(a) (Extension of time): Subject to clause 26.14 and clauses 35.8(d) to 35.8(f), the parties acknowledge and agree that, where Project Co will be delayed from carrying out the Development Activities by a Modification or deemed Modification in a manner which will delay the achievement of Acceptance, Project Co will be entitled to an extension of time to the Date for Acceptance for the period of the delay.
(b) (Right to agree or determine): Any Modification for which Project Co is entitled to an extension of time under clause 35.8(a):
(i) may be agreed by the State and Project Co prior to the State issuing a Modification Order; or
(ii) subject to clause 35.10, must otherwise must be determined by the Independent Reviewer in accordance with clause 35.8(c)(ii).
(c) (Failure to agree): If the State and Project Co do not agree on the applicable extension of time under clause 35.8(b), then:
(i) the State may issue a Modification Order in accordance with clause 35.5(c)(ii)B, for the non-time related aspects of the relevant claim, in which case Project Co must proceed with the Modification in accordance with the Modification Order;
(ii) the State or Project Co may have the Independent Reviewer determine any extension to the relevant Date for Acceptance to which Project Co is entitled as a consequence of the Modification Order; and
(iii) the State will issue a further Modification Order including the extension of time (if any) determined by the Independent Reviewer under clause 35.8(c)(ii) and any compensation determined by the State under clause 35.8(g).
(d) (Conditions precedent to extensions of time): It is a condition precedent to Project Co's entitlement to an extension of time for a Modification or an event which is deemed to be a Modification under this Deed for which Project Co is entitled or required to submit a Modification Proposal that:
(i) Project Co has submitted a Modification Proposal in accordance with the relevant timeframe specified in this Deed which includes the claim for an extension of time;
(ii) Project Co will be delayed from carrying out the Development Activities by the relevant Modification or deemed Modification in a manner which will delay the achievement of Acceptance;
(iii) the relevant Modification or deemed Modification will cause activities on the critical path contained in the then current Development Phase Program to be delayed; and
(iv) Project Co, at the time it submits the relevant Modification Proposal, submits an updated Development Phase Program to the State and the Independent Reviewer which:
A. complies with all the relevant requirements of this Deed;
B. takes into account the impact of the relevant Modification or deemed Modification; and
C. contains a level of detail which is sufficient to enable the State or the Independent Reviewer (as applicable) to determine Project Co's entitlement to an extension of time (where applicable).
(e) (Independent reviewer): The Independent Reviewer will determine whether the requirements of this clause 35.8(e) have been satisfied unless otherwise agreed by the State and Project Co.
(f) (Updated Development Phase Program): If the Independent Reviewer determines that the updated Development Phase Program in accordance with clause 35.8(d)(iv) does not comply with the requirements of that clause, the Independent Reviewer must notify Project Co of that determination together with detailed reasons for the non-compliance, within 5 Business Days after receipt of the relevant Modification Proposal and Project Co will be entitled to update the Development Phase Program in accordance with clauses 26.8(d) to 26.8(g) as if it was an updated Development Phase Program submitted under clause 26.8(a)(iii).
(g) (Compensation for extension of time): Subject to clauses 26.14 and 35.8(h), to the extent that:
(i) the parties have agreed; or
(ii) the State or the Independent Reviewer has determined,
an extension of time to the Date for Acceptance for a Modification in accordance with this clause 35.8, in addition to any amounts payable in accordance with clause 35.7, Project Co will be entitled to claim compensation as set out in Item 11 of Table 1 of the Change Compensation Principles for that extension of time, which will be calculated and determined by the Independent Reviewer in accordance with the Change Compensation Principles.
(h) (Delay Compensation limited): Where the Modification is for the repair or reinstatement of loss or damage to the Project Assets, Project Co's entitlement to compensation will be limited in accordance with clause 42.4.