4.1 Within ten (10) Business Days of receipt of the notice referred to in paragraph 3.2 of this Section 1:
(a) if Project Co has served a notice under paragraph 3.2(a) but the Board's Representative does not accept that Project Co is entitled to object to the Variation Enquiry, the matter may be referred for resolution in accordance with Part 26 of the Schedule (Dispute Resolution Procedure) and if the Dispute is resolved in favour of the Board then Project Co shall forthwith give the notice referred to in paragraph 3.2(b);
(b) if the contents of the notice under paragraph 3.2(b) shall be to the satisfaction of the Board's Representative he shall so inform Project Co and the parties shall proceed to agree or determine all the matters referred to in paragraph 4.3 of this Section 1; or
(c) if he wishes to consider further any matter, the Board's Representative may give notice to that effect to Project Co provided that if no response is given under paragraph (b) of this paragraph 4.1 prior to the date referred to in paragraph 3.2(b)(iv), (Latest date for Variation Confirmation) the Variation Enquiry shall be deemed to have been withdrawn; or
(d) if any aspect of a notice under paragraph 3.2(b) shall not be to the Board's Representative's satisfaction he shall so notify Project Co and shall specify the alterations to the notice which he would require in order to be so satisfied.
4.2 If the Board's Representative has given a notice referred to in paragraph 4.1(d) of this Section 1 then, unless agreement has been reached with Project Co within a further ten (10) Business Days from the date of issue of that notice (in which case the Board's Representative shall proceed pursuant to paragraph 4.1(b) of this Section 1) or the Board's Representative withdraws the Variation Enquiry, the outstanding Dispute shall be referred for resolution in accordance with Part 26 of the Schedule (Dispute Resolution Procedure) to be determined (if the Board's Representative so requires it) concurrently with any matter referred to in paragraph 4.3 of this Section 1. In seeking to reach agreement and/or in so determining a Dispute pursuant to this paragraph or to paragraph 4.3, the criterion to be applied to resolve any such dispute (except where another criterion or other criteria are expressly or by implication stated in this Part 22 of the Schedule) shall be that Project Co shall be in no worse position in relation to the Project and the Works after the Variation is implemented than it would have been in had the Variation not been implemented.
4.3 The parties shall meet and seek to agree the matters referred to in paragraphs 4.3(a) and 4.3(b) in relation to the Variation, failing which agreement being reached in a reasonable period of time, either party may refer any matter for resolution in accordance with Part 26 of the Schedule (Dispute Resolution Procedure). The matters to be agreed or determined are:
(a) in relation to the terms of the Variation:
(i) any alteration to the Completion Date;
(ii) the Capital Expenditure required to implement the Variation or saved by such implementation and any costs or expenditure recoverable by Project Co and/or any out of pocket costs or expenditure to be met by the Board under this Part 22 of the Schedule in connection with or as a consequence of the Variation and the timing and method of payment thereof (including, where applicable, payment pursuant to paragraph 3 of Section 2 of this Part 22 of the Schedule);
(iii) the specification of any Service Variation (including any further Service Variation) required in connection with the Variation and whether Project Co has any right to object to such Service Variation under the provisions of this Part 22 of the Schedule;
(iv) any alteration to the Service Payment pursuant to the provisions of Section 3 of this Part 22 of the Schedule and the other results of the operation of Section 3 in accordance with the provisions of that Section;
(v) any amendment to the provisions of this Agreement which is referred to in paragraph 3.2(b)(vi) (Deductions Mechanisms); and
(vi) any relief to be granted to Project Co in respect of any [Non-Availability] or Service Failure Points as referred to in paragraph 3.2(b)(vii) (Relief)168,
in each case occasioned by the Variation; and
(b) the terms of a supplementary agreement under which:
(i) as required to give effect to the Variation in each case, the Board's Construction Requirements and/or Project Co's Proposals are amended (in respect of any Board Works Variation or Board Additional Works Item); and/or provision is made for the amendment of the as-built drawings and specifications, including Room Data Sheets and other records, drawings, operating and maintenance manuals, the asset register, the health and safety file (all on completion of a Board Additional Works Item); and/or the Method Statements or Service Level Specifications are amended in respect of any Service Variation; and
(ii) the matters referred to in paragraph 4.3 of this Section 1 are fully recorded and given effect as amendments to and/or other variations to the provisions of this Agreement and/or such other documentation as is necessary.
Board Funding Information
4.4 The Board shall upon request from Project Co provide information to Project Co to show how the Service Payments (as altered in accordance with Section 3 of this Part 22 of the Schedule) and any capital sum payable in accordance with paragraph 3 of Section 2 of this Part 22 of the Schedule will be funded by the Board, including, to the extent that the Board is required to obtain the same, in accordance with the procedures applicable to the Board or the NHS (or any successor of it):
(a) written approval to the proposed Variation (and the financial consequences for the Board) by each of the Scottish Government Health Directorates Private Finance and Capital Unit and by the Scottish Ministers and giving satisfactory comfort to Project Co regarding affordability and the legal capacity of the Board to require and implement the variation, in the manner contemplated by the Variation Enquiry; and
(b) letters from the principal purchasers or commissioners of healthcare services from the Board (or their equivalent) confirming how the Variation is to be funded and, where required by such procedures, confirming their approval of the Variation,
and, where so requested, Project Co's satisfaction (acting reasonably and without delay) with the information referred to in this paragraph 4.4 shall be a condition of the Variation Confirmation becoming effective.
4.5 Upon the agreement or determination of all the matters referred to in paragraph 4.3, and upon any Consent having been modified or obtained, in accordance with paragraph 5 [Consents] in terms reasonably satisfactory to Project Co and the Board, and upon the provision by Project Co to the Board of evidence reasonably satisfactory to the Board of the availability of committed funding for the Variation (subject only to any condition relating to the issue of the Variation Confirmation pursuant to this paragraph), the Board's representative shall, by notice (a "Variation Confirmation") confirm the Variation. Upon the issue of the Variation Confirmation, the parties shall enter into the supplementary agreement referred to in paragraph 4.3, subject to and conditional upon any relevant funding procured by Project Co becoming unconditionally available for drawdown to Project Co.
4.6 Upon the Variation Confirmation being issued and the supplementary agreement referred to in paragraph 4.5 becoming unconditional in all respects:
(a) the relevant Variation shall be a Qualifying Variation; and
(b) the rights and liabilities of the parties under this Agreement shall be construed accordingly.
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168 See previous footnote.