16.1 Relief Events47
(a) Relief Events may occur in either the design and construction phase of the project or the operating phase of the project. Jurisdictions may choose to adopt different Relief Events in the design and construction phase to the operating phase. Where a jurisdiction so chooses, separate procedures for claiming Relief will be set out in the project agreement.
(b) Relief Events will entitle the private party to relief from default/termination and, in certain jurisdictions, from abatement during the operational phase.
(c) Relief Events that occur during the design and construction phase will, provided certain conditions are met, entitle the private party to an extension of time to the Date for Completion and relief from any other obligations as is reasonable given the nature of the Relief Event. On some projects and in some jurisdictions, they may also entitle the private party to an extension to the operating term.
(d) Relief Events that occur during the operating phase will, provided certain conditions are met, entitle the private party to relief from default/termination for failure to provide the Contracted Services in accordance with the Services Specifications and other requirements of the project agreement. In some jurisdictions, they will also entitle relief from abatement.
(e) The specific Relief Events will differ for jurisdictional or project specific reasons, but will generally fall within the following categories of events:
(i) in those jurisdictions where Force Majeure Events are defined as a limited category of events in accordance with section 21.1(b), fire, flood or explosion will constitute a Relief Event to the extent it does not constitute a Force Majeure Event);
(ii) in jurisdictions where Force Majeure Events are defined as sustained Relief Events, the following events are defined as Relief Events: storm, tempest, lightning, cyclone, hurricane, ionising radiation, earthquakes, war (declared or undeclared), terrorism, armed conflict, riot and civil commotion, high sea inundations and droughts declared as a state of emergency;
(iii) an act or omission by government or relevant government-related parties48 at the facility/site (but only in their capacity as a contracting party) other than:
• the performance of the core services or any act or omission authorised or permitted under the Project Contracts; or
• an act or omission which is a reasonably foreseeable consequence of the performance of the core services49 or other authorised/permitted acts or omissions50;
(iv) failure by an authority (including a utility provider) to carry out works or provide services which it is obliged to carry out or provide (noting that some jurisdictions may limit entitlement to Relief to where the relevant authority has not acted in accordance with its statutory powers);
(v) any blockade or embargo (noting that some jurisdictions may limit this to a site specific blockade or embargo);
(vi) industrial action, noting that:
• some jurisdictions limit entitlement to Relief to the extent that it affects the construction or facilities management sectors or significant segment of them in addition to the project; and
• in other jurisdictions, Relief is only given to the extent that the industrial action directly affects the project and results directly from an act or omission of the contracting government party or any of its employees at the facility/site, excluding industrial action caused or motivated by opposition to PPPs;
(vii) any event or occurrence (outside the control of either party) which deprives possession of, or access to, the project site other than any event or occurrence arising from third party rights to use or access the site;
(viii) any event leading to a development approval not being obtained by a specified period after its target date;51
(ix) any event causing loss or damage to the facility; and
(x) Compensation Events (as defined in Chapter 17 (Compensation Events)).
(f) Jurisdictions may adopt some or all of the Relief Events listed above, or parts thereof, and may include additional Relief Events. However, additional events should only be adopted where this is warranted by the unique features of the project.
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47 Different jurisdictions may define Relief Events by various names, depending on whether they occur during the design and construction or operational phases, for example during the design and construction phase, "Extension of Time Events", "Extension Events", and during the operational phase "Intervening Events" or "Government Extension Events".
48 What constitutes a government-related party will depend on the nature of the project, although it is intended to capture government employees, consultants and other parties at the site which are appointed by government or whom government effectively controls (for example, as a result of delivering the core services). The focus of that risk will depend on the nature of each of the Contracted services and core services and the level of interface between them.
49 This is intended to also capture ancillary services incidental to or otherwise in support of the core services.
50 Government's role as contracting party is separate from its role as being responsible for the general administration of government affairs. Accordingly, the Relief Events in paragraph (ii) only capture acts or omissions (including breaches) of government in its capacity as a contracting party, not acts and omissions carried out in its role as general administrator of government affairs. Please also refer to paragraph 1.6.4 of Chapter 1 (Contractual issues).
51 If a Relief Event results in a specific number of extensions (in days) to the target date for a development approval, government and the private party will have the right to terminate the project agreement on the basis of a private party default or, in lieu of termination, government will have a right to initiate a Modification removing the affected site from the project.