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Relief events

Relief events are events which prevent performance by the Concessionaire of its obligations at any time, in respect of which the Concessionaire bears the financial risk in terms of increased costs and reduced revenue but for which it is generally given relief from termination for failure to provide the full service.

For the purposes of this Agreement, subject to Clause [Mitigation], Relief Events mean any of the following events:

(a)  fire, explosion, lightning, storm, tempest, flood, bursting or overflowing of water tanks, apparatus or pipes, ionising radiation (to the extent it does not constitute Force Majeure), earthquake, riot or civil commotion;

(b)  failure by any statutory undertaker, utility company, local authority or other like body to carry out works or provide services;

(c)  accidental loss or damage to the Works and/or Facilities or any roads servicing the same;

(d)  without prejudice to any obligation of Concessionaire to provide stand-by power facilities in accordance with the Authority's Construction Requirements, the Service Level Specifications [or the Interim Service Statements], failure or shortage of power, fuel or transport;

(e)  blockade or embargo falling short of Force Majeure;

(f)  the discovery of fossils, antiquities and human remains requiring action in accordance with Clause [Fossils and Antiquities]; or

(g)  official or unofficial strike, lockout, go slow or other dispute in each case generally affecting the construction, building maintenance or facilities management industry (or a significant sector of that industry),

provided in each case that such event does not arise (directly or indirectly) as a result of any wilful act or default of the party claiming relief and/or (i) in the case of Concessionaire claiming relief, any Concessionaire Party and (ii) in the case of the Authority claiming relief, any Authority Party.

Subject to Clause [ref], no right of termination shall arise under this Agreement by reason of any failure by a party to perform any of its obligations under this Agreement to the extent that such failure to perform occurs because of the occurrence of a Relief Event (and, to avoid doubt, and without prejudice to Clause [No Compensation], unless expressly stated to the contrary in this Agreement, it is acknowledged that all other rights and obligations of the parties under this Agreement remain unaffected by the occurrence of a Relief Event).

Without prejudice to Concessionaire's rights under Clause [Delay Events], Concessionaire shall only be relieved of its obligations under Clauses [The Design, Construction and Commissioning Process, Right of Access of The Authority's Representative, Programme and Dates for Completion, Pre-Completion Commissioning and Completion and Delay Events].

Mitigation

Where a party is (or claims to be) affected by a Relief Event:

(a)   it shall take all reasonable steps to mitigate the consequences of such an event upon the performance of its obligations under this Agreement, resume performance of its obligations affected by the Relief Event as soon as practicable and use all reasonable endeavours to remedy its failure to perform; and

(b)  it shall not be entitled to rely upon the relief afforded to it pursuant to Clause [ref] of this Agreement to the extent that it is not able to perform, or has not in fact performed, its obligations under this Agreement due to its failure (if any) to comply with its obligations under Clause [ref] above.

The party claiming relief shall serve written notice on the other party within five (5) Business Days of it becoming aware of the relevant Relief Event.  Such initial notice shall give sufficient details to identify the particular event claimed to be a Relief Event.

A subsequent written notice shall be served by the party claiming relief on the other party within a further five (5) Business Days of the notice referred to in Clause [Mitigation] which 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 Relief Event on the ability of the party to perform, the action being taken in accordance with Clause [Mitigation], the date of the occurrence of the Relief Event and an estimate of the period of time required to overcome it (and/or its effects).

The party claiming relief shall notify the other as soon as the consequences of the Relief Event have ceased and of when performance of its affected obligations can be resumed.

If, following the issue of any notice referred to in Clause 0, the party claiming relief receives or becomes aware of any further information relating to the Relief Event (and/or any failure to perform), it shall submit such further information to the other part s soon as reasonably possible.

To avoid doubt, the occurrence of a Relief Event shall not entitle Concessionaire to any compensation.

See SOPC Section 5.3.

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