41.1 If, at any time, Project Co becomes aware that there will be (or is likely to be) a delay in completion of the Works, Project Co shall forthwith give notice to the Board's Representative to that effect specifying the relevant delay or impediment. In relation to any such delay or impediment:
(a) if the Board's Representative is satisfied, or it is determined in accordance with Part 26 of the 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 41.2 (Mitigation) the Board's Representative shall allow Project Co 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.
41.2 If Project Co is (or claims to be) affected by a Delay Event:
(a) it shall (and shall procure that the Project Co 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 41.1(a) (Delay Event) to the extent that it is delayed or impeded due to its failure (if any) to comply with its obligations under Clause 41.2(a) above.
41.3 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) a Board's Works Variation initiated by a Board's Works Variation Enquiry in accordance with paragraph 2 of Section 1 of Part 22 of the Schedule (Variation Procedure) in relation to which Project Co has issued a response pursuant to paragraph 3.2(b) of Section 1 of Part 22 of the Schedule (Variation Procedure) specifying and providing evidence that implementation of the Board'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 Part 26 of the Schedule (Dispute Resolution Procedure);
(b) any breach by the Board and/or any Board Party of any of the Board's express obligations under this Agreement (including any delay in the Board giving access to the Site pursuant to Clause 14 (Nature of Land Interests) or any obstruction of the Ancillary Rights afforded to Project Co pursuant to Clause 14 (Nature of Land Interests) by the Board or any Board Party) or pursuant to the Licence by the Scottish Ministers or the then heritable proprietors of the Site to the extent in each case that any such breach is not caused, or contributed to, by Project Co or any Project Co Party;
(c) the execution of works on the Site not forming part of this Agreement by the Board or any contractors employed by the Board;
(d) opening up of the Works pursuant to Clauses 18.3 to 18.7 (inclusive) (Right to open up) where such Works are not subsequently found to be defective (unless it is agreed or determined in accordance with Part 26 of the Schedule (Dispute Resolution Procedure) that the opening up of the Works was reasonable in the light of other defects previously discovered by the Board);
(e) Force Majeure;
(f) a Relief Event; or
(g) a Relevant Change in Law referred to in Clause 39.3(a) (Discriminatory) or Clause 39.3(b) (NHS Specific)
41.4 Without prejudice to the generality of Clause 41.1, Project Co shall give notice in writing to the Board'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. Project Co shall within [ ] Business Days after such notification, give further written details to the Board'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 Project Co 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 Project Co proposes to adopt to mitigate the consequences of such Delay Event.
41.5 As soon as possible but in any event within [ ] Business Days of Project Co (or the Contractor) receiving, or becoming aware of, any supplemental information which may further substantiate or support Project Co's claim then Project Co shall submit further particulars based on such information to the Board's Representative.
41.6 The Board's Representative shall, after receipt of written details under Clause 41.4, or of further particulars under Clause 41.5, be entitled by notice in writing to require Project Co to provide such further supporting particulars as he may reasonably consider necessary. Project Co shall afford the Board's Representative reasonable facilities for investigating the validity of Project Co's claim including, without limitation, on-site inspection.
41.7 Subject to the provisions of this Clause, the Board's Representative shall fix a revised Completion Date in accordance with Clause 41.1(a) (New Completion Date) as soon as reasonably practicable and in any event within [ ] Business Days of the later of:
(a) the date of receipt by the Board's Representative of Project Co's notice given in accordance with Clause 41.4 and the date of receipt of any further particulars (if such are required under Clause 41.6), whichever is the later; and
(b) the date of receipt by the Board's Representative of any supplemental information supplied by Project Co in accordance with Clause 41.5 and the date of receipt of any further particulars (if such are required under Clause 41.6), whichever is the later.
41.8 If Project Co has failed to comply with the requirements as to the giving of notice under Clause 41.4, or has failed to maintain records or afford facilities for inspection to the Board's Representative, then the following provisions shall apply:
(a) the Board's Representative may require Project Co to submit details of the reasons for such failure. If the Board's Representative has not stated that he is satisfied with the reasons given within [ ] Business Days of their receipt, Project Co may refer the matter for resolution in accordance with Part 26 of the Schedule (Dispute Resolution Procedure);
(b) if either the Board's Representative is satisfied with the reasons given or the decision of the Dispute Resolution Procedure is that the failure is excusable, then the Board's Representative shall proceed to the evaluation of the request for an extension of time in accordance with Clause 41.7; or
(c) if the decision of the Board's Representative (or in the event that the decision is disputed, if the determination in accordance with Part 26 of the Schedule (Dispute Resolution Procedure)) is that the failure is not excusable, then Project Co shall not be entitled to a revised Completion Date in respect of the relevant Delay Event to the extent that the Board's Representative has, as a result of such failures, been prevented from assessing the consequences of the Delay Event.
41.9 If:
(a) the Board's Representative declines to fix a revised Completion Date; or
(b) Project Co considers that a different Completion Date should be fixed; or
(c) there is a disagreement as to whether a Delay Event has occurred,
then Project Co shall be entitled to refer the matter for determination in accordance with Part 26 of the Schedule (Dispute Resolution Procedure).
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135 Delay Events 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) as follows:
∙ Board Variations: Variation Procedure
∙ Board breach 41.3(b), 41.3 (c) and 41.3(d): Compensation Event
∙ Relevant Change in Law referred to in Clause 0: Change in Law provisions
An amendment has been made to the previous version of the standard form to allow for Delay Events to apply after the original completion date. However, the Board should be under no obligation to accept early completion where Project Co has completed prior to the revised completion date.