Compensable Extension Events, which are a subcategory of Extension Events, are:
• a limited category of events which are generally within the control of the State; or
• risks that are considered to be better managed or mitigated by the State.
Accordingly, they are events in respect of which the State retains time and cost risk.
Extension Events that are not Compensable Extension Events are neutral events such as Force Majeure Events in respect of which the risk allocation is shared with the State, whereby the Date for Commercial Acceptance is extended, but Project Co has no, or more limited, entitlement to compensation or obtains compensation through another mechanism under the Project Deed, such as where an Uninsurable Risk or Day 1 Uninsurable Risk causes loss or damage to the Project Assets.
The following are conditions precedent to Project Co's entitlement to an extension of time for Extension Events:
• Project Co submits a Change Notice within the timeframe specified in clause 26.7 and otherwise in accordance with the Change Compensation Principles;
• Project Co can demonstrate that:
- it has been or will be delayed from carrying out the Development Activities by the relevant Extension Event in a manner which will delay the achievement of Acceptance; and
- the relevant Extension Event has caused or will cause activities on the critical path contained in the then current Development Phase Program to be delayed; and
• Project Co, at the time it submits the relevant Change Notice, submits an updated Development Phase Program which:
- takes into account the impact of the relevant Extension Event; and
- contains a level of detail which is sufficient to enable the Independent Reviewer to determine Project Co's entitlement to an extension of time.
If the Independent Reviewer determines that the updated Development Phase Program does not comply with the requirements set out above, Project Co must, within 10 Business Days after receipt of the Independent Reviewer's notice, submit an updated Development Phase Program.
If Project Co:
• does not submit an updated Development Phase Program, Project Co will not be entitled to claim an extension of time for the relevant Extension Event; or
• submits an updated Development Phase Program and the Independent Reviewer determines that the updated Development Phase Program:
- addresses the non-compliances previously notified by the Independent Reviewer, Project Co will be deemed to have met the requirements of the condition precedent in respect of the submission of the updated Development Phase Program; or
- does not address the non-compliances previously notified by the Independent Reviewer, Project Co will not be entitled to claim an extension of time for the relevant Extension Event.
The PV Standard Project Deeds provide one opportunity for Project Co to re-submit an updated Development Phase Program in circumstances where the Independent Reviewer determines that the Development Phase Program does not comply with the extension of time conditions precedent. This is so that Project Co is not significantly prejudiced by a minor non-conformance in a complex Development Phase Program which is potentially unrelated to an extension of time claim.
If the conditions precedent (as set out above) have been satisfied, either party may ask the Independent Reviewer to extend the relevant Date for Acceptance by a reasonable period determined by the Independent Reviewer. The Independent Reviewer may give interim determinations of Project Co's entitlement to an extension of time notwithstanding that the effects of the relevant Extension Event are continuing.