3.6.  Delays and Extensions of Time

3.6.1.  Failure by the Contractor to achieve the Readiness Date and the Planned Works Commencement Date due to:

(a)  the Contractor having not obtained a Satisfactory Planning Permission for the Facility [             ] having used All Reasonable Endeavours to obtain Planning Permission; or

(b)  the Contractor having obtained a Satisfactory Planning Permission for the Facility but later than the applicable date set out Schedule 8 (Key Dates),

shall be [compensation or remuneration should be considered here on a Project specific basis. There ought to be no blanket compensation but the Authority may agree to cover specific heads, for example the increased construction cost and increased financing costs such as capitalised interest under the Financing Agreement]207

3.6.2.  Compliance with this paragraph 3 shall be deemed to satisfy the provision of information requirements of Clauses 40.2 (Relief) and 40.6 (Delays due to a Relief Event) where the Contractor is claiming relief pursuant to limb [ ] of the definition of a Relief Event and the Contractor shall not additionally be required to comply with Clauses 40.2 (Relief) and 40.6 (Delays due to a Relief Event) in respect of any such claim.

3.6.3.  Notwithstanding paragraph 3.6.1 the Contractor shall continue to comply with its obligations to use All Reasonable Endeavours to obtain the relevant Satisfactory Planning Permission (unless those obligations shall cease to apply in accordance with paragraphs 3.3 (Revised Project Plan) or 3.5 (Termination of Contract as a Result of Planning Failure) and if the Contractor shall have obtained a Satisfactory Planning Permission the Contractor shall promptly so notify the Authority and within ten (10) Business Days:

(a)  demonstrate to the Authority the delay (if any) in mobilisation and commencement of the construction of the Facility by reference to Schedule 8 (Key Dates); and

(b)  propose to the Authority:

(i)  a revised Planned Works Commencement Date; and

(ii)  a revised Planned Services Commencement Date,

for the Facility (together "Revised Project Dates").

3.6.4.  The Authority and the Contractor shall seek to agree the Revised Project Dates as soon as possible and in doing so shall:

(a)  agree the Revised Project Dates which are fair and reasonable in the circumstances having regard to the extent of the delay;

(b)  disregard any delay caused by a breach, neglect or default of the Contractor; and

(c)  take account of the extent to which the Contractor should be able, by acting in accordance with Good Industry Practice (and without being required to expend any sums), to mitigate the consequences of delay.

3.6.5.  In default of delivery of the Revised Project Dates in accordance with paragraph 3.6.3 or default of agreement of the Revised Project Dates within ten (10) Business Days of delivery of such proposed Revised Project Dates, the Revised Project Dates shall be determined at the instance of either Party in accordance with Schedule 22 (Dispute Resolution).

3.6.6.  Once agreed or determined the Construction Programme shall be amended to reflect the Revised Project Dates.

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207  Further relief to be considered on a project specific basis and is a matter for evaluation and dialogue.  Delay should not be a Compensation Event because this transfers risk entirely to the Authority. However there may be certain elements of compensation that are appropriate (eg EPC indexation if a fixed price EPC to the Longstop Date is not value for money. And Bidders should set these out for the Authority to consider on a case by case basis  Authorities are referred to WIDP's Direction of Travel paper (December 2009).