39.2 Subject to Clause 39.4(c)(v) and Clause 39.4(c)(vi) (Mitigation) and on the occurrence of any Relevant Change in Law, the parties shall be entitled to seek adjustments to the Service Payments to compensate for any increase or decrease (as the case may be) in the net cost to Project Co of performing the Project Operations. Such adjustments (if any) will be calculated in accordance with (and subject to) Clauses 39.4 to 39.7 (inclusive).
39.3 Relevant Change in Law means any of the following:130
(a) the occurrence of any Discriminatory Change in Law having an impact on the cost of performance of the Project Operations;
(b) the occurrence of any NHS Specific Change in Law having an impact on the cost of performance of the Project Operations; or
(c) the occurrence, after the relevant date, of any Change in Law which requires Project Co to carry out works affecting [any completed Phase comprising part of] the Facilities (being any work of alteration, addition, demolition or extension or variation in the quality or function of the Facilities) which are not Maintenance Works or work which Project Co would otherwise be required to undertake to comply with its obligations under this Agreement. For the purposes of this Clause 39.3(c), the relevant date shall be the later to occur of the Completion Date and the Actual Completion Date the [Phase Actual Completion Date for the relevant Phase], save where the [Phase] Actual Completion Date is delayed by a Compensation Event, a Delay Event referred to in Clause 41.3(a) (Works Change) or by a Delay Event referred to in Clause 41.3(g) (Discriminatory and NHS Specific Changes in Law), in which case the relevant date shall be the later to occur of the [Phase] Completion Date and the date on which [the Phase of] the Works would have been completed in accordance with this Agreement had the relevant Delay Event not occurred,
provided that:
(i) in the case of a Change in Law referred to in Clauses (a) and (b) above, the impact of such Relevant Change in Law (either singly or in aggregate with any other such Relevant Change in Law in any Contract Year) on the cost of performance of the Project Operations exceeds [one thousand pounds (£1,000)]131 (index linked). To avoid doubt, any such amount of [one thousand pounds (£1,000)] (index linked) shall always be borne by Project Co;
(ii) such Change in Law was not reasonably foreseeable at the date of this Agreement by an experienced contractor performing operations similar to the relevant Project Operations, on the basis of draft bills published in Government green or white papers or other Government departmental consultation papers, bills, draft statutory instruments or draft instruments or proposals published in the Official Journal of the European Union, in each case published:
(aa) prior to the date of this Agreement; and
(bb) in substantially the same form or having substantially the same effect as the Relevant Change in Law; and
(iii) a Change in Law relating to the application for, coming into effect, terms, implementation, repeal, revocation or otherwise of any Planning Permission shall not constitute a Relevant Change in Law.
39.4 On the occurrence of a Relevant Change in Law:
(a) either party may give notice to the other of the occurrence of the Relevant Change in Law;
(b) the parties shall meet within [ ] Business Days of the notice referred to in Clause (a) to consult and seek to agree the effect of the Relevant Change in Law. If the parties, within [ ] Business Days of this meeting, have not agreed the occurrence or the effect of the Relevant Change in Law, either party may refer the question of whether a Relevant Change in Law has occurred or the effect of any Relevant Change in Law for resolution in accordance with Part 26 of the Schedule (Dispute Resolution Procedure); and
(c) within [ ] Business Days of the agreement or determination referred to in Clause 39.4(b) above, the Board's Representative shall issue a Variation Enquiry132 and the relevant provisions of Part 22 of the Schedule (Variation Procedure) shall apply except that:
(i) Project Co may give notice to the Board's Representative that it objects to such a Variation Enquiry only on the grounds that the implementation of the Variation would not give effect to or comply with the Relevant Change in Law;
(ii) the Board shall issue a Variation Confirmation in respect of the Variation in accordance with the relevant provisions of Part 22 of the Schedule (Variation Procedure);
(iii) the provisions of Clause 16 (Consents and Planning Approval) shall apply and, to avoid doubt, the provisions of paragraph 5 of Section 1 of Part 22 of the Schedule (Variation Procedure) shall not apply;133
(iv) the Board shall not be entitled to withdraw any Variation Enquiry or Variation Confirmation issued in accordance with this Clause 39.4;
(v) Project Co shall, without prejudice to its general obligation to comply with the terms of this Agreement:
(aa) use all reasonable endeavours to mitigate the adverse effects of any Relevant Change in Law and take all reasonable steps to minimise any increase in costs arising from such Relevant Change in Law; and
(bb) use all reasonable endeavours to take advantage of any positive or beneficial effects of any Relevant Change in Law and take all reasonable steps to maximise any reduction in costs arising from such Relevant Change in Law; and
(vi) any compensation payable, or reduction to the Service Payments, shall be calculated in accordance with Clause 39.5 or Clause 39.6 (as appropriate) provided that:
(aa) the amount of any compensation payable; or
(bb) the amount by which the Services Payment is to be reduced,
shall not take into account any amounts incurred or to be incurred as a result of Project Co's failure to comply with Clause 39.4(c)(v) above.
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130 Changes in Law relating to the extent of irrecoverable VAT are dealt with in Clause 53
131 This amount is expressed at January 1999 prices and should be increased to a current day amount as at the date of signature of the Agreement.
132 The Board has a say over the manner in which any variations are implemented in accordance with the provisions of the Variation Procedure and Project Co's grounds for objections to such changes are limited to the grounds referred to in paragraph (c)(i).
133 The financial consequences of such changes in law rest with the Board (including in relation to the cost of obtaining any necessary Consent); the risks of obtaining the Consents remain with Project'Co