(a)
Project Co shall not:
(i)
terminate or agree to the termination of all or part of any Ancillary Document, except pursuant to Sections 32.3, 45.5, 59.3 and 60.2 or otherwise to prevent or cure a Project Co Event of Default (provided that commercially reasonable alternative measures would not prevent or cure such Project Co Event of Default);
(ii)
make or agree to any amendment, restatement or other modification of any Ancillary Document that materially adversely affects Project Co?s ability to perform its obligations under this Project Agreement or that has the effect of increasing any liability of HMQ, whether actual or potential;
(iii)
breach its obligations (or waive or allow to lapse any rights it may have) or permit others to breach their obligations (or waive or allow to lapse any rights they may have) under any Ancillary Document, that materially adversely affect Project Co?s ability to perform its obligations under this Project Agreement or that have the effect of increasing any liability of HMQ, whether actual or potential; or
(iv)
enter into, or permit the entry by any other person into, any agreement replacing all or part of any Ancillary Document, except in the circumstances referenced in Section 7.2(a)(i),
without the prior written consent of HMQ, provided that, where consent is requested pursuant to Section 7.2(a)(i) or 7.2(a)(iv), such consent shall not be withheld, and shall be provided within a reasonable time, where the relevant matter referred to in Section 7.2(a)(i) or 7.2(a)(iv) will not materially adversely affect Project Co?s ability to perform its obligations under this Project Agreement or have the effect of increasing any liability of HMQ, whether actual or potential. In the event of termination or agreement to the termination of all or part of any Ancillary Document as described in Section 7.2(a)(i) or any agreement replacing all or part of any Ancillary Document as described in Section 7.2(a)(iv), Project Co shall, to the extent applicable, comply with all provisions herein applicable to changes in Project Co Parties, including Section 59.3.
7.3
Changes to Lending Agreements and Refinancing
(a)
Subject to the terms of the Lenders? Direct Agreement, Project Co shall not terminate, amend or otherwise modify the Lending Agreements, or waive or exercise any of its rights under the Lending Agreements, if, at the time such action is contemplated and effected, it would materially adversely affect Project Co?s ability to perform its obligations under this Project Agreement or the Project Documents or have the effect of increasing any liability of HMQ, whether actual or potential, unless:
(i)
such action is a Permitted Borrowing; or
(ii)
such action is a Refinancing, other than a Mandatory Refinancing, effected in accordance with the provisions of Schedule 28 - Refinancing.
7.4
Compliance with Lending Agreements
(a)
Project Co shall keep the Lending Agreements in good standing to the extent necessary to perform its obligations under this Project Agreement and the Project Documents, and shall ensure that none of the terms and conditions of the Lending Agreements shall prevent Project Co from performing its obligations under this Project Agreement or the Project Documents.
(a)
HMQ shall, at its own cost and risk:
(i)
perform all of its obligations under, and observe all provisions of, this Project Agreement in compliance with Applicable Law; and
(ii)
cooperate with Project Co in the fulfillment of the purposes and intent of this Project Agreement, provided, however, that HMQ shall not be under any obligation to perform any of Project Co?s obligations under this Project Agreement.
(b)
During the Operational Term, the predominant uses of the Parkway to be permitted by HMQ shall be as a public roadway (in respect of the Roads), as public park and recreational lands (in respect of the parklands comprising the Parkway), and for ancillary uses compatible with the foregoing.
(c)
HMQ shall, and shall cause all HMQ Parties to, take reasonable steps to minimize undue interference with the provision of the Project Operations by Project Co or any Project Co Party.
(d)
HMQ shall, at the expense of Project Co, take such reasonable steps as Project Co may request to facilitate access for Project Co to lands not forming part of the Lands to the extent Project Co may reasonably require to perform the Project Operations, provided that Project Co has demonstrated, to the reasonable satisfaction of HMQ, that it has not been able to gain such access through the use of its own commercially reasonable efforts.
(e)
Nothing in this Project Agreement shall in any way fetter the right, authority and discretion of HMQ or any Province Person in fulfilling its statutory or other functions under Applicable Law, and Project Co understands and agrees that nothing in this Project Agreement shall preclude IO, as agent for HMQ, (or any designate appointed pursuant to Section 63.1 of this Project Agreement) from performing, discharging or exercising its duties, responsibilities, and powers under Applicable Law. Project Co further agrees that it shall comply, and shall cause all relevant Project Co Parties to comply, with all written directions issued by or on behalf of IO, as agent for HMQ, (or any designate appointed pursuant to Section 63.1 of this Project Agreement) from time to time.
8.2
HMQ Permits, Licences and Approvals
(a)
HMQ shall, at its own cost and risk:
(i)
obtain on or before Financial Close (except for the road closures described in item 3 of Appendix 1 – HMQ Permits, Licences and Approvals to Schedule 1 – Definitions and Interpretation, which shall be obtained on or before October 1, 2011, maintain, and, as applicable, renew all HMQ Permits, Licences and Approvals which may be required for the performance of the Project Operations; and
(ii)
comply with all Permits, Licences and Approvals in accordance with their terms.
(b)
HMQ shall, at its own cost, provide or cause to be provided such information, documentation, and administrative assistance as Project Co may request and as HMQ may reasonably be able to provide, and shall execute such applications as are required to be in its name, to enable Project Co to obtain, maintain or renew any Project Co Permits, Licences and Approvals or to demonstrate compliance with any Permits, Licences and Approvals, provided that HMQ shall not be responsible for obtaining or for any delay in obtaining or for the failure of Project Co to obtain any Project Co Permit, Licence or Approval, unless such delay or failure is caused by any act or omission of HMQ or any HMQ Party. For greater certainty, HMQ shall not be obligated to:
(i)
invoke Crown immunity or exercise any other of its legal rights in order to avoid or eliminate the requirement to obtain any Permits, Licences and Approvals; and
(ii)
automatically grant Project Co Permits, Licences and Approvals for which it is the authorizing entity and will apply its usual procedures and criteria in considering applications from Project Co for such Project Co Permits, Licences and Approvals.
(c)
Notwithstanding the provisions of Section 9.4(a)(i), HMQ shall be responsible for all designations, assumptions, road closures, transfers and any other applicable requirements relating to the Parkway which can only be effected by HMQ pursuant to the Public Transportation and Highway Improvement Act (Ontario) or the Highway Traffic Act (Ontario), provided that Project Co shall, at its own cost, provide or cause to be provided such information, documentation, and technical or administrative assistance as HMQ may request and as Project Co may reasonably be able to provide to enable HMQ to effect such requirements.
9.
PROJECT CO RESPONSIBILITIES
(a)
Project Co shall not engage in any activities which are not specifically related to, required by and conducted for the purpose of the Project without the prior written consent of HMQ, in its sole discretion.
(a)
Project Co shall, at its own cost and risk:
(i)
observe all provisions of this Project Agreement in compliance with Applicable Law;
(ii)
perform all Project Operations:
(A)
in compliance with Applicable Law;
(B)
in compliance with all Permits, Licences and Approvals and so as to preserve the existence and continued effectiveness of any such Permits, Licences and Approvals;
(C)
so as to satisfy the Output Specifications;
(D)
in accordance with Good Industry Practice;
(E)
in a manner consistent with the Quality Plans and the Project Co Proposal Extracts;
(F)
in a timely and professional manner;
(G)
with due regard to the health and safety of persons and property;
(H)
subject to the other provisions of this Project Agreement, in a manner which will not impair the ability of HMQ or any Province Persons to comply with Applicable Law;
(I)
subject to the other provisions of this Project Agreement, in a manner which will not impair the performance of the Governmental Activities; and
(J)
in accordance with all other terms of this Project Agreement; and
(iii)
cooperate with HMQ in the fulfillment of the purposes and intent of this Project Agreement, provided however that Project Co shall not be under any obligation to perform any of HMQ?s obligations under this Project Agreement.
(a)
Project Co shall not be relieved of any liability or obligation under this Project Agreement by the appointment of any Project Co Party, and Project Co shall cause each Project Co Party, to the extent such Project Co Party performs or is specified hereunder to perform the Project Operations, to comply with the obligations of Project Co hereunder in the same manner and to the same extent as Project Co.
9.4
Project Co Permits, Licences and Approvals
(a)
Project Co shall, at its own cost and risk:
(i)
obtain, maintain, and, as applicable, renew all Project Co Permits, Licences and Approvals which may be required for the performance of the Project Operations; and
(ii)
comply with all Permits, Licences and Approvals in accordance with their terms.
(b)
Where Project Co Permits, Licences and Approvals have requirements that may impose any conditions, liabilities or obligations on HMQ or any Province Person, Project Co shall not obtain, amend or renew (other than upon the same terms and conditions) such Project Co Permits, Licences and Approvals without the prior written consent of HMQ, provided that neither HMQ nor any Province Person shall be responsible for obtaining or for the failure of Project Co to obtain any Project Co Permit, Licence or Approval. HMQ shall comply, or shall require compliance, with any conditions, liabilities or obligations as are imposed on HMQ or any Province Person by the requirements of any Project Co Permit, Licence or Approval obtained with HMQ?s consent under this Section 9.4(b).
(c)
Project Co shall, at its own cost, provide or cause to be provided such information, documentation, and administrative assistance as HMQ may request and as Project Co may reasonably be able to provide, and shall execute such applications as are required to be in its name, to enable HMQ to obtain, maintain or renew any HMQ Permits, Licences and Approvals or to demonstrate compliance with any Permits, Licences and Approvals, provided that Project Co shall not be responsible for obtaining or for any delay in obtaining or for the failure of HMQ to obtain any HMQ Permit, Licence or Approval, unless such delay or failure is caused by any act or omission of Project Co, any Project Co Party or any other person for whom Project Co is responsible at law.
(a)
Project Co shall:
(i)
comply with the Safety Management Plan;
(ii)
keep the Lands in a safe and orderly state, as appropriate in accordance with Good Industry Practice, to avoid danger to persons on the Lands and in the immediate vicinity of the Lands;
(iii)
take such measures as are reasonable in accordance with Good Industry Practice to maintain and secure the Lands and the Site to prevent access prior to Substantial Completion to the Lands, and following Substantial Completion to the Site, of any persons or creatures not entitled to be there;
(iv)
comply, and cause each Project Co Party to comply, with Applicable Law relating to health and safety, including without limitation the Occupational Health and Safety Act (Ontario) and all regulations thereto;
(v)
with respect to the Works, perform, or cause a Project Co Party to perform, all of the obligations of the “constructor”, and indemnify HMQ and each other Province Person against any and all of the liabilities of the “constructor”, under the Occupational Health and Safety Act (Ontario) and all regulations thereto; and
(vi)
provide HMQ with a certificate of good standing from WSIB or any successor thereto once every 90 days from Financial Close until Final Completion, and from Final Completion until the Termination Date, at the request of the HMQ Representative from time to time.
(a)
Except as otherwise provided in this Project Agreement, HMQ shall not be responsible for the presence on or around the Site, or any other interference affecting the Site, the Project Infrastructure or the Project Operations, of any persons participating in civil disobedience, demonstration or protest action (“Protesters”) or any other persons otherwise not entitled to be on or around the Site (“Trespassers”). For greater certainty, the presence of, or interference by, any Protesters or Trespassers on or around the Site shall not be a breach of the obligation of HMQ to grant licence rights of use and access to Project Co on and over the Lands pursuant to Section 14, nor a breach of any other obligation, representation or warranty under this Project Agreement.
(b)
The management of any Protesters or Trespassers shall be the responsibility of Project Co throughout the Project Term (to the extent same is not otherwise the responsibility of the Police Service). If at any time during the Project Term any part of the Site is occupied, or access to the Site is prevented or interfered with, by Protesters or Trespassers, Project Co shall use all appropriate measures reasonable in the circumstances to manage such Protesters or Trespassers and promptly notify the HMQ Representative of such occurrence and of the action which Project Co proposes to take in respect thereof. Project Co may exercise any legal remedy available to it to remove Protesters or Trespassers from the Site, provided that Project Co shall give the HMQ Representative not less than 24 hours notice prior to commencing any legal proceedings for that purpose and shall continually update the HMQ Representative as to the status of any such proceeding in reasonable detail and at reasonable intervals and provided further that Project Co shall not give directly or indirectly to any Protester or Trespasser any inducement, monetary or otherwise, with a view to avoiding, limiting or influencing the manner of protest activities by that Protester or Trespasser or by other Protesters or Trespassers, provided that Project Co shall not by virtue of this Section 9.6(b) be prevented from entering into bona fide settlements of claims brought against it by Protesters or Trespassers which provide for reasonable payments in satisfaction of such claims or agreeing to any reasonable cost orders in any proceedings.
(c)
Project Co may request the assistance of HMQ (at the cost of Project Co) to remove Protesters or Trespassers where Project Co demonstrates to HMQ?s reasonable satisfaction that it has exercised all legal remedies available to it to remove the Protesters or Trespassers (provided that for this purpose Project Co may but shall not be obligated to prosecute injunctive or other judicial remedies beyond the court of first instance) and that the continued presence of the Protesters or Trespassers is having a material adverse effect on the conduct of the Works that Project Co is unable to mitigate. Following such request, HMQ shall notify Project Co whether HMQ can lawfully provide any assistance in relation to the removal of the Protesters or Trespassers that is not independently available to Project Co and, to the extent that such assistance can be lawfully provided, HMQ shall provide such assistance (at the cost of Project Co) to the extent it is, in the discretion of HMQ, reasonable and appropriate in the circumstances to do so.
9.7
Additional Works/Third Party Works
(a)
HMQ reserves the right to carry out Additional Works and to issue encroachment permits in respect of Third Party Works. HMQ may assign the methods and manner of construction (where applicable) of the Additional Works, the coordination and scheduling of the Additional Works and the Third Party Works and the safety training in respect of the Additional Works and the Third Party Works to Project Co.
