case of the first and last Contract Years commencing in the period referred to in Section 8.1(b)(i)(A)) after 8.1(b)(i)(A)(1))after four other Supervening Events meeting the requirements of this Part 8, including Section 8.1(b)(i)(A8.1(b)(i)(A)(1), have occurred; (ii) if and to the extent that such Supervening Event is not caused by, could not reasonably have been prevented by and is beyond the reasonable control of the Applicant or any person for whom the Applicant is in law responsible; (iii) in the case of any claim of a Supervening Event by Project Co, if and to the extent that such Supervening Event and/or or the effect thereof is not required by the Project Requirements to be contemplated or taken into account in the Design of the Project Infrastructure; (iv) if and to the extent that such Supervening Event and/or or the effect thereof does not result from or is not contributed to by, directly or indirectly: (A) in the case of a claim of any Supervening Event by Project Co, any Project Co Non-Excusable Event; or (B) in the case of a claim of a Force Majeure Event by the Province, any Province Non-Excusable Event; and (v) if the Applicant provides a Supervening Event Notice in respect of such Supervening Event pursuant to Section 8.2(a) no more than 12 months after the date of the occurrence or commencement of such Supervening Event. (c) Nothing in this Part 8 shall limit the Province’s right to request a Province Change pursuant to Section 7.1 [Province Changes] in response to the occurrence of any Supervening Event, including a Province Change to give to Project Co instructions to accelerate construction or take other steps to avoid any delay or impediment, or reduce the period of any future delay or mitigate the effect of any future impediment, resulting from such Supervening Event. Subject to a cancellation of such request for a Province Change as a result of the successful exercise by Project Co of its rights in accordance with Section 4.2 [Project Co Objection] of Schedule 11, in the event that the Province requests such a Province Change the procedures in respect of such Supervening Event set out in this Part 8 shall terminate and the matter shall be fully determined in accordance with Part 7 [Province Changes and Project Co Proposals] and Schedule 11 [Changes], provided that the Supervening Event and its consequences (as such consequences may be affected by the Province Change) shall be dealt with as part of the resulting Province Change.