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Example clauses

Notes and References

Delay Events

Delay events usually give rise to an extension of time for completion of construction.  Compensation is payable for all delay events (other than force majeure or relief events) in accordance with the other provisions in the concession agreement.

Alternative 1

If, at any time, Concessionaire becomes aware that there will be (or is likely to be) a delay in completion of the Works, Concessionaire shall forthwith give notice to the Authority's Representative to that effect specifying the relevant delay or impediment.  In relation to any such delay or impediment:

(a)  if the Authority's Representative is satisfied, or it is determined in accordance with Schedule [Dispute Resolution Procedure], that such delay or impediment has arisen as a result of the occurrence of a Delay Event, then, subject to Clause [Mitigation] the Authority's Representative shall allow Concessionaire an extension of time equal to the delay or impediment caused by such Delay Event (taking into account reasonably foreseeable consequences of the Delay Event) and shall fix a new Completion Date which shall replace the existing Completion Date; but 

(b)  to avoid doubt, there shall be no extension to the Project Term as a result of any such delay or impediment.

If the Concessionaire is (or claims to be) affected by a Delay Event:

(a)  it shall (and shall procure that the Concessionaire Parties shall) take and continue to take all reasonable steps to eliminate or mitigate the consequences of such an event upon the performance of its obligations under this Agreement and, where relevant, resume performance of its obligations affected by the Delay Event as soon as practicable; and

(b)  it shall neither be relieved from liability under this Agreement nor entitled to any extension of time for the purpose of Clause [Delay Event] to the extent that it is delayed or impeded due to its failure (if any) to comply with its obligations under Clause [ref] above.

For the purposes of this Agreement, Delay Events means any of the following to the extent in each case that there will be (or is likely to be) a delay in completion of the Facilities:

(a)  an Authority's Works Variation initiated by an Authority's Works Variation Enquiry in accordance with paragraph 2 of Part 1 of Schedule [Variation Procedure] in relation to which Concessionaire has issued a response pursuant to paragraph [ref] of Schedule [Variation Procedure] specifying and providing evidence that implementation of the Authority's Works Variation would delay the completion of the Facilities if this has been agreed between the parties or determined to be the case in accordance with Schedule [Dispute Resolution Procedure];

(b)  any breach by the Authority and/or any Authority Party of any of the Authority's express obligations under this Agreement (including any delay in the Authority giving access to the Site pursuant to Clause [Nature of Land Interests] or any obstruction of the Ancillary Rights afforded to Concessionaire pursuant to Clause [Nature of Land Interests] by the Authority or any Authority Party) to the extent in each case that any such breach is not caused, or contributed to, by Concessionaire or any Concessionaire Party;

(c)  the execution of works on the Site not forming part of this Agreement by the Authority or any contractors employed by the Authority;

(d)  opening up of the Works pursuant to Clauses [Right to open up] (inclusive) () where such Works are not subsequently found to be defective (unless it is agreed or determined in accordance with Clause [Dispute Resolution] that the opening up of the Works was reasonable in the light of other defects previously discovered by the Authority);

(e)  Force Majeure; 

(f)  a Relief Event; or

(g)  a Relevant Change in Law referred to in Clauses [Discriminatory Changes] or [Authority Specific Changes].

Without prejudice to the generality of Clause [delay event], Concessionaire shall give notice in writing to the Authority's Representative as soon as it (or the Contractor) can reasonably foresee a Delay Event occurring or, if the same is not reasonably foreseeable, as soon as it (or the Contractor) shall become aware of a Delay Event.  Concessionaire shall within [number] Business Days after such notification, give further written details to the Authority's Representative which shall include:

(a)  a statement of which Delay Event the claim is based upon;

(b)  details of the circumstances from which the Delay Event arises;

(c)  details of the contemporary records which Concessionaire will maintain to substantiate its claim for extra time;

(d)  details of the consequences (whether direct or indirect, financial or non-financial) which such Delay Event may have upon completion of the Facilities; and

(e)  details of any measures which Concessionaire proposes to adopt to mitigate the consequences of such Delay Event.

As soon as possible but in any event within [number] Business Days of the Concessionaire receiving, or becoming aware of, any supplemental information which may further substantiate or support Concessionaire's claim then Concessionaire shall submit further particulars based on such information to the Authority's Representative.

The Authority's Representative shall, after receipt of written details under Clause [above], or of further particulars under Clause  [above], be entitled by notice in writing to require Concessionaire to provide such further supporting particulars as he may reasonably consider necessary.  Concessionaire shall afford the Authority's Representative reasonable facilities for investigating the validity of Concessionaire's claim including, without limitation, on-site inspection.

Subject to the provisions of this Clause, the Authority's Representative shall fix a revised Completion Date in accordance with Clause [New Completion Date] as soon as reasonably practicable and in any event within [number] Business Days of the later of:

(a)  the date of receipt by the Authority's Representative of Concessionaire's notice given in accordance with Clause [above] and the date of receipt of any further particulars (if such are required under Clause [above]), whichever is the later; and

(b)  the date of receipt by the Authority's Representative of any supplemental information supplied by Concessionaire in accordance with Clause [above] and the date of receipt of any further particulars (if such are required under Clause [above]), whichever is the later.

If Concessionaire has failed to comply with the requirements as to the giving of notice under Clause [above], or has failed to maintain records or afford facilities for inspection to the Authority's Representative, then the following provisions shall apply:

(a)  the Authority's Representative may require Concessionaire to submit details of the reasons for such failure.  If the Authority's Representative has not stated that he is satisfied with the reasons given within [number] Business Days of their receipt, Concessionaire may refer the matter for resolution in accordance with Clause [Dispute Resolution Procedure];

(b)  if either the Authority's Representative is satisfied with the reasons given or the decision of the Dispute Resolution Procedure is that the failure is excusable, then the Authority's Representative shall proceed to the evaluation of the request for an extension of time in accordance with Clause []; or

(c)  if the decision of the Authority's Representative (or in the event that the decision is disputed, if the determination in accordance with Schedule [Dispute Resolution Procedure]) is that the failure is not excusable, then Concessionaire shall not be entitled to a revised Completion Date in respect of the relevant Delay Event to the extent that the Authority's Representative has, as a result of such failures, been prevented from assessing the consequences of the Delay Event.

If:

(a)  the Authority's Representative declines to fix a revised Completion Date; or

(b)  Concessionaire considers that a different Completion Date should be fixed; or

(c)  there is a disagreement as to whether a Delay Event has occurred,

then Concessionaire shall be entitled to refer the matter for determination in accordance with Schedule [Dispute Resolution Procedure].

Compensation

If either the Delay Event is a Delay Event referred to in sub-Clause (a) or there is an event referred to in Clause (b) (each a "Compensation Event"), Concessionaire's sole right to compensation shall be as provided for in this Clause. To avoid doubt, no other Delay Event (or event referred to in Clause [ref] pursuant to which Concessionaire incurs a loss or expense) shall entitle Concessionaire to receive any compensation save as otherwise expressly provided in:

(a)  Schedule [Variation Procedure] in the case of a Delay Event referred to in Clause [Works Change] (subject always to the provisions of Clause [Changes in Law]); or

(b)  Clause [Changes in Law] in the case of a Delay Event referred to in Clause [Discriminatory and Authority specific Changes in Law).

For the purposes of this Clause, a Compensation Event means either: 

(a)  any Delay Event referred to in Clause [Breach, Execution of non-project related works or Opening up of Works] for which, in each case, it has been agreed or determined pursuant to this Clause that Concessionaire is entitled to an extension of time; or

(b)  in the period prior to the Actual Completion Date, in circumstances where there is no delay in completion of the Facilities, any breach by the Authority and/or any Authority Party of any of the Authority's express obligations under this Agreement (including any delay in the Authority giving access to the Site pursuant to Clause [Nature of Land Interests] or any obstruction of the Ancillary Rights afforded to Concessionaire pursuant to Clause [Nature of Land Interests] by the Authority or any Authority Party) to the extent in each case that any such breach is not caused, or contributed to, by Concessionaire or any Concessionaire Party or the occurrence of the circumstances described in Clause [ref] to the extent that such circumstances are not caused, or contributed to, by Concessionaire or any Concessionaire Party.

Subject to Clause [ref], if it is agreed, or determined, that there has been a Compensation Event, and Concessionaire has incurred loss and/or expense as a direct result of such Compensation Event, Concessionaire shall be entitled to such compensation as would place Concessionaire in no better or no worse position than it would have been in had the relevant Compensation Event not occurred.  Concessionaire shall promptly provide the Authority's Representative with any additional information he may require in order to determine the amount of such compensation.

Concessionaire shall take all reasonable steps so as to minimise the amount of compensation due in accordance with this Clause in relation to any Compensation Event and any compensation payable shall:

(a)  exclude any amounts incurred or to be incurred as a result of any failure of Concessionaire (or any Concessionaire Party) to comply with this Clause; and

(b) be reduced by any amount which Concessionaire will recover under any insurance policy (or would have recovered if it had complied with the requirements of this Agreement or of any policy of insurance required under this Agreement) which amount, to avoid doubt, shall not include any excess or deductibles or any amount over the maximum amount insured applicable to any such insurance policy.

The amount of any compensation due to Concessionaire under this Clause shall be agreed between the parties or, failing agreement, determined pursuant to Schedule [Dispute Resolution Procedure].

See SOPC Section 5.2.

Alternative 1 adapted from Department of Health (UK), Standard Form Project Agreement Index reference A1 Folder 1.

Alternative 2

The Concessionaire shall not be considered to be in breach of its obligations under this Agreement nor shall it incur or suffer any liability if and to the extent performance of any of its obligations under this Agreement is affected by or on account of any of the following:

(a)  Force Majeure Event;

(b)  The Authority Event of Default; 

(c)  Compliance with the instructions of the Independent Engineer/the Authority or the directions of any Government Authority other than instructions issued as a consequence of a breach by the Concessionaire of any of its obligations hereunder; 

(d)  Emergency Decommissioning of the Project Facility or part thereof; 

(e)  Closure of the Project Facility or part thereof with the approval of the Independent Engineer / the Authority. 

Alternative 2 adapted from Concession Agreement for Colombo Kathunayake Expressway Project (note confidential), index reference A2, folder 1.