(b)
In connection with the Additional Works, HMQ shall:
(i)
cause Additional Contractors to comply with the instructions of Project Co relating to matters of health and safety on the Site, methods and manner of construction (where applicable), and coordination and scheduling of the Additional Works with (A) the Initial Works during the performance of the Initial Works, and (B) at the request of HMQ, with the OM&R Work during the performance of the OM&R Work as HMQ considers appropriate taking into account the nature of the Additional Works and the potential for impact on the OM&R Work;
(ii)
enter into separate contracts with Additional Contractors under conditions of contract which are compatible with the conditions of this Project Agreement and provide for compliance by Additional Contractors with Section 9.7(d) and all directions of Project Co in respect of any matter regarding health and safety on the Site, methods and manner of construction (where applicable), and coordination and scheduling of the Additional Works during the performance of the Works in those cases where HMQ has requested Project Co to proceed in accordance with Section 9.7(d);
(iii)
ensure that insurance coverage is provided as would be required by a prudent owner similarly situated and coordinate such insurance with the insurance coverage of Project Co and in any event, such insurance shall provide for liability insurance of not less than $[REDACTED]; and
(iv)
take all necessary steps to avoid labour disputes or other disputes on the Project arising from the Additional Works.
(c)
In connection with the Third Party Works, HMQ shall:
(i)
cause Third Party Contractors to comply with the instructions of Project Co relating to matters of health and safety on the Site and coordination and scheduling of the Third Party Works with (A) the Initial Works during the performance of the Initial Works, and (B) at the request of HMQ, with the OM&R Work during the performance of the OM&R Work as HMQ considers appropriate taking into account the nature of the Third Party Works and the potential for impact on the OM&R Work;
(ii)
issue encroachment permits to Third Party Contractors containing conditions which are compatible with the conditions of this Project Agreement and provide for compliance by Third Party Contractors with Section 9.7(d) and all directions of Project Co in respect of any matter regarding health and safety on the Site and coordination and scheduling of the Third Party Works during the performance of the Works in those cases where HMQ has requested Project Co to proceed in accordance with Section 9.7(d); and
(iii)
require (A) that insurance coverage is provided as would be required by a prudent owner similarly situated and (B) that such insurance is coordinated with the insurance coverage of Project Co as it affects the Works and in any event, such insurance shall provide for liability insurance of not less than $[REDACTED].
(d)
In connection with the Additional Works and the Third Party Works, Project Co shall, during the performance of the Initial Works, and at the request of HMQ, during the performance of the OM&R Work as HMQ considers appropriate taking into account the nature of the Additional Works or the Third Party Works, as applicable, and the potential for impact on the OM&R Work:
(i)
where HMQ has assigned to Project Co the matters referred to in Section 9.7(a) and subject to the performance by HMQ of its obligations under Sections 9.7(b)(i) and (ii) or Sections 9.7(c)(i) and (ii), as applicable,
(A)
provide for the methods and manner of construction (where applicable) of the Additional Works and the coordination and scheduling of the Additional Works and the Third Party Works with the Works to be performed under this Project Agreement; and
(B)
for the Additional Contractors and in respect to such Additional Works and for the Third Party Contractors and in respect to such Third Party Works, in respect of each Phase, assume overall responsibility for compliance with all aspects of Applicable Law relating to health and safety at the Site, including all the responsibilities of the „constructor? under the Occupational Health and Safety Act (Ontario), prior to Phase Substantial Completion of the relevant Phase and, at the request of HMQ exercised in a manner consistent with the said Act, at any time that Project Co is acting as a „constructor? on the Site following Phase Substantial Completion of the relevant Phase;
(ii)
afford Additional Contractors and Third Party Contractors reasonable opportunity to introduce and store their products and use their construction machinery and equipment to execute the Additional Works and the Third Party Works, as applicable;
(iii)
participate with HMQ, Additional Contractors and Third Party Contractors, as applicable, in reviewing their construction schedules when directed to do so by HMQ; and
(iv)
where part of the Works is affected by or depends upon, for its proper execution, the Additional Works or the Third Party Works, promptly report to HMQ in writing and prior to proceeding with that part of the Works any readily apparent deficiencies in the Additional Works or the Third Party Works. Failure by Project Co to so report shall invalidate any claims against HMQ by reason of such readily apparent deficiencies.
(e)
In the case of Additional Works (other than Other Early Works) and Third Party Works carried out on any Phase prior to Phase Substantial Completion of the relevant Phase at the Site, if:
(i)
any Additional Contractors or Third Party Contractors cause any damage to the Initial Works;
(ii)
Project Co incurs any additional costs or there is any delay in the Works Schedule as a result of any Additional Contractors or Third Party Contractors not complying with the coordination, scheduling and safety instructions of Project Co; or
(iii)
subject to the performance by Project Co of its obligations under Section 9.7(d), if Project Co incurs any additional costs or there is any delay in the Works Schedule as a result of any such Additional Works (other than Additional Work that is required to meet the Output Specifications and provided such Additional Work is performed by such Additional Contractors in accordance with Good Industry Practice and in accordance with the terms of their respective contracts or engagements with HMQ) or any Third Party Works,
then any such delay in the Works Schedule or additional costs in respect of the Initial Works shall, subject to and in accordance with Section 40, be treated as a Delay Event and, subject to and in accordance with Section 41, be treated as a Compensation Event.
(f)
Claims, disputes, and other matters in question between Project Co and Additional Contractors or Third Party Contractors shall be dealt with in substantially the same manner as contemplated in Schedule 27 – Dispute Resolution Procedure, provided the Additional Contractors and Third Party Contractors have reciprocal obligations and HMQ has made commercially reasonable efforts to ensure that such provisions are included in the contracts with the Additional Contractors and the encroachment permits with the Third Party Contractors, as applicable. Project Co shall be deemed to have consented to arbitration of any dispute with any Other Contractor whose contract with HMQ or encroachment permit, as applicable, contains a similar agreement to arbitrate.
(g)
In connection with the Additional Works (other than Early Works), Project Co may request a Variation as follows:
(i)
Project Co shall have a period of 10 Business Days following notice from HMQ of HMQ?s intention to carry out such Additional Works including a reasonable description of such Additional Works to request a Variation if such Additional Works are (A) reasonably expected to make a warranty made in favour of Project Co from a Project Co Party or equipment supplier and given in accordance with Good Industry Practice, void or (B) reasonably expected to have a material negative consequence on Project Co?s ability to perform any of the Project Operations;
(ii)
if Project Co has made a request for a Variation in accordance with Section 9.7(g)(i), HMQ shall, within 10 Business Days of such request, either issue a Variation Enquiry or give notice to Project Co that it does not agree that a Variation is required;
(iii)
either Party may refer the question of whether a Variation is required as the result of a warranty risk or risk in the performance of the Project Operations for resolution in accordance with Schedule 27 - Dispute Resolution Procedure; and
(iv)
where HMQ has, under Section 9.7(g)(ii), given notice to Project Co that it does not agree that a Variation is required, HMQ shall, within 10 Business Days of a subsequent agreement or of a determination that a Variation is required, issue a Variation Enquiry and the relevant provisions of Schedule 22 - Variation Procedure shall apply except that:
(A)
HMQ shall not be entitled to withdraw any such Variation Enquiry unless HMQ determines not to proceed with the Additional Works or to proceed only in a manner that the Additional Works will not result in a warranty becoming void (as contemplated in Section 9.7(g)(i)) or will not result in any material negative consequence on Project Co?s ability to perform any of the Project Operations and Project Co has agreed with such conclusion, or the Parties otherwise agree; and
(B)
the Parties shall, without prejudice to their respective general obligations to comply with the terms of this Project Agreement, use commercially reasonable efforts to mitigate the adverse effects with respect to any void or voidable warranty and take commercially reasonable steps to minimize any increase in costs arising from any void warranty.
(h)
Placing, installing, applying or connecting the Additional Works performed by Additional Contractors and the Third Party Works performed by Third Party Contractors on and to the Works performed by Project Co will not relieve Project Co from its obligations under the Project Agreement with respect to the Works, except to the extent expressly described in any Variation Confirmation.
(i)
Project Co shall be responsible for any defect or failure in the performance of the works relating to the contract listed in subsection (a) of the definition of Other Early Works.
(j)
At Financial Close, HMQ shall assign all warranties and all other rights under the Other Early Works contracts to Project Co.
10.1
The HMQ Representative
(a)
The HMQ Representative shall exercise the functions and powers identified in this Project Agreement as functions or powers to be performed by the HMQ Representative and such other functions and powers of HMQ under this Project Agreement as HMQ may notify Project Co from time to time.
(b)
HMQ may, from time to time by written notice to Project Co, change the HMQ Representative. Such change shall have effect on the later of the date of delivery of such notice and the date specified in such notice.
(c)
During any period when no HMQ Representative has been appointed, or when the HMQ Representative is unable, through illness, incapacity or any other reason whatsoever, to perform the HMQ Representative?s functions under this Project Agreement, HMQ shall perform or may, by written notice to Project Co, promptly appoint an alternative HMQ Representative to perform the functions which would otherwise be performed by the HMQ Representative. Upon receipt of such written notice, Project Co and the Project Co Representative shall be entitled to treat any act of such alternative HMQ Representative which is permitted by this Project Agreement as being authorized by HMQ, and Project Co and the Project Co Representative shall not be required to determine whether authority has in fact been given.
(d)
The HMQ Representative shall not, except as otherwise provided in this Project Agreement, be entitled to modify or waive any provision of this Project Agreement or to authorize a Variation.
(e)
Subject to the limitations set out in Sections 10.1(a) and 10.1(d), unless otherwise notified in writing, Project Co and the Project Co Representative shall be entitled to treat any act of the HMQ Representative which is authorized by this Project Agreement as being authorized by HMQ, and Project Co and the Project Co Representative shall not be required to determine whether authority has in fact been given.
10.2
The Project Co Representative
(a)
Subject to the limitations set out in Section 10.2(d), the Project Co Representative shall have full authority to act on behalf of Project Co for all purposes of this Project Agreement.
(b)
Project Co may change the Project Co Representative with the prior written consent of HMQ.
(c)
During any period when the Project Co Representative is unable, through illness, incapacity or any other reason whatsoever, to perform the Project Co Representative?s functions under this Project Agreement, Project Co shall perform or may, by written notice to HMQ, promptly appoint an alternative Project Co Representative to perform the functions which would otherwise be performed by the Project Co Representative, provided that, Project Co must seek HMQ?s consent in accordance with Section 10.2(b) if such alternative Project Co Representative is in place for more than 180 days. Upon receipt of such written notice, HMQ and the HMQ Representative shall be entitled to treat any act of such alternative Project Co Representative which is permitted by this Project Agreement as being authorized by Project Co, and HMQ and the HMQ Representative shall not be required to determine whether authority has in fact been given.
(d)
The Project Co Representative shall not, except as otherwise provided in this Project Agreement, be entitled to modify or waive any provision of this Project Agreement.
(e)
Subject to the limitations set out in Section 10.2(d), unless otherwise notified in writing, HMQ and the HMQ Representative shall be entitled to treat any act of the Project Co Representative which is authorized by this Project Agreement as being authorized by Project Co, and HMQ and the HMQ Representative shall not be required to determine whether authority has in fact been given.
10.3
Communications to Representatives
(a)
At the time that a Party appoints or changes the appointment of the HMQ Representative or the Project Co Representative, as applicable, that Party shall also provide the other Party with contact information for delivery of communications to such representative. Communications to such representative shall not constitute notices to the Party appointing such representative.
(a)
The individuals who are critical to the performance of the Initial Works are identified in Schedule 9 - Key Individuals. Project Co shall use commercially reasonable efforts to ensure that such persons remain involved in the Initial Works in the capacity set out in Schedule 9 - Key Individuals and, in particular, will not, for the duration of the Initial Works, require or request any such person to be involved in any other project on behalf of Project Co or any Project Co Party if, in the reasonable opinion of HMQ such involvement would have a material adverse effect on the Initial Works.
(b)
The individuals who are critical to the performance of the OM&R Work are identified in Schedule 9 - Key Individuals. Project Co shall use commercially reasonable efforts to ensure that such persons remain involved in the OM&R Work in the capacity set out in Schedule 9 - Key Individuals and, in particular, will not, for the duration of the OM&R Work, require or request any such person to be involved in any other project on behalf of Project Co or any Project Co Party if, in the reasonable opinion of HMQ, such involvement would have a material adverse effect on the OM&R Work.
(c)
If Project Co considers it necessary to replace any individual identified in Schedule 9 - Key Individuals, Project Co shall provide HMQ with relevant information on the proposed replacement and shall consult with HMQ before finalizing the appointment of such replacement. Project Co shall not replace any of the individuals identified in Schedule 9 - Key Individuals without the prior written consent of HMQ, which consent shall not be withheld or delayed where the proposed replacement is suitably qualified and experienced.
(d)
If HMQ determines, acting reasonably, that it is in the best interests of HMQ that any individual identified in Schedule 9 - Key Individuals be replaced, HMQ shall notify Project Co (including a detailed explanation of the reasons for such determination), and, within 30 days of receipt by Project Co of such notice, Project Co shall provide HMQ with relevant information on the proposed replacement and shall consult with HMQ before finalizing the appointment of such replacement. Project Co shall not replace any of the individuals identified in Schedule 9 - Key Individuals without the prior written consent of HMQ, which consent shall not be withheld or delayed where the proposed replacement is suitably qualified and experienced.
(a)
The Parties shall, within 30 days following the Initial Works Commencement Date, establish a committee (the “Works Committee”) consisting of:
(i)
the HMQ Representative;
(ii)
3 representatives appointed by HMQ from time to time; and
(iii)
the following 2 representatives appointed by Project Co:
(A)
the Project Co Representative; and
(B)
1 representative of the Construction Contractor.
(b)
The Independent Certifier shall be entitled, but not required, to attend meetings as a non-voting member of the Works Committee. Members of the Works Committee may invite, on prior notice to all members, such advisors and consultants as they require from time to time to attend meetings and provide briefings to the Works Committee.
(c)
1 of the representatives of HMQ shall be the chairperson of the Works Committee.
(a)
The Works Committee shall assist the Parties by promoting cooperative and effective communication with respect to matters related to the Initial Works. The Works Committee shall interface with the Parkway Management Committee as and when required.
(b)
The Works Committee shall be responsible for receiving and reviewing all matters related to the Initial Works, including:
(i)
any design, construction and commissioning issues;
(iii)
any issues arising from reports or documents provided by Project Co or the Independent Certifier;
(iv)
any quality assurance and safety issues;
(vi)
any special matters referred to the Works Committee by HMQ or Project Co;
(vii)
any community and media relations issues in accordance with Schedule 18 Communications Protocol; and
(viii)
any other issues pertaining to the Initial Works.
(c)
Subject to Section 11.2(d), any unanimous decision of the Works Committee shall be final and binding on the Parties. If the Works Committee is unable to reach a unanimous decision, either Party may refer the matter for resolution in accordance with Schedule 27 - Dispute Resolution Procedure.
(d)
The Works Committee shall not have authority to make decisions with respect to or approve:
(i)
any amendment to or waiver of any provision of this Project Agreement;
(ii)
any change to a major milestone date set out in the Works Schedule, a Scheduled Phase Substantial Completion Date, the Scheduled Substantial Completion Date or the Scheduled Final Completion Date;
(iv)
any change that may materially adversely affect Project Co?s ability to achieve any Phase Substantial Completion by the applicable Scheduled Phase Substantial Completion Date, Substantial Completion by the Scheduled Substantial Completion Date, any Phase Final Completion by the applicable Scheduled Phase Final Completion Date or Final Completion by the Scheduled Final Completion Date; or
(v)
any matter with respect to which HMQ has a right of consent or in respect of which HMQ may exercise discretion pursuant to this Project Agreement.
11.3
Term of Works Committee
(a)
Unless otherwise agreed, the Works Committee shall operate only until the Final Completion Date.
11.4
Replacement of Committee Members
(a)
HMQ shall be entitled to replace any of its representatives on the Works Committee by written notice to Project Co. HMQ will use commercially reasonable efforts to deliver prior written notice of any such replacements to Project Co. Project Co may replace any of its representatives on the Works Committee with the prior written consent of HMQ.
11.5
Procedures and Practices
(a)
The members of the Works Committee may:
(i)
adopt such procedures and practices for the conduct of the activities of the Works Committee as they consider appropriate from time to time;
(ii)
invite to any meeting of the Works Committee such other persons as the members of the Works Committee may agree;
(iii)
exclude from any meeting of the Works Committee such persons as the members of the Works Committee may agree; and
(iv)
receive and review reports from any person or organization agreed to by the members of the Works Committee.
(b)
Once established, the Works Committee shall meet at least once each month from the Initial Works Commencement Date until the Final Completion Date, unless otherwise agreed by the members of the Works Committee or the Parties.
(c)
Any one of the Project Co Representative and any of HMQ?s representatives on the Works Committee may convene a special meeting of the Works Committee at any time. Special meetings of the Works Committee may be convened on not less than 5 Business Days notice to all members of the Works Committee identifying the agenda items to be discussed at the special meeting, provided that, in an Emergency, a meeting may be called at any time on such notice as may be reasonable in the circumstances.
(d)
Unless otherwise agreed by the members of the Works Committee, the Works Committee shall meet at the Site, the Parkway, in the City of London Ontario or in any other location in Ontario. Meetings of the Works Committee may be held by means of such telephonic, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously. A person participating in a meeting by such means will be deemed to be present at such meeting, provided that each member of the Works Committee must attend in person at least once each calendar quarter.
(e)
2 representatives of HMQ, the HMQ Representative and the Project Co Representative shall constitute a quorum at any meeting of the Works Committee. A quorum of members may exercise all the powers of the Works Committee. The members shall not transact business at a meeting of the Works Committee unless a quorum is present.
(f)
Minutes of all meetings, recommendations and decisions of the Works Committee, including those made by telephone or other form of communication, shall be recorded and maintained by Project Co. Project Co shall circulate copies of such minutes within 5 Business Days of the holding of the meeting or the making of the recommendation or decision. Unless HMQ notifies Project Co within 5 Business Days of receipt of the minutes that HMQ disagrees with the contents of the minutes, HMQ and Project Co shall be deemed to have approved such minutes. Project Co shall maintain a complete set of all minutes of the meetings of the Works Committee and shall make such minutes available for inspection by HMQ during regular business hours.
12.
PARKWAY MANAGEMENT COMMITTEE
(a)
The Parties shall, not later than 18 months prior to the first Scheduled Phase Substantial Completion Date, establish a committee (the “Parkway Management Committee”) to serve until the Termination Date consisting of:
(i)
3 representatives appointed by HMQ from time to time; and
(ii)
2 senior representatives of Project Co, one of whom shall be the Project Co Representative and the other shall be appointed by Project Co from time to time.
(b)
Members of the Parkway Management Committee may invite, on prior notice to all members, such advisors and consultants as they require from time to time to attend meetings and provide briefings to the Parkway Management Committee.
(c)
1 of the representatives of HMQ shall be the chairperson of the Parkway Management Committee.
(a)
The Parkway Management Committee shall assist the Parties by promoting cooperative and effective communication with respect to matters related to the Project Operations, both prior to and during the Operational Term. The Parkway Management Committee shall interface with the Works Committee as and when required.
(b)
The Parkway Management Committee shall be responsible for receiving and reviewing all matters related to the Project Operations (excluding the Initial Works), both prior to and during the Operational Term, including:
(i)
any joint review of the OM&R Work and the Output Specifications;
(ii)
any performance issues;
(iii)
any special matter referred to the Parkway Management Committee by HMQ or Project Co;
(iv)
any community and media relations issues in accordance with Schedule 18 Communications Protocol; and
(v)
any other issues pertaining to the Project Operations (excluding the Initial Works).
(c)
Subject to Section 12.2(d), any unanimous decision of the Parkway Management Committee shall be final and binding on the Parties. If the Parkway Management Committee is unable to reach a unanimous decision, either Party may refer the matter for resolution in accordance with Schedule 27 - Dispute Resolution Procedure.
(d)
The Parkway Management Committee shall not have authority to make decisions with respect to or approve:
(i)
any amendment to or waiver of any provision of this Project Agreement;
(iii)
any change that may materially adversely affect Project Co?s ability to perform the OM&R Work or the performance by the relevant parties of any Governmental Activities; or
(iv)
any matter with respect to which HMQ has a right of consent or in respect of which HMQ may have discretion pursuant to this Project Agreement.
12.3
Replacement of Committee Members
(a)
HMQ shall be entitled to replace any of its representatives on the Parkway Management Committee by written notice to Project Co. HMQ will use commercially reasonable efforts to deliver prior written notice of any such replacement to Project Co. Project Co may replace any of its representatives on the Parkway Management Committee with the prior written consent of HMQ.
12.4
Procedures and Practices
(a)
The members of the Parkway Management Committee may:
(i)
adopt such procedures and practices for the conduct of the activities of the Parkway Management Committee as they consider appropriate from time to time;
(ii)
invite to any meeting of the Parkway Management Committee such other persons as the members of the Parkway Management Committee may agree;
(iii)
exclude from any meeting of the Parkway Management Committee such persons as the members of the Parkway Management Committee may agree; and
(iv)
receive and review reports from any person or organization agreed to by the members of the Parkway Management Committee.
(b)
Once established, the Parkway Management Committee shall meet at least once each month during the Operational Term, unless otherwise agreed by the members of the Parkway Management Committee or the Parties.
(c)
Any member of the Parkway Management Committee may convene a special meeting of the Parkway Management Committee at any time. Special meetings of the Parkway Management Committee may be convened on not less than 5 Business Days notice to all members of the Parkway Management Committee identifying the agenda items to be discussed at the special meeting, provided that, in an Emergency, a meeting may be called at any time on such notice as may be reasonable in the circumstances.
(d)
Unless otherwise agreed by the members of the Parkway Management Committee, the Parkway Management Committee shall meet at the Site, the Parkway, in the City of London, Ontario or in any other location in Ontario. Meetings of the Parkway Management Committee may be held by means of such telephonic, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously. A person participating in a meeting by such means will be deemed to be present at such meeting, provided that each member of the Parkway Management Committee must attend in person at least once each calendar quarter.
(e)
2 representatives of HMQ and 1 representative of Project Co shall constitute a quorum at any meeting of the Parkway Management Committee. A quorum of members may exercise all the powers of the Parkway Management Committee. The members shall not transact business at a meeting of the Parkway Management Committee unless a quorum is present.
(f)
Minutes of all meetings, recommendations and decisions of the Parkway Management Committee, including those made by telephone or other form of communication, shall be recorded and maintained by Project Co. Project Co shall circulate copies of such minutes within 5 Business Days of the holding of the meeting or the making of the recommendation or decision. Unless HMQ notifies Project Co within 5 Business Days of receipt of the minutes that HMQ disagrees with the contents of the minutes, Project Co and HMQ shall be deemed to have approved such minutes. Project Co shall maintain a complete set of all minutes of the meetings of the Parkway Management Committee and shall make such minutes available for inspection by HMQ during regular business hours.
(a)
Project Co shall comply with the provisions of Schedule 11 – Quality Management.
(a)
Effective from January 1, 2011 until the Termination Date and subject to this Section 14, HMQ hereby grants or has caused to be granted (except in respect of the After-Acquired Lands), or will grant or cause to be granted
(i)
in respect of the First After-Acquired Lands, on or prior to July 31, 2011, and
(ii)
in respect of the Second After-Acquired Lands, on or prior to December 31, 2012,
and shall continuously from and after such grants until the Termination Date grant or cause to be granted, to Project Co and all Project Co Parties such non-exclusive licence rights of use and access to, on and over the Lands and the Parkway as are required by Project Co and such Project Co Parties and sufficient to allow Project Co and such Project Co Parties to perform the Project Operations, including to perform Project Co?s obligations pursuant to Sections 9.5 and 9.6. Notwithstanding the previous sentence, if the Other Early Works described in clause (a) of the definition of Other Early Works have not been completed as of January 1, 2011, Project Co?s and the Project Co Parties? licence rights and access contemplated by this Section 14.1 in respect of the portion of the Lands on which such Other Early Works are being performed shall not begin until such Early Works have been completed and HMQ grants or causes to be granted to Project Co and the Project Co Parties licence rights and access in respect of the relevant portion of the Lands, which grant shall occur on or prior to February 14, 2011.
(b)
In respect of the First After-Acquired Lands, HMQ shall ensure that, on or before the dates set forth in Appendix 3 to Schedule 1 – Definitions and Interpretation and until the earlier of July 31, 2011 and the date upon which licence rights are granted pursuant to Section 14.1(a)(i) (the “Limited Access Period”), Project Co and all Project Co Parties have such access to, on and over the First After-Acquired Lands as is required by Project Co and any Project Co Party to allow for the performance of Investigations; provided that, in connection with the access contemplated in this Section 14.1(b),
(i)
Project Co acknowledges that:
(A)
during the Limited Access Period, HMQ will not have possession of the relevant First After-Acquired Lands;
(B)
Project Co is being given limited access to the First After-Acquired Lands, at its own risk, to enable it to conduct Investigations; and
(C)
the previous owners of the First After-Acquired Lands will continue to have possession of these lands during the Limited Access Period, and that Project Co's access will, therefore, not be exclusive, and it will be Project Co's responsibility to co-ordinate with and not impede or interfere with the use by such previous owners of the lands affected; and
(ii)
Project Co shall give HMQ not less that 72 hours notice prior to initial access to any First After-Acquired Lands in accordance with this Section 14.1(b).
During the Limited Access Period, Project Co will not, and will ensure that all Project Co Parties do not, violate or breach any Encumbrances, Title Encumbrances or Development Approvals affecting the First After-Acquired Lands, or violate or breach the provisions of any Applicable Laws. For greater certainty, HMQ?s rights with respect to the First After-Acquired Lands will not be affected during this period.
(c)
Subject to Project Co?s obligation to comply with the other terms and conditions set forth in this Project Agreement and the other Project Documents, Project Co shall ensure that each Project Co Party shall at all times, when entering the Lands, act in a manner consistent with the obligations of Project Co under the Project Agreement.
(d)
In consideration for the licence granted pursuant to Section 14.1(a), Project Co shall provide the Project Operations subject to and in accordance with this Project Agreement.
(e)
Without derogating from any of HMQ?s rights hereunder, HMQ acknowledges that, in respect of the Project Operations, Project Co and the Project Co Parties require, and HMQ shall provide access to the Lands without material interference by HMQ or any Province Person from the dates set forth in Section 14.1(a) until the Termination Date.
(f)
None of the rights granted pursuant to this Section 14.1 shall extend beyond the boundaries of the Lands, or to any lands other than the Lands, other than easements and similar interests of HMQ which benefit the Lands, obtained after Commercial Close, to the extent the same are necessary for the Project Operations.
(g)
The licence provided in this Section 14.1 shall automatically terminate as of the Termination Date.
(h)
For greater certainty, the licence provided in this Section 14.1 shall not entitle Project Co or any Project Co Party to extract any mineral from the Lands for use in the Project Operations.
(i)
Notwithstanding any other provisions of this Project Agreement, Project Co?s obligations under this Project Agreement which require rights of use and access to the Lands in order to be carried out do not become effective until such rights of use and access have been granted by HMQ to Project Co pursuant to this Section 14.1. For greater certainty,
(i)
Project Co shall have no obligation or authorization to commence the Initial Works until the Initial Works Commencement Date, and
(ii)
during the Limited Access Period, only Project Co?s obligations under Section 56 and all of Project Co?s obligations under the Project Agreement to notify HMQ of any adverse occurrence in relation to the applicable First After-Acquired Lands, whether caused by Project Co or otherwise, shall apply in respect of the First After-Acquired Lands.
14.2
Non-exclusive Licence/Development of Lands
(a)
Project Co acknowledges and agrees that the rights granted to Project Co and the Project Co Parties hereunder shall be non-exclusive and that HMQ and any person authorized by HMQ may occupy and possess the Lands and the Parkway without the prior consent of Project Co, including for the purposes of carrying out the Governmental Activities and the Other Works. In exercising such rights Project Co shall not, and shall require that the Project Co Parties shall not, except as permitted under this Project Agreement, disrupt the performance of the Governmental Activities or the Other Works.
(b)
Without limiting Section 14.2(a), Project Co acknowledges that HMQ may from time to time use or develop (including by way of subdivision), or permit the use or development of, or dispose of, portions of the Lands other than that portion of the Lands contained within the footprint of the Roads and those other portions of the Lands necessary for the performance of the Project Operations. To the extent that such use, development or disposition materially adversely interferes with Project Co?s licence rights hereunder or materially adversely interferes with Project Co?s ability to perform the Project Operations, such use, development or disposition shall, subject to and in accordance with Schedule 22 - Variation Procedure, result in a Variation.
(a)
Project Co acknowledges that HMQ reserves and retains (i) all rights to designate the name for the Parkway and any part of the Parkway; (ii) all rights to signage in relation to the Lands and the Parkway; and (iii) all rights, Trade-Marks, naming or branding regarding the Parkway or any part of the Parkway. It is agreed, however, that, with the prior written consent of HMQ, which may take into consideration any applicable governmental guidelines, including guidelines set out in Schedule 18 – Communications Protocol, Project Co, the Project Co Parties and the Senior Lenders may, for the period prior to Substantial Completion, erect and maintain signage (which may include such parties? logos and trade names) identifying their respective roles in connection with the development and construction of the Project.
(a)
Project Co agrees that it acquires no estate, right, title or ownership interest in the Lands or the Parkway or any other interest in land pursuant to this Project Agreement or otherwise, provided, that solely for the purposes of the obligation of Project Co to comply with the CLA, the license granted to Project Co of use and access to, on and over the Lands and the Parkway pursuant to Section 14.1 shall, for the duration of the performance of the Works, be an interest in the premises, and Project Co acknowledges and agrees that no disposition of an interest in the Lands and the Parkway arises as a result of the aforesaid grant.
14.5
Non-Disturbance Agreement
(a)
If HMQ mortgages, charges or otherwise encumbers the Lands, HMQ shall notify Project Co and, at the request of Project Co, provide Project Co with an agreement, in form satisfactory to Project Co, acting reasonably, executed by the mortgagee of the Lands permitting Project Co and the Collateral Trustee to access and use the Lands under the licence granted pursuant to this Section 14 and the Lenders? Direct Agreement, respectively, free from interference from the mortgagee or any person claiming by or through the mortgagee. This Section 14.5 shall not apply in respect of any portion of the Lands used or developed pursuant to Section 14.2(b) if neither the licence granted pursuant to this Section 14 nor the Project Operations pertain to such portion of the Lands.
14.6
Municipal Reconveyed Lands
(a)
HMQ shall cause the Municipal Reconveyed Lands to be conveyed to the applicable municipal Governmental Authority 12 months after the Final Completion Date.
(a)
Project Co shall perform all obligations under all Encumbrances and Title Encumbrances for or on behalf of HMQ, other than:
(i)
obligations which Project Co is not legally capable of performing for or on behalf of HMQ;
(ii)
obligations under any Encumbrance (which is not a Title Encumbrance) added after the date of this Project Agreement unless
(A)
such obligations are provided in the Output Specifications as obligations of Project Co; or
(B)
the Parties agree that such obligations are obligations of Project Co; or
(C)
such Encumbrances are necessary or desirable for HMQ?s purposes and do not materially interfere with the use of the Lands for purposes of the Project Operations; and
(iii)
obligations under any Encumbrance or Title Encumbrance which the City of Windsor, the Town of LaSalle, the Town of Tecumseh or the County of Essex, Ontario may formally relieve or waive, with the consent of HMQ, with respect to any Development Approval.
(b)
All Project Operations performed by or on behalf of Project Co, whether before, during or after the completion of the Initial Works, shall be performed in a manner which does not breach the Encumbrances, Title Encumbrances or any Development Approval.
(c)
Subject to Encumbrances that Project Co shall remove pursuant to Section 15.2, no act or omission by Project Co or any Project Co Party shall give rise to a right for any person to obtain title to or any interest in the Site or any part of it, except in accordance with the terms of this Project Agreement.
15.2
No Site Encumbrances
(a)
Project Co shall not create, incur, permit or suffer to exist any Encumbrance to be filed, issued or registered upon or against the Lands or any part thereof or any interest therein due to an act or omission of Project Co or any Project Co Party.
(b)
Project Co shall promptly notify HMQ of any Encumbrance which is not a Title Encumbrance as soon as it becomes aware thereof.
(c)
In the event that the Lands or any part thereof or any interest therein becomes subject to any Encumbrance due to an act or omission of Project Co or any Project Co Party which has not been consented to in writing by HMQ, Project Co shall immediately take all steps necessary to remove, vacate or discharge such Encumbrance. If such Encumbrance is not removed, vacated or discharged within 10 Business Days of the filing, issuance or registration of such Encumbrance then, without prejudice to any other rights or remedies it may have, HMQ will be at liberty to take whatever steps it deems necessary and appropriate to remove, vacate or discharge the Encumbrance, including payment of any amount owing or claimed thereunder, and seek immediate recovery from Project Co of the amount of any such payment and any associated costs, including legal costs (on a full indemnity basis), all of which shall be payable on demand.
(d)
In the event that the Lands or any part thereof or any interest therein is or becomes subject to any Encumbrance which is not a Title Encumbrance and which is not due to an act or omission of Project Co or any Project Co Party, prior to performing obligations under any such Encumbrance, Project Co shall notify HMQ of any such Encumbrance and HMQ shall:
(i)
cause the Encumbrance to be removed, vacated or discharged;
(ii)
perform the required obligations thereunder; or
(iii)
instruct Project Co to perform the required obligations thereunder.
(e)
If Section 15.2(d) requires Project Co to perform obligations under an Encumbrance which performance imposes costs or delays on performance of the Project Operations, such performance:
(i)
prior to Phase Substantial Completion of any relevant Phase shall, subject to and in accordance with Section 40, be treated as a Delay Event and, subject to and in accordance with Section 41, be treated as a Compensation Event; and
(ii)
following Phase Substantial Completion of any relevant Phase shall, subject to and in accordance with Schedule 22 – Variation Procedure, result in a Variation.
15.3
Construction Lien Act (Ontario)
(a)
The Parties acknowledge that the foregoing provisions of Section 15.2 shall apply to claims for lien made upon or against the Lands pursuant to the CLA and shall also apply to claims made against HMQ or the holdback under the CLA as though such a claim were an Encumbrance against the Lands as referred to therein.
(b)
Project Co shall withhold from each Subcontractor the holdbacks required under the CLA and shall deal with such holdbacks in accordance with the CLA and for the purposes of the CLA, the contracts entered into by and between Project Co and any Subcontractor in relation to the performance of the Works shall be considered a “contract” as defined in the CLA.
(c)
In furtherance of Section 15.3(b), Project Co shall, as a condition of final payment under any Subcontract for which lien rights or rights in respect of the holdback may be claimed under the CLA, require that a certificate of completion under Section 33(1) of the CLA for such Subcontract be issued and the relevant Subcontractor provide statutory declarations or other assurances confirming that all those engaged by the Subcontractor have been paid in accordance with Applicable Law.
(d)
Project Co shall follow the requirements of the CLA and Good Industry Practice for posting and advertising certificates of completion when issued.
(e)
[Intentionally Deleted]
(f)
Project Co shall promptly provide HMQ with a copy of any materials which are provided to the Lenders to evidence compliance with the CLA.
(g)
Upon request by HMQ, Project Co shall perform and deliver to HMQ a subsearch of title on the Lands or any part thereof. HMQ shall pay the reasonable costs of any such search except (i) a search that reveals Encumbrances that are not permitted by this Project Agreement, (ii) a search requested based on a reasonable suspicion that an Encumbrance that is not permitted by this Project Agreement has been registered on title to the Lands, and (iii) a search requested for the purpose of confirming that an Encumbrance that is not permitted by this Project Agreement has been discharged from the Lands.
16.1
Acceptance of Site Condition
(a)
Subject to Sections 6.4, 16.2, 16.3, and 16.4, Project Co acknowledges and agrees that it has investigated the Lands and the Other Existing Infrastructure, including the Background Information, prior to executing this Project Agreement and agrees to accept the Lands, the Other Existing Infrastructure and the Site Conditions on an “as is, where is” basis. Without limiting the generality of the foregoing, but subject to Sections 6.4, 16.2, 16.3, and 16.4, Project Co shall not be entitled to make any claim of any nature whatsoever against HMQ or any Province Person on any grounds relating to the Lands or the Other Existing Infrastructure, including the fact that incorrect or insufficient information on any matter relating to the Lands or the Other Existing Infrastructure was given to it by any person, whether or not a Province Person, unless the relevant person has given Project Co an express written entitlement to rely on information relating to the Lands provided by such person to Project Co.
(b)
Subject to Sections 6.4, 16.2, 16.3, and 16.4, Project Co acknowledges and agrees that it has and shall be deemed to have:
(i)
performed all necessary due diligence and investigation on the Lands and examined the Lands and their surroundings and any Other Existing Infrastructure, including having received all design data, warranties and all other applicable information relating to the Early Works (to the extent such information is available as of Commercial Close);
(ii)
performed all necessary due diligence and investigation on the Other Existing Infrastructure and satisfied itself prior to executing this Project Agreement as to the structural, environmental and general condition of such Other Existing Infrastructure;
(iii)
satisfied itself as to the presence of any Contamination on, in or under the Lands or migrating to or from the Lands;
(iv)
satisfied itself as to the adequacy of the rights of access to, from and through the Lands and any accommodation it may require for the purposes of fulfilling its obligations under this Project Agreement;
(v)
satisfied itself as to the possibility of interference by persons of any description whatsoever with access to or use of, or rights in respect of, the Lands; and
(vi)
satisfied itself as to the precautions, times and methods of working necessary to prevent any nuisance or interference, whether public or private, being caused to any third parties; and
(vii)
satisfied itself as to the nature of the Site Conditions, the ground and the subsoil, the level and quantity of groundwater, the form and nature of the Lands, the loadbearing and other relevant properties of the Lands, the risk of injury or damage to property affecting the Lands, the nature of the materials (whether natural or otherwise) to be excavated and the nature of the design, work and materials necessary for the execution and delivery of the Works.
(c)
Project Co further acknowledges and agrees that, other than as referred to or contained in this Project Agreement, no representations or warranties have been made, nor documentation delivered to Project Co or any Project Co Party, which would indicate that Project Co would be unable to perform the Project Operations in a lawful manner.
(a)
HMQ shall be responsible for Contamination on, in or under, or migrating to or from, the Lands, except for any such Contamination:
(i)
that was described in, or was properly inferable, readily apparent or readily discoverable from, the Advanced Environmental Reports or the Geotechnical Reports;
(ii)
that was described in the Preliminary Environmental Reports; or
(iii)
that is caused by any Parkway User (other than a Province Person), Project Co or any Project Co Party.
(b)
Upon the discovery of any Contamination, Project Co shall immediately inform the HMQ Representative and shall comply, and ensure compliance by all Project Co Parties, with all Applicable Law and Schedule 17 – Environmental Obligations in respect thereof:
(i)
at HMQ?s cost pursuant to Section 16.2(e), in respect of Contamination for which HMQ is responsible pursuant to Section16.2(a), and
(ii)
at its own cost in respect of Contamination for which it is responsible pursuant to Section
(c)
Except to the extent required to prevent or mitigate an Emergency or to comply with Applicable Law, Project Co shall not undertake any significant work pursuant to Section 16.2(b) in respect of Contamination for which HMQ is responsible pursuant to Section 16.2(a) until the HMQ Representative has been given a reasonable opportunity to review the nature and extent of the Contamination and has instructed Project Co to proceed with such work.
(d)
In the event that HMQ wishes Project Co to perform actions in respect of any Contamination which are in addition to any required pursuant to Section 16.2(b), then HMQ shall issue an instruction to Project Co specifying what action HMQ requires Project Co to take and Project Co shall promptly and diligently comply with all such instructions at HMQ?s cost pursuant to Section 16.2(e).
(e)
If Sections 16.2(b) or 16.2(d) require Project Co to perform any alteration, addition, demolition, extension or variation in the Project Operations as a result of Contamination for which HMQ is responsible pursuant to Section 16.2(a) or as a result of any instructions given by HMQ pursuant to Section 16.2(d) and which would not otherwise be required under this Project Agreement, then any such alteration, addition, demolition, extension or variation:
(i)
prior to Phase Substantial Completion of any relevant Phase shall, subject to and in accordance with Section 40, be treated as a Delay Event and, subject to and in accordance with Section 41, be treated as a Compensation Event; provided that, notwithstanding any provision to the contrary elsewhere in this Project Agreement, such matters shall be Cash Allowance Items and any resulting payments to be made to Project Co pursuant to Section 41 shall be payable to Project Co from the Cash Allowance Account; and
(ii)
following Phase Substantial Completion of any relevant Phase shall, subject to and in accordance with Schedule 22 - Variation Procedure, result in a Variation.
(f)
In the event that HMQ and Project Co do not agree as to the nature or extent of the Contamination or of the actions to be performed by Project Co pursuant to Section 16.2(b), such disagreement shall be referred for determination to an independent and suitably qualified and experienced person, acceptable to Project Co and HMQ, each acting reasonably (and the costs and expenses of retaining such person shall be borne by the unsuccessful Party). Such person?s decision shall be final and binding on the Parties, except to the extent that either Party alleges that such decision would result in non-compliance with Applicable Law or this Project Agreement, in which event either Party may refer the disagreement for resolution in accordance with Schedule 27 - Dispute Resolution Procedure.
16.3
Items of Geological, Historical or Archaeological Interest or Value
(a)
As between the Parties, all fossils, artifacts and other objects having artistic, historic, archaeological or monetary value, including human remains and burial sites, which may be found on or at the Lands are or shall be the sole and absolute property of HMQ.
(b)
HMQ shall be responsible for items referred to in 16.3(a) except for any such items:
(i)
that were described in, or were properly inferable, readily apparent or readily discoverable from, the Archaeological Reports; or
(ii)
that are found after Phase Substantial Completion of a Phase on or at the Lands forming part of such Phase.
(c)
Upon the discovery of any item referred to in Section 16.3(a), Project Co shall:
(i)
immediately inform the HMQ Representative of such discovery;
(ii)
take all steps not to disturb the item and, if necessary, cease any Project Operations in so far as performing such Project Operations would endanger the item or prevent or impede its excavation, take all necessary steps to preserve and ensure the preservation of the item in the same position and condition in which it was found, and comply, and ensure compliance by all Project Co Parties, with Applicable Law and all requirements of Governmental Authorities with respect to such discovery, including Schedule 19 Heritage Guidelines and Protocols:
(A)
at HMQ?s cost pursuant to Section 16.3(e), in respect of any such discovery for which HMQ is responsible pursuant to Section 16.3(b); and
(B)
at its own cost in respect of any such discovery for which it is responsible pursuant to Section 16.3(b).
(d)
In the event that HMQ wishes Project Co to perform actions in respect of any discovery of any item referred to in Section 16.3(a) which are in addition to any required pursuant to Section 16.3(c), then HMQ shall issue an instruction to Project Co specifying what action HMQ requires Project Co to take and Project Co shall promptly and diligently comply with all such instructions at HMQ?s cost pursuant to Section 16.3(e).
(e)
If Sections 16.3(c) or 16.3(d) require Project Co to perform any alteration, addition, demolition, extension or variation in the Project Operations as a result of any such discovery for which HMQ is responsible pursuant to Section 16.3(b) or as a result of any instructions given by HMQ pursuant to Section 16.3(d) and which would not otherwise be required under this Project Agreement, then any such alteration, addition, demolition, extension or variation (but in the case of Section 16.3(c), only to the extent it directly results in the interruption of the Initial Works during a continuous period of 14 days or more with respect to each such discovery) shall, subject to and in accordance with Section 40, be treated as a Delay Event and, subject to and in accordance with Section 41, be treated as a Compensation Event.
(f)
In the event that HMQ and Project Co do not agree as to the nature or extent of the actions required to be performed by Project Co pursuant to Section 16.3(c)(ii), such disagreement shall be referred for determination to an independent and suitably qualified and experienced person, acceptable to Project Co and HMQ, each acting reasonably (and the costs and expenses of retaining such person shall be borne by the unsuccessful Party). Such person?s decision shall be final and binding on the Parties except to the extent that either Party alleges that such decision would result in non-compliance with Applicable Law or this Project Agreement, in which event either Party may refer the disagreement for resolution in accordance with Schedule 27 - Dispute Resolution Procedure.
(a)
HMQ shall be responsible for any Species-at-Risk which may be found on, in or at the Lands, except for any Species-at-Risk the occurrence of which, in the location in which it is found, was described in the ESA Permits or the Environmental Assessments.
(b)
In respect of Species-at-Risk for which Project Co is responsible pursuant to Section 16.4(a), Project Co shall, at its own cost, comply, and ensure compliance by all Project Co Parties, with all Applicable Law and the provisions of Schedule 17 – Environmental Obligations (including the ESA Permits appended thereto). Upon the discovery of any Species-at-Risk for which HMQ is responsible pursuant to Section 16.4(a), Project Co shall:
(i)
immediately inform the HMQ Representative of such discovery; and
(ii)
comply, and ensure compliance by all Project Co Parties, with all Applicable Law and the provisions of Schedule 17 – Environmental Obligations in respect thereof, including taking all necessary steps to preserve the respective habitat and relocate the Species-atRisk at HMQ?s cost pursuant to Section 16.4(d).
(c)
In the event that HMQ wishes Project Co to perform actions which are in addition to any required pursuant to Section 16.4(b), then HMQ shall issue an instruction to Project Co specifying what action HMQ requires Project Co to take and Project Co shall promptly and diligently comply with all such instructions at HMQ?s cost pursuant to Section 16.4(d).
(d)
If Sections 16.4(b) or 16.4(c) require Project Co to perform any alteration, addition, demolition, extension or variation in the Project Operations as a result of the discovery of any Species-at-Risk for which HMQ is responsible pursuant to Section 16.4(a) or as a result of any instructions given by HMQ pursuant to Section 16.4(c) and which would not otherwise be required under this Project Agreement, then any such alteration, addition, demolition, extension or variation:
(i)
prior to Phase Substantial Completion of any relevant Phase shall, subject to and in accordance with Section 40, be treated as a Delay Event and, subject to and in accordance with Section 41, be treated as a Compensation Event; and
(ii)
following Phase Substantial Completion of any relevant Phase shall, subject to and in accordance with Schedule 22 - Variation Procedure, result in a Variation.
17.
GOVERNMENTAL AND THIRD PARTY FINANCIAL OBLIGATIONS
17.1
Governmental, Railway and Utility Company Fees
(a)
Project Co shall be responsible for all Financial Obligations under or in respect of all Project Co Permits, Licences and Approvals and HMQ shall be responsible for all Financial Obligations under or in respect of all HMQ Permits, Licences and Approvals, including, as applicable in either case, to the City of Windsor, the Town of LaSalle, the Town of Tecumseh, the County of Essex, any Utility Company, any Railway Company, any Governmental Authority or any third party in respect of the Project Operations, including:
(i)
any development charges relating to the Works, the Parkway or the Site;
(ii)
any engineering administration and inspection fees required in respect of works or services required to be performed;
(iii)
any security deposits required under any Permits, Licences and Approvals; and
(iv)
any other amounts payable under any Permits, Licences and Approvals.
(b)
The Parties agree that any refund, partial rebate or credit granted by the City of Windsor, the Town of LaSalle, the Town of Tecumseh, the County of Essex, any applicable Utility Company, any applicable Railway Company, any applicable Governmental Authority or any other third party relating to the Financial Obligations referred to in Section 17.1(a) shall be for the benefit of HMQ to the extent such Financial Obligations were paid by HMQ and shall be for the benefit of Project Co to the extent such Financial Obligations were paid by Project Co.
(a)
Where this Project Agreement requires Project Co to comply with a technical standard in respect of the design and construction aspects of the Project Operations, and that standard has changed between Commercial Close and the date that such compliance is required, then Project Co shall give notice to HMQ of such change. If, after such notice, HMQ requires compliance with the changed standard (rather than the standard applicable as of the date of Commercial Close), then, to the extent such change impacts the design and construction aspects of the Project Operations and would not have otherwise been taken into account by compliance with Good Industry Practice, such changed standard shall, subject to and in accordance with Schedule 22 - Variation Procedure, result in a Variation. If HMQ does not require compliance with the changed standard, then Project Co shall continue to comply with the standard applicable as of Commercial Close, without a Variation therefor. This Section 18 shall not apply where a change in a technical standard is also a Change in Law.
19.
COORDINATION AND NO DISRUPTION
(a)
Project Co shall perform the Project Operations so as to coordinate with:
(i)
subject to and in accordance with Section 9.7 (to the extent applicable), the operations of HMQ, any Province Person, any Governmental Authority or Other Contractor engaged in activities on or about the Lands;
(ii)
the construction, operation, maintenance and rehabilitation of the Plaza; and
(iii)
the operation, maintenance and rehabilitation of the 401.
(b)
Project Co shall use commercially reasonable efforts to minimize:
(i)
any interference with the operations of HMQ, any Province Person, any Governmental Authority or any Other Contractor, including the performance of the Governmental Activities and the Other Works;
(ii)
any interference with the construction, operation, maintenance and rehabilitation of the Plaza, and the operation, maintenance and rehabilitation of the 401; and
(iii)
any lane closures, traffic diversions or restrictions or other impairment of the public?s use and enjoyment of the Parkway.
20.
DESIGN AND CONSTRUCTION OBLIGATIONS
20.1
Overall Responsibility
(a)
Project Co shall perform and complete the Initial Works:
(i)
so as to satisfy the Output Specifications;
(ii)
in accordance with the Project Co Proposal Extracts;
(iii)
in accordance with the Design Data;
(iv)
in accordance with the Works Schedule; and
(v)
in accordance with the other terms and conditions of this Project Agreement.
(b)
Without prejudice to Section 20.1(a), but subject to the provisions of the OM&R Specifications, Schedule 20 - Payment Mechanism and Schedule 24 - Expiry Transition Procedure, if, at any time during the Project Term, any of the Initial Works, the Parkway or any parts thereof do not fully satisfy the Output Specifications and/or any other term or condition of this Project Agreement (other than the Project Co Proposal Extracts), Project Co shall, at its own cost and expense, rectify the Initial Works, the Parkway and any part thereof so that:
(i)
the Initial Works, the Parkway and all parts thereof shall, at all times, comply with and satisfy in full the Output Specifications and the other terms and conditions of this Project Agreement (other than the Project Co Proposal Extracts); and
(ii)
the Initial Works, the Parkway and all parts thereof will, at all times, be able to meet all safety and performance standards and other requirements set out in the Output Specifications.
20.2
Complete and Operational Parkway / Sequencing of Phases
(a)
Project Co shall design, engineer, construct and commission the Parkway so as to provide HMQ a complete and operational Parkway in accordance with the Output Specifications and the Project Co Proposal Extracts, and that will allow Project Co to perform the OM&R Work, all in accordance with and subject to the terms of this Project Agreement.
(b)
Project Co shall achieve Phase Substantial Completion of Phase One before achieving Phase Substantial Completion of Phase Two and shall achieve Phase Substantial Completion of Phase Two before achieving Phase Substantial Completion of Phase Three.
20.3
Development of Design
(a)
Project Co shall, at its own cost, develop and complete the design of the Parkway and all Design Data in accordance with the requirements of this Project Agreement, including Schedule 10Review Procedure and this Section 20.3.
(b)
The further development of the design and the process by which it is progressed must fully comply with the requirements of this Project Agreement.
(c)
In order to develop the detailed design of the Parkway, Project Co shall consult with the Stakeholders (which consultation requirements pursuant to the Environmental Assessments are further described in Schedule 17 – Environmental Obligations) and the HMQ Representative and the HMQ Design Team in an interactive process. If the result of any consultation with Stakeholders is a change to the scope, configuration or size of any New Parkway Infrastructure or a change in the Construction Activities, then such change shall, subject to and in accordance with Schedule 22 – Variation Procedure, result in a Variation; provided that, notwithstanding any provision to the contrary elsewhere in this Project Agreement, such change shall be a Cash Allowance Item and any resulting payments to be made to Project Co pursuant to Schedule 22 – Variation Procedure shall be payable to Project Co from the Cash Allowance Account.
(d)
The Parties agree that Appendix A to Schedule 10 - Review Procedure is an initial list of Design Data and other items that will require design review, which Design Data and other items shall include (to a scale required by the HMQ Representative):
(i)
a Design Criteria Summary (the “First Pre-final Design Development Submittals”), submitted prior to the Second Pre-final Design Development, and shall not be earlier than 45 Days after Financial Close;
(ii)
design development drawings, reports, schedules and specifications progressed from Commercial Close with extensive user group input, showing all architectural, engineering and landscape design information sufficient to allow for the development of working drawing documentation, submitted at:
(A)
[REDACTED]% completion (the “Second Pre-final Design Development Submittals”); and
(B)
[REDACTED]% completion (the “Final Design Development Submittals”),
each in respect of the development of the working drawings ((i) and (ii) collectively, the “Design Development Submittals”);
(iii)
working drawing documentation, being construction drawings, reports, schedules and specifications progressed from the Design Development Submittals, showing all architectural, engineering and landscape design information in accordance with the requirements of this Project Agreement, submitted at [REDACTED]% completion of the construction drawings (the “Construction Document Submittals”);
(iv)
all other documentation required pursuant to Schedule 10 - Review Procedure.
(e)
The Final Design Development Submittals and the Final Construction Document Submittals shall each be accompanied by a Technical Appraisal Form.
(f)
Project Co shall submit to the HMQ Representative for review in accordance with Schedule 10 Review Procedure all Design Data and other items listed in Sections 20.3(c) and 20.3(e).
(g)
The Parties agree that, with respect to the Design Development Submittals and the Construction Document Submittals, the period for review shall be 15 Business Days rather than the 10 Business Days prescribed in Section 2.2 of Schedule 10 - Review Procedure.
(h)
The Design Data and other items listed in Section 20.3(c) must contain, at a minimum, the following additional information:
(i)
identification of the stage of design or construction to which the documentation relates;
(ii)
all design or construction drawings and specifications necessary to enable the HMQ Representative to make an informed decision as to whether Project Co is permitted to proceed pursuant to Schedule 10 - Review Procedure;
(iii)
for each stage of the design or construction documentation, a schedule identifying all changes to the relevant documentation that has occurred from the previous stage of design or construction documentation; and
(iv)
where changes have been submitted, an indication of how the changes meet the requirements of this Project Agreement.
(i)
If Project Co commences or permits the commencement of the next level of design or construction of any part or parts of the Parkway prior to being entitled to proceed in accordance with Schedule 10 - Review Procedure and it is subsequently determined in accordance with Schedule 10 - Review Procedure or Schedule 27 - Dispute Resolution Procedure that the design or construction does not comply with this Project Agreement, then Project Co shall forthwith, at its own cost and risk, undo, remove from the Site, replace and restore, as applicable, any parts of the design or construction that do not comply with this Project Agreement.
(j)
Neither HMQ nor any Province Person will have any liability:
(i)
if a document submitted by Project Co and reviewed by HMQ, the HMQ Representative or the HMQ Design Team results in non-compliance with this Project Agreement by Project Co or a breach by Project Co of Applicable Law; or
(ii)
for any loss or claim arising due to any defect in any documents, drawings, specifications or certificates submitted by Project Co.
(k)
Project Co and HMQ will cooperate with each other in the design review process. Notwithstanding such cooperation by HMQ, such review shall not constitute acceptance of the Initial Works, and Project Co shall remain solely responsible for compliance in full with all requirements of this Project Agreement.
(l)
Project Co shall allow the HMQ Representative and the HMQ Design Team, at any time, a reasonable opportunity to view any items of Design Data, which shall be made available to the HMQ Representative and/or HMQ Design Team, as applicable, as soon as practicable following receipt of a written request from the HMQ Representative.
(a)
Within 10 Business Days after the Initial Works Commencement Date, Project Co and the Design Team shall attend a start up meeting (the “Start-Up Meeting”) with HMQ to set out the design development process in greater detail.
(b)
The agenda for the Start-Up Meeting shall include the following:
(i)
Project Co?s plan to develop a successful long-term partnership with HMQ for the purpose of supporting HMQ in achieving its vision, mission and core values;
(ii)
Project Co?s plan to ensure that the Initial Works are completed in accordance with the requirements set forth in this Project Agreement;
(iii)
Project Co?s process to ensure optimum design quality;
(iv)
Project Co?s approach to ensure that all Project Co Parties perform the Initial Works, as applicable, as a fully integrated team;
(v)
a proposed schedule of Works Submittals which is consistent with the Works Schedule and which provides for a progressive and orderly flow of Works Submittals from Project Co to the HMQ Representative to allow sufficient time for review of each Works Submittal by the HMQ Representative, and taking into account both the resources available to the HMQ Representative to conduct such review and whether delay in the review of the subject matter of the Works Submittal will have a material impact on Project Co?s ability to progress future anticipated Works Submittals and the Initial Works in accordance with the Works Schedule;
(vi)
Project Co?s plan to successfully integrate feedback from consultations with Stakeholders and the HMQ Design Team;
(vii)
Project Co?s approach to timing, construction, and adjustment; and
(viii)
a communication process that includes an electronic data room and the use of a computerized document tracking system that has the capacity to report, on request, the status of all design and construction documentation.
20.5
Design Review Meetings
(a)
In order to obtain input in the preparation of, and prior to submitting, the Design Development Submittals and the Construction Document Submittals, Project Co and the Design Team shall hold design review meetings (the “Design Review Meetings”) with HMQ and the HMQ Design Team upon the following terms:
(i)
the Project Co Representative shall arrange the Design Review Meetings in consultation with the HMQ Representative;
(ii)
all Design Review Meetings shall be held in London or Toronto, Ontario unless HMQ agrees otherwise in writing;
(iii)
the Parties shall cooperate to develop a reasonable schedule for the Design Review Meetings and shall incorporate such schedule into the Works Schedule;
(iv)
Project Co shall circulate to HMQ and the HMQ Design Team an agenda for each of the Design Review Meetings no later than 10 Business Days prior to the relevant Design Review Meeting;
(v)
in advance of a Design Review Meeting, Project Co may submit to the HMQ Design Team for comment any interim drafts of any designs or plans required under this Project Agreement, which submissions shall be used to inform HMQ on the development of Parkway design and provide an opportunity for dialog on compliance with the requirements of the Project Agreement. For greater certainty, interim submissions shall be informal and shall not be reviewed in accordance with Schedule 10 – Review Procedure.
(vi)
the Design Review Meetings shall be held in person, except where otherwise agreed by the Parties, acting reasonably;
(vii)
Project Co shall maintain minutes of the Design Review Meetings, including possible design solutions and changes in design, and, within 5 Business Days after each Design Review Meeting, Project Co shall provide to HMQ and the HMQ Design Team a copy of the minutes, together with a copy of any notes, comments, sketches, drawings, tracings, lay-outs, plans or diagrams prepared at the Design Review Meeting; and
(viii)
HMQ and Project Co agree that the subject matter of the Design Review Meetings shall not be regarded as Submittals to which Schedule 10 - Review Procedure applies, and that HMQ shall not be bound by the input provided in connection with the Design Review Meetings.
(b)
The Parties shall, together with the HMQ Design Team, hold Design Review Meetings prior to:
(i)
each of the Design Development Submittals; and
(ii)
each of the Construction Document Submittals.
(c)
The purpose of the Design Review Meetings is to facilitate the incorporation of HMQ input, involvement and feedback into the Design Data prior to submission of such Design Data in accordance with Schedule 10 – Review Procedure.
(a)
To the extent and in the manner provided by the Quality Documentation and other terms of this Project Agreement, all testing shall be carried out by a duly accredited and certified testing facility and organization. The HMQ Representative shall be given timely advance notice (being not less than 2 Business Days) of the date of such tests, except for categories of tests (if any) in respect of which the HMQ Representative gives written notice to Project Co that it does not require such notice. The HMQ Representative and any other HMQ Party at HMQ?s option shall be entitled to attend at any test. Any materials or Plant which fail such tests shall be rejected.
(b)
Project Co shall develop a test recording system which shall permit ready retrieval of all test readings and shall provide information relating to tests proposed, test methodology and test readings to the HMQ Representative on request.
(c)
With respect to continuous testing operations (such as concrete quality, structural concrete strengths, aggregate quality, compaction tests and bituminous material quality), Project Co shall provide to the HMQ Representative at regular intervals (not to exceed weekly unless otherwise agreed) test summary sheets and statistical analyses indicating strength and quality trends.
(a)
Project Co shall, at its own cost and expense, engage consultants to conduct activities as set forth in Part 2, Article 3 of the Design and Construction Specifications (the “Checking Team”).
(b)
The following expertise shall be included in the expertise of the Checking Team:
(i)
recognized expertise in:
(A)
the disciplines of geotechnical and structural engineering;
(B)
the analysis and design of all aspects of complex Structures;
(C)
the use of state-of-the-art geotechnical, structural, and soil-structure interaction modeling and software used for design and analysis of foundations; and
(D)
the review of designs to ensure compliance with Environmental Laws and other environmental requirements; and
(ii)
individuals who are registered or qualified to be registered as Professional Engineers in Ontario.
20.8
Performance of Design Obligations
(a)
In the design and engineering of the Parkway, Project Co, its consultants and the Project Co Parties shall, at a minimum, exercise the standard of care normally exercised by licensed or registered professional engineering and architectural personnel and other licensed or registered professionals, as applicable, having specialized knowledge and experience in performing design activities of a similar nature, scope and complexity.
(b)
Project Co shall ensure that all parts of the Initial Works shall, as required by Applicable Law, be performed or reviewed by licensed or registered professional engineers and architects registered to practice in the Province of Ontario. Such architects and engineers shall certify and, if required by Applicable Law, sign and seal, all designs, drawings and technical reports confirming that they comply with all prevailing design standards and design practices for such work in the Province of Ontario, all other applicable standards, specifications and codes, and as otherwise required by Applicable Law.
20.9
General Construction Obligations
(a)
Project Co is responsible for all construction means, methods and techniques used to undertake the Initial Works and must provide everything (including labour, plant, equipment and materials) necessary for the construction and commissioning of the Parkway, and other performance of the Initial Works.
(b)
Project Co shall in a timely and professional manner and in accordance with the requirements of this Project Agreement:
(i)
construct the Initial Works diligently, expeditiously and in a thorough and workman-like manner consistent with Schedule 11 – Quality Management;
(ii)
ensure that no works other than the Works under this Project Agreement are constructed on the Lands by Project Co or any person for whom Project Co is responsible at law;
(iii)
protect the Initial Works from all of the elements, casualty and damage;
(iv)
in respect of plant, equipment and materials incorporated in the Initial Works, use plant, equipment and materials that:
(A)
are of a kind that are consistent with the Output Specifications;
(B)
are new, of good quality and are used, handled, stored and installed in accordance with Applicable Law and Good Industry Practice with respect to health and safety so as not to be hazardous or dangerous; and
(C)
where they differ from the Output Specifications, have been substituted with HMQ?s prior written consent in accordance with Section 20.10.
(c)
Without limiting Project Co?s obligations pursuant to Sections 9.5 or 9.6 or Project Co?s indemnity pursuant to Section 56.1, Project Co shall, at all times throughout the progress of the Initial Works, be responsible for maintaining and securing the Site to prevent access onto the Site of any persons not entitled to be there, as determined by Project Co acting reasonably, and the licence granted to Project Co pursuant to Section 14.1 shall include rights for Project Co to do so.
(a)
Whenever equipment, components, materials, supplies, tools, and other items are specified or otherwise described in this Project Agreement by using the name or catalogue or model number of a particular manufacturer, fabricator, vendor or distributor, or any other material name or description, the naming or identification of the item is intended to establish the type and the minimum function and quality required, and equipment, components, materials, supplies, tools, and other items of other manufacturers, fabricators, vendors or distributors shall not be substituted without the prior written consent of HMQ, in its sole discretion.
(a)
Any and all items, documents and anything else required or specified by this Project Agreement in respect of the Initial Works to be submitted to, reviewed or otherwise processed by HMQ prior to Substantial Completion, including any and all subsequent revisions, amendments and changes thereto, shall be subject to review by HMQ pursuant to Schedule 10 - Review Procedure.
20.12
Construction Period Operations and Maintenance
(a)
Commencing on April 1, 2011, Project Co shall provide the operations and maintenance services described in Sections 1.1(c)(i) and (iii) of Schedule 15-3 – Operations, Maintenance and Rehabilitation for each Phase until Phase Substantial Completion of such Phase.
21.
ACCESS AND MONITORING
21.1
Access for Province Persons and HMQ Archaeologist
(a)
Subject to Section 21.1(b), but without limiting any of HMQ?s rights in respect of the Site or the Parkway, Project Co:
(i)
acknowledges and agrees that throughout the Project Term, HMQ, the Province Persons and their respective representatives, including Her Majesty the Queen in Right of Canada and the Auditor General of Canada, shall have unrestricted access to the Site and the Parkway and any workshop where materials, plant or equipment are being manufactured, prepared or stored at all reasonable times during normal working hours, including for the purposes of general inspection or audit, or of attending any test or study being carried out in respect of the Works, or to fulfill any statutory, public or other duties or functions; and
(ii)
shall, and shall ensure that the Project Co Parties shall, throughout the Project Term, give the archaeologist appointed by HMQ in respect of the Project, and each of its agents, representatives, contractors and employees (collectively, the “HMQ Archaeologist”) access to those parts of the Site and the Parkway as is necessary for the purpose of allowing the HMQ Archaeologist to monitor and inspect the excavation of the Site, provided always that such right of access shall be on reasonable prior notice to Project Co.
(b)
In exercising their access rights under Section 21.1(a), HMQ, the Province Persons, their respective representatives and the HMQ Archaeologist shall:
(i)
provide reasonable prior notice appropriate to the circumstances (other than for any offices or other facilities provided at the Site for the use of HMQ and/or Province Persons); and
(ii)
comply with all relevant safety procedures and any reasonable directions with regard to site safety that may be issued by or on behalf of the Project Co Representative from time to time.
21.2
Increased Monitoring
(a)
If, at any time during the Project Term, HMQ is of the opinion, acting reasonably, that there are defects in the Works or that Project Co has failed to comply, in any material respect, with the requirements of this Project Agreement (including the Output Specifications and the Project Co Proposal Extracts), HMQ may, without prejudice to any other right or remedy available to it, by notice to Project Co, increase the level of monitoring of Project Co from that set out in this Project Agreement to such level as HMQ considers reasonable taking into account the nature of the relevant defect or failure until such time as Project Co shall have demonstrated, to HMQ?s satisfaction, that it is capable of performing and will perform, in all material respects, its obligations under this Project Agreement. Project Co will compensate HMQ for any reasonable costs incurred as a result of such increased monitoring.
(a)
Project Co shall ensure that HMQ is afforded advance notice of, and that HMQ is afforded a full opportunity to witness, all inspection and test activity in accordance with the Inspection and Test Plan. If Project Co does not provide such notice and opportunity, Project Co shall at the request of HMQ uncover any relevant part of the Works which have been covered up or otherwise put out of view or remove any relevant part of the Works that have been proceeded with in order to permit HMQ to witness the relevant inspection or test activity. Project Co shall bear all costs of any such uncovering or removal, regardless of whether or not any defect is discovered in the relevant Works.
(b)
HMQ shall have the right, at any time during the Project Term, to request Project Co to uncover and inspect (or allow HMQ to inspect) any part or parts of the Works, or to require testing of any part or parts of the Works, where HMQ reasonably believes that such part or parts of the Works is or are defective or that Project Co has failed to comply with the requirements of this Project Agreement (including the Output Specifications, the Project Co Proposal Extracts and the Design Data) relevant to such part or parts of the Works, and Project Co shall comply with such request. When HMQ makes such a request, HMQ shall include reasonably detailed reasons with such request.
(c)
If an inspection shows that the relevant part or parts of the Works is or are defective or that Project Co has failed to comply with the requirements of this Project Agreement (including the Output Specifications, the Project Co Proposal Extracts and the Design Data) relevant to such part or parts of the Works, Project Co shall rectify all such defects and non-compliance diligently and at no cost to HMQ and Project Co shall not be entitled to any additional compensation or extension of time in relation thereto.
(d)
If an inspection shows that the relevant part or parts of the Works is or are not defective and that Project Co has complied with the requirements of this Project Agreement (including the Output Specifications, the Project Co Proposal Extracts and the Design Data) relevant to such part or parts of the Works, the exercise by HMQ of its rights pursuant to this Section 21.3:
(i)
prior to Phase Substantial Completion of any relevant Phase shall, subject to and in accordance with Section 40, be treated as a Delay Event and, subject to and in accordance with Section 41, be treated as a Compensation Event; and
(ii)
following Phase Substantial Completion of any relevant Phase shall, subject to and in accordance with Schedule 22 – Variation Procedure, result in a Variation.
21.4
No Relief from Obligations
(a)
The Parties acknowledge that the exercise by HMQ or the HMQ Representative of the rights under this Section 21 shall in no way affect the obligations of Project Co under this Project Agreement except as set out in this Section 21.
(a)
Subject to Section 21.5(b) and subject to and in accordance with Section 9.7 (to the extent applicable), Project Co shall ensure that throughout the Project Term, without prejudice to any access rights of any such person as a member of the general public or pursuant to Applicable Law:
(i)
any contractors, consultants or other persons authorized by the HMQ Representative or HMQ, including the Other Contractors, have access to those parts of the Site and the Parkway as is necessary for the purpose of carrying out the Other Works;
(ii)
the Independent Certifier has access to the Site and the Parkway to the extent required to perform its obligations pursuant to Schedule 6 - Independent Certifier Agreement;
(iii)
inspectors and other persons authorized to act on behalf of HMQ have access to the Site for inspection and acceptance purposes;
(iv)
all Other Contractors, including the owners or operators of any Third Party Facilities and their agents, have access to the Site and the Parkway at all reasonable times to perform Third Party Works and where applicable, in accordance with or to exercise any right or power or perform any duty or obligation under any Applicable Law or the Utility Agreements, Railway Orders or encroachment permits, provided that, wherever consistent with the requirements of Applicable Law and the requirements of this Project Agreement, Project Co may limit such access so as to not unnecessarily impede or restrict traffic flows or any Project Operations;
(v)
all Governmental Authorities and Emergency Service Providers have access to the Site and the Parkway in order to carry out any work (including surveys and inspections) in accordance with or to exercise any right or power or perform any duty or obligation under any Applicable Law and provided that, whenever consistent with the applicable requirements of such Governmental Authority, Emergency Service Providers or Applicable Law and the requirements of this Project Agreement (as the case may be), Project Co may limit such access so as to not unnecessarily impede or restrict traffic flows or any Project Operations; and
(vi)
any Province Person, Other Contractors, owners or operators of Third Party Facilities, Governmental Authorities, Emergency Service Providers, Utility Companies and Railway Companies are permitted to enter upon the Site and the Parkway for the purposes of access to and from any other lands and/or facilities adjacent to or in proximity to the Site and the Parkway (including any other highway) owned or operated by such person or in which such person has any interest, provided that, whenever consistent with the requirements of Applicable Law and the requirements of this Project Agreement, Project Co may limit such access so as to not unnecessarily impede or restrict traffic flows or any Project Operations.
(b)
In exercising their access rights under Section 21.5(a), each person referred to therein (except for Other Contractors, who shall instead comply with any instructions or procedures made by Project Co pursuant to Section 9.7) shall (except in the case of access rights described in Section 21.5(a) for the purpose of responding to an Emergency (for the purposes of this clause (b), references in the definition of “Emergency” to HMQ or the HMQ Representative shall be deemed to be references to the applicable Governmental Authority or Emergency Service Provider) and except to the extent inconsistent with the applicable requirements of such Governmental Authority or Emergency Service Provider):
(i)
provide reasonable prior notice appropriate to the circumstances;
(ii)
comply with all relevant health and safety procedures and any reasonable directions with regard to health and safety that may be issued by or on behalf of the Project Co Representative from time to time; and
(iii)
if reasonably required by Project Co, be accompanied by a representative of Project Co or a Project Co Party.
(a)
It is HMQ and not Project Co that grants to the general public the right to use the Parkway. Project Co shall use commercially reasonable efforts to keep open for public use the Parkway at all times during the Project Term, except for lane closures or diversions of traffic flow:
(i)
by Project Co in accordance with the provisions of the Traffic Management Plan; or
(ii)
of a type described in clauses (a) to (f) of the definition of “Availability Failure” in Schedule 20 – Payment Mechanism;
and, except as otherwise expressly provided in this Project Agreement, Project Co shall not have any claim whatsoever against HMQ, any Province Person, Emergency Service Providers or any other Governmental Authority for or in respect of any lane closure or diversion, including any lane closure or diversion referred to in this Section or as a result of the exercise of any other rights or powers or the discharge of any other duties or functions by any such authority affecting all or any part of the Site or the Parkway at any time.
(b)
Subject to closures or diversions of traffic flow with respect to the Parkway permitted by Section
21.6
(a)(i) to Section 21.6(a)(ii), Project Co shall cause all Initial Works and OM&R Work to be carried on so as not to interfere unnecessarily with, and so as to minimize any necessary interference with, the convenience of the public in respect of, and the access of the public to and use of, any public or private roads or highways or other transportation infrastructure other than the Parkway, whether under the control or in the possession of HMQ or any other person.
22.
WORKS SCHEDULE AND WORKS REPORT
22.1
Completion of Initial Works
(a)
Project Co shall complete the Initial Works in accordance with this Project Agreement and achieve:
(i)
each Phase Substantial Completion by the applicable Scheduled Phase Substantial Completion Date;
(ii)
Substantial Completion by the Scheduled Substantial Completion Date;
(iii)
each Phase Final Completion by the applicable Scheduled Phase Final Completion Date; and
(iv)
Final Completion by the Scheduled Final Completion Date.
(a)
Project Co shall prepare and submit to HMQ and the Independent Certifier:
(i)
within 30 days of the Initial Works Commencement Date, a detailed 6-Month Works Schedule; and
(ii)
within 180 days of the Initial Works Commencement Date, a detailed draft of the Works Schedule,
each using Primavera 5.0 or other software compatible with Primavera 5.0, that support the completion of the Initial Works in accordance with Section 22.1.
(b)
HMQ shall provide Project Co with comments on the 6-Month Works Schedule and the draft of the Works Schedule in accordance with Schedule 10 - Review Procedure, provided that the period for review of the draft of the Works Schedule shall be 20 Business Days rather than the 10 Business Days prescribed in Section 2.2 of Schedule 10 - Review Procedure. Project Co shall revise the 6-Month Works Schedule and the draft of the Works Schedule to the extent required by Schedule 10 - Review Procedure within 15 days of receipt of any comments from HMQ.
(c)
When agreed by the Parties, the draft of the Works Schedule shall become the Works Schedule.
(d)
The 6-Month Works Schedule and the Works Schedule shall be prepared in accordance with Good Industry Practice for a project of similar scale, scope, type and complexity and shall be in sufficient detail so as to enable the HMQ Representative and, if applicable, the Independent Certifier, to monitor the progress of the Initial Works, including all commissioning activities, and the likely future progress of the Initial Works.
(e)
Without limiting the generality of Section 22.2(d), the 6-Month Works Schedule shall include, at a minimum, in respect of the 6-month period beginning on the Initial Works Commencement Date:
(i)
all elements to be included in the Works Schedule pursuant to Schedule 3, Part 1 of the Request for Proposals;
(ii)
major milestone events;
(iii)
the dates that key decisions must be made by HMQ to support the progress of the Initial Works;
(iv)
the proposed dates for all plans required to be submitted under this Project Agreement and any Schedule by Project Co pursuant to the Review Procedure;
(v)
the dates for proposed Stakeholder consultations (as required pursuant to the Environmental Assessments further described in Schedule 17 – Environmental Obligations);
(vi)
all design related activities;
(vii)
all construction activities, including construction staging, subcontract work and cash allowance work, both on and off the Site; and
(i)
projected Construction Contract cash flows.
(f)
Without limiting the generality of Section 22.2(d), the Works Schedule shall include, at a minimum, in respect of the period from 6 months following the Initial Works Commencement Date until the Substantial Completion Date:
(i)
Subject to Section 22.2(f)(ii), all elements to be included in the 6-Month Works Schedule pursuant to Section 22.2(e);
(ii)
the proposed date for each Works Submittal, except for the proposed dates for plans under Subsection (iv) of Section 22.2(e);
(iii)
the process and schedule for Road Safety Audits;
(iv)
all Project Co Commissioning activities;
(i)
the manpower requirements for each activity, including subcontract work;
(ii)
a manpower histogram, with descriptions of overall manpower as well as by trade and manpower sourced locally (including both direct engagement and subcontract work); and
(v)
a cumulative “S”-curve showing planned percent completion for each month from the commencement of the Works until the Scheduled Final Completion Date.
22.3
Failure to Maintain Schedule
(a)
Without limiting any other provision of this Project Agreement but subject to Section 40, if, at any time:
(i)
the actual progress of the Initial Works has significantly fallen behind the Works Schedule; or
(ii)
HMQ is of the opinion that:
(A)
the actual progress of the Initial Works has significantly fallen behind the Works Schedule; or
(B)
Project Co will not achieve Substantial Completion by the Longstop Date,
Project Co shall be required:
(iii)
within 5 Business Days of receipt of notice from HMQ, to produce and deliver to each of the HMQ Representative and the Independent Certifier:
(A)
a report identifying the reasons for the delay; and
(B)
a plan showing the steps that are to be taken by Project Co to eliminate or reduce the delay to:
(I)
achieve Substantial Completion by the Scheduled Substantial Completion Date; or
if Substantial Completion will not be achieved by the Scheduled
Substantial Completion Date, achieve Substantial Completion by the
Longstop Date; and
(b)
Project Co shall notify the HMQ Representative if, at any time, the actual progress of the Initial Works is significantly ahead of the Works Schedule.
22.4
Notification of Early Substantial Completion
(a)
Unless Project Co obtains the prior written consent of HMQ, in its sole discretion, Project Co shall not be entitled to:
(i)
a Phase Substantial Completion Certificate prior to, and a Phase Substantial Completion Date and a Phase Payment Commencement Date shall not be earlier than, the relevant Scheduled Phase Substantial Completion Date, and the Payment Commencement Date shall not be earlier than the Scheduled Phase Substantial Completion Date for Phase One; or
(ii)
the Substantial Completion Certificate prior to, and the Substantial Completion Date and Substantial Completion Payment Commencement Date shall not be earlier than, the Scheduled Substantial Completion Date.
(b)
If Project Co advises HMQ that it expects to be able to achieve a Phase Substantial Completion or Substantial Completion prior to the relevant Scheduled Phase Substantial Completion Date or the Scheduled Substantial Completion Date, as applicable, the HMQ Representative shall be entitled to require Project Co to produce and submit to the HMQ Representative a revised Works Schedule showing the manner and the periods in which the Initial Works shall be performed and what the revised date for that Phase Substantial Completion or Substantial Completion would be so as to enable HMQ to consider at its sole discretion:
(i)
whether to agree to an earlier Phase Substantial Completion Date or Scheduled Substantial Completion Date; and
(ii)
what modifications, if any, shall be required to this Project Agreement in order to accommodate such earlier Phase Substantial Completion Date or Scheduled Substantial Completion Date.
(a)
Project Co shall continuously monitor the progress of the Initial Works in relation to the Works Schedule and, within 15 Business Days following the end of each calendar month from the Initial Works Commencement Date until the Final Completion Date, Project Co shall provide to the HMQ Representative and the Independent Certifier a works report (each, a “Works Report”), which will include:
(i)
an executive summary describing the general status of the Initial Works and progress made over the relevant month;
(ii)
an updated Works Schedule, in both summary and detailed formats;
(iii)
a narrative description of any Disputes related to the Initial Works, including any action that has taken place over the relevant month to resolve such Disputes;
(iv)
an update on those matters set out in Schedule 33 – Works Report Requirements; and
(v)
a progress report comparing Project Co?s actual Construction Activities and procurement activities relating to the Parkway with Greenroads rating requirements;
all in form and substance satisfactory to HMQ, acting reasonably. For greater certainty, for all updates and revisions to the Works Schedule, Project Co must provide a revised critical path reflecting the updated/revised Works Schedule.
(b)
Project Co shall use, and shall ensure that the Construction Contractor uses, the project management software system specified by HMQ.
23.1
Cash Allowance Items
(a)
Project Co shall open the Cash Allowance Account, deposit the Cash Allowance Amount into the Cash Allowance Account on the dates and in the amounts set out in the Financial Model at Financial Close and shall manage the Cash Allowance Account in accordance with this Section
(b)
The cash flow process applicable to the Cash Allowance Account will be as follows:
(i)
Project Co will deposit the Cash Allowance Amount into the Cash Allowance Account on the dates and in the amounts set out in the Financial Model at Financial Close;
(ii)
Project Co will hold and manage all monies in the Cash Allowance Account and shall ensure that such monies earn a commercially reasonable rate of interest, having regard to the amount on deposit and the expected time of withdrawals (provided that any rate of interest obtained from Qualified Investments (as defined in the Senior Credit Agreement) shall be deemed to be a commercially reasonable rate);
(iii)
interest earned on the Cash Allowance Account will accrue in the Cash Allowance Account;
(iv)
Project Co shall provide a reconciliation of the Cash Allowance Account to HMQ on a monthly basis;
(v)
Subject to Project Co?s obligation to fund the Cash Allowance Account pursuant to Sections 23.1(b)(i) and 23.1(h) and to make payments pursuant to Section 23.1(i), HMQ shall make deposits into the Cash Allowance Account in the event that the payment requirements for Cash Allowance Items, including applicable HST, for invoices approved by HMQ, exceed the Cash Allowance Amount, for clarity, determined on an aggregate basis across all Cash Allowance Items prior to approving any such invoices;
(vi)
if, at the earlier of Final Completion and the Termination Date, there exists a positive balance in the Cash Allowance Account, an amount equal to such balance will be paid by Project Co to HMQ or as HMQ directs; and
(vii)
the Parties agree to mutually review the operation of the Cash Allowance Account on a regular basis and make any appropriate modifications to ensure its efficient operation.
(c)
Project Co shall provide monthly reports to the HMQ Representative that include the following information:
(i)
itemized and aggregate amounts committed to date for all Cash Allowance Items;
(ii)
itemized and aggregate amounts spent to date for all Cash Allowance Items; and
(iii)
the projected cost of each remaining Cash Allowance Item and the projected effect of such costs on the Cash Allowance Account.
(d)
In addition to the monthly report described in Section 23.1(c), Project Co shall, on a monthly basis, provide to the HMQ Representative a request for payment approval (each, a “Request for
Payment Approval”) that includes the following information:
(i)
details of all vendor or Project Co Party invoices that are due for payment that month, including relevant supporting documentation;
(ii)
evidence that the commitment by Project Co to purchase the Cash Allowance Items has been approved by HMQ; and
(iii)
any discounts, rebates, refunds, chargebacks, credits, price adjustments and other allowances available to Project Co in connection with the Cash Allowance Items.
(e)
HMQ shall, within 10 Business Days of receipt of a Request for Payment Approval, advise Project Co, in writing, whether or not payment of the invoices set out in such Request for Payment Approval is approved. HMQ shall only be permitted to withhold its approval if HMQ determines that the Request for Payment Approval does not contain the information that HMQ requires, acting reasonably, to discharge its obligations under this Section 23.1. If HMQ withholds its approval pursuant to this Section 23.1(e) and subsequently receives the information that HMQ requires, acting reasonably, to discharge its obligations under this Section 23.1, it shall, within 10 Business Days of its receipt of such information, provide to Project Co, in writing, HMQ?s approval of the invoices set out in the aforementioned Request for Payment Approval.
(f)
If HMQ approves the payment of the invoices set out in a Request for Payment Approval, Project Co shall make payment to the relevant vendors or each Project Co Party from the Cash Allowance Account.
(g)
Project Co acknowledges and agrees that:
(i)
neither it, nor any Project Co Party, shall be entitled to any mark-ups for profit, overhead or other costs associated with the Cash Allowance Items, provided that this restriction shall not apply to lump sum or unit rate contracts with Project Co Parties (other than the Construciton Contractor or any of its Affiliates or any Affiliates of any joint venture member of the Construction Contractor);
(ii)
all discounts, rebates, refunds, chargebacks, credits, price adjustments and other allowances available to Project Co in connection with the Cash Allowance Items shall be attributed solely to and shall benefit the pricing of the Cash Allowance Items;
(iii)
all costs and expenses related to the administration of the Cash Allowance Account, including, without limitation, the preparation of Requests for Payment Approval and any required reporting, shall be borne by Project Co and shall not be charged to the Cash Allowance Account; and
(iv)
the Cash Allowance Amount will be deposited and the Cash Allowance Account will be managed in accordance with the Works Schedule and any costs, expense or delays related to funding or managing the Cash Allowance Account are the responsibility of Project Co.
(h)
Notwithstanding the provisions of this Section 23.1, where HMQ has approved a Request for Payment Approval and the amount in the Cash Allowance Account is not sufficient to make the payments approved or requested, Project Co shall be required to fund the difference between the amount in the Cash Allowance Account at such time and the outstanding amount of such approved Request for Payment Approval, to the maximum amount of the total Cash Allowance Amount (for clarity, determined on an aggregate basis across all Cash Allowance Items).
(i)
In the event that payments, including applicable HST, for invoices and/or payments in respect of Cash Allowance Items are required to be made to vendors and/or Project Co Parties, as the case may be, in advance of the date or dates set forth in the Financial Model at Financial Close for deposit by Project Co into the Cash Allowance Account, then, notwithstanding that there may be insufficient funds in the Cash Allowance Account at such time, Project Co, and not HMQ, shall make payments to vendors and/or Project Co Parties in respect of all invoices for Cash Allowance Items approved in writing by HMQ pursuant to this Section 23.1, provided that Project Co shall not be required to make any payments in excess of the amount representing the total Cash Allowance Amount (for clarity, determined on an aggregate basis across all Cash Allowance Items).
24.
ENERGY AND ENVIRONMENTAL REQUIREMENTS
24.1
Environmental Management / Contamination and Hazardous Substances
(a)
Project Co shall comply with the provisions of Schedule17 – Environmental Obligations.
24.2
Greenhouse Gas Credits
(a)
Any carbon or other greenhouse gas credits (including but not limited to allowances, offset credits and any other credits that may be recognized in any provincial, regional, national, international or other emissions trading system from time to time) which may be contracted for or otherwise guaranteed as a result of the Project shall be owned by HMQ and Project Co shall have no entitlement to any of such credits whatsoever.
(a)
Project Co shall procure and coordinate the supply and provision of all Energy Utilities and, subject to Schedule 8 – Energy Matters, shall be responsible for the cost of all Energy Utilities.
(b)
Each of Project Co and HMQ shall comply with the provisions of Schedule 8 – Energy Matters.
24.4
Greenroads Design and Construction Obligations
(a)
Project Co shall perform the Works so as to achieve the prerequisites, credits and points required to achieve Greenroads Certification and, may, in its sole discretion, determine which prerequisites, credits and points to pursue.
24.5
Greenroads Rating System
(a)
Project Co shall:
(i)
register the Project with Greenroads within 60 days following Financial Close; and
(ii)
prepare and submit to Greenroads the Project documentation required to apply for a rating assessment for the Project under the Greenroads Rating System as soon as Project Co has completed the relevant Works or parts thereof required to facilitate preparation of the applicable Project documentation.
(b)
If, after application for registration of the Project is made in accordance with Section 24.5(a)(i), there is a change in the requirements for achievement of Greenroads Certification under the Greenroads Rating System, and Project Co is required by Greenroads to comply with such change, then Project Co shall notify HMQ of such change and such change shall, subject to and in accordance with Schedule 22 - Variation Procedure, result in a Variation.
(c)
If Project Co fails to obtain Greenroads Certification, or deliver a Greenroads Compliance Certificate in accordance with Section 24.5(d) within 24 months after the Substantial Completion Date, other than as a direct result of any act or omission of HMQ, the amount payable by Project Co to HMQ as liquidated damages shall be equal to $[REDACTED]. The Parties agree that such liquidated damages are not a penalty but represent a genuine and reasonable pre-estimate of the damages that HMQ will suffer as a result of a failure by Project Co to achieve Greenroads Certification or deliver a Greenroads Compliance Certificate and it would be difficult or impossible to quantify such damages upon the happening of such event. Such payment shall constitute full and final settlement of any and all damages that may be claimed by HMQ as a result of a failure by Project Co to achieve Greenroads Certification or deliver a Greenroads Compliance Certificate and, for greater certainty, a failure by Project Co to achieve Greenroads Certification or deliver a Greenroads Compliance Certificate shall not result in a Project Co Event of Default. The Parties agree that such liquidated damages shall be payable whether or not HMQ incurs or mitigates its damages, and that HMQ shall not have any obligation to mitigate any such damages.
(d)
Notwithstanding that an application to Greenroads by Project Co for Greenroads Certification has been made but such Greenroads Certification has not been received from Greenroads, Project Co shall be deemed to have met the obligations under Section 24.4 if it has delivered a certificate (the “Greenroads Compliance Certificate”), certified by an Expert appointed pursuant to Schedule 27 – Dispute Resolution Procedure, that Project Co has performed and completed the relevant Works in the manner required to obtain all necessary prerequisites, credits and points under the Greenroads Rating System in order for Project Co to achieve Greenroads Certification.
24.6
Greenroads Progress Reports
(a)
As part of each Works report provided in accordance with Section 22.5, Project Co shall submit a progress report comparing its actual Construction Activities and procurement activities with Greenroads rating requirements.
25.
INDEPENDENT CERTIFIER
(a)
On or prior to Financial Close, the Parties shall appoint an independent, suitably qualified and experienced consultant to act as the Independent Certifier for the purposes of this Project Agreement and shall enter into an agreement with the Independent Certifier substantially in the form of Schedule 6 - Independent Certifier Agreement. If the Parties are unable to agree upon the Independent Certifier within such period of time, then the determination of the Independent Certifier shall be made in the same manner as the identification of a replacement Independent Certifier under Section 25.7(b).
(b)
Neither Party shall, without the prior written consent of the other Party, enter into any agreement with the Independent Certifier in connection with the Project other than the Independent Certifier Agreement, and Project Co shall ensure that no Project Co Party enters into any separate agreement with the Independent Certifier in connection with the Project.
25.2
Role of Independent Certifier
(a)
The general role, obligations and functions of the Independent Certifier are described in Schedule 6 - Independent Certifier Agreement.
25.3
Changes to Terms of Appointment
(a)
Neither HMQ nor Project Co shall without the other?s prior written approval:
(i)
waive, settle, compromise or otherwise prejudice any rights or claims which the other may from time to time have against the Independent Certifier; or
(ii)
vary the terms of the Independent Certifier Agreement or the services performed or to be performed by the Independent Certifier.
(b)
The Parties shall perform their respective obligations arising under or in connection with the Independent Certifier Agreement.
25.4
Right to Change Appointment
(a)
The Parties agree that the Independent Certifier shall not provide any services or reports or other information to Project Co, the Lenders, the Project Co Parties or any other person other than pursuant to the performance of the functions of the Independent Certifier under this Project Agreement unless agreed to in writing by both Parties. The Parties may agree to terminate the Independent Certifier Agreement upon 30 days notice to the Independent Certifier. If such notice is given, then, pursuant to Section 25.7, a new Independent Certifier will be appointed. The Parties agree that, notwithstanding the 30 days? notice of termination, the Independent Certifier shall continue on a day-to-day basis thereafter until a new Independent Certifier is appointed.
(a)
The Parties agree to cooperate with each other generally in relation to all matters within the scope of or in connection with the Independent Certifier Agreement. All instructions and representations issued or made by either of the Parties to the Independent Certifier shall be simultaneously copied to the other and both Parties shall be entitled to attend all inspections performed by or meetings involving the Independent Certifier.
25.6
Payment of Independent Certifier
(a)
Project Co and HMQ shall share equally the responsibility for the payment of all fees and costs of the Independent Certifier.
(a)
In the event of the Independent Certifier?s engagement being terminated otherwise than for full performance, the Parties shall liaise and cooperate with each other in order to appoint a replacement consultant to act as the Independent Certifier as soon as reasonably practicable. The identity of any such replacement shall be as agreed by the Parties and the terms of his/her appointment shall, unless otherwise agreed, be as set out in the Independent Certifier Agreement.
(b)
In the event the Parties fail to agree upon the identity of a replacement Independent Certifier within 5 Business Days of the original Independent Certifier?s appointment being terminated, then a replacement Independent Certifier shall be chosen as follows:
(i)
each Party shall, within 5 Business Days thereafter, select 3 suitably qualified and experienced replacements that would be acceptable to that Party, and shall provide notice thereof to the other Party, with a ranking of preference for replacements;
(ii)
if the Parties have both selected a common replacement, then such common replacement shall be the Independent Certifier, and if there is more than one common replacement, then the common replacement with the highest overall ranking (calculated by adding together the ordinal rank assigned by both Parties) shall be selected, and in the event of a tie, the lowest-cost of such tied replacements shall be selected; and
(iii)
if the Parties have not selected a common replacement, then the determination of the new replacement may be referred for resolution in accordance with Schedule 27 - Dispute Resolution Procedure.
26.
COMMISSIONING AND COMPLETION
26.1
Commissioning Activities
(a)
Project Co shall perform all Project Co Commissioning, and shall support and facilitate the performance of all required commissioning by HMQ, as set forth in this Section 26 and in Schedule 14 – Commissioning in respect of Phase Substantial Completion and Phase Final Completion of each Phase, and Substantial Completion and Final Completion, as applicable.
26.2
Substantial Completion Certificate
(a)
Project Co shall give the Independent Certifier and the HMQ Representative at least 10 Business Days? notice prior to the date upon which Project Co anticipates all requirements for a Phase Substantial Completion or Substantial Completion, as applicable, shall be satisfied.
(b)
Project Co shall give the Independent Certifier and the HMQ Representative notice (the “Substantial Completion Notice”) upon the satisfaction of all requirements for a Phase Substantial Completion or Substantial Completion, which Substantial Completion Notice shall describe, in reasonable detail, the satisfaction of the requirements for the relevant Phase Substantial Completion or Substantial Completion, together with Project Co?s opinion as to whether the conditions for issuance of the Phase Substantial Completion Certificate or Substantial Completion Certificate have been satisfied.
(c)
HMQ shall, within 5 Business Days after receipt of a Substantial Completion Notice, provide the Independent Certifier and Project Co with HMQ?s opinion as to whether the conditions for issuance of the Phase Substantial Completion Certificate or Substantial Completion Certificate have been satisfied and, if applicable, any reasons as to why it considers that the Phase Substantial Completion Certificate or Substantial Completion Certificate should not be issued.
(d)
Within 5 Business Days after Project Co?s receipt of HMQ?s opinion pursuant to Section 26.2(c), the Parties shall cause the Independent Certifier to determine whether the conditions for issuance of the Phase Substantial Completion Certificate or Substantial Completion Certificate have been satisfied, having regard for the opinions of both Project Co and HMQ, to determine whether any Minor Deficiencies exist, and to issue to HMQ and to Project Co either:
(i)
the relevant Phase Substantial Completion Certificate or the Substantial Completion Certificate, setting out in such certificate the relevant Phase Substantial Completion Date or the Substantial Completion Date, as applicable, and the Minor Deficiencies List (if applicable) in accordance with Section 26.4; or
(ii)
a report detailing the matters that the Independent Certifier considers are required to be performed by Project Co to satisfy the conditions for issuance of the Phase Substantial Completion Certificate or the Substantial Completion Certificate.
(e)
Where the Independent Certifier has issued a report in accordance with Section 26.2(d)(ii) and Project Co has not referred a Dispute in relation thereto for resolution in accordance with Schedule 27 - Dispute Resolution Procedure, Project Co shall, within 5 Business Days after receipt of such report, provide the Independent Certifier and the HMQ Representative with:
(i)
a detailed list indicating the rectification actions proposed for all matters raised in such report;
(ii)
the schedule for completion of all such rectification actions; and
(iii)
any additional Project Co Commissioning that needs to be undertaken as a result of the rectification actions,
and Project Co shall perform all such additional rectification actions and Project Co Commissioning in a timely manner. Upon completion thereof, Project Co may give a further Substantial Completion Notice and Sections 26.2(c) to (e), inclusive, shall be repeated until the Phase Substantial Completion Certificate or Substantial Completion Certificate has been issued.
(f)
The Independent Certifier’s decision to issue or not to issue a Phase Substantial Completion Certificate or the Substantial Completion Certificate shall be final and binding on the Parties solely in respect of determining the relevant Phase Payment Commencement Date, and a Dispute in relation to a Phase Payment Commencement Date shall not be subject to resolution pursuant to Schedule 27 - Dispute Resolution Procedure, provided, however, that any other Dispute in relation to the Independent Certifier’s decision to issue or not to issue a Phase Substantial Completion Certificate or the Substantial Completion Certificate may be referred for resolution pursuant to the Dispute Resolution Procedure.
(a)
Project Co shall deliver a notice (a “Countdown Notice”) to HMQ and the Independent Certifier specifying the date (which, for greater certainty, will be on or before the Scheduled Phase Substantial Completion Date of each Phase or on or before the Scheduled Substantial Completion Date, as applicable) on which Project Co anticipates that the relevant Phase Substantial Completion or Substantial Completion will be achieved (the “Anticipated Phase Substantial Completion Date” or “Anticipated Substantial Completion Date”, as applicable).
(b)
The Countdown Notice shall be delivered not less than 180 days prior to the Anticipated Phase Substantial Completion Date or Anticipated Substantial Completion Date. If Project Co fails to deliver the Countdown Notice not less than 180 days prior to the Scheduled Phase Substantial Completion Date or the Scheduled Substantial Completion Date, the Anticipated Phase Substantial Completion Date or the Anticipated Substantial Completion Date shall be deemed to be the same date as the Scheduled Phase Substantial Completion Date or the Scheduled Substantial Completion Date, as applicable.
(c)
In accordance with Section 22.4(a), any Anticipated Phase Substantial Completion Date or the Anticipated Substantial Completion Date shall not be earlier than the Scheduled Phase Substantial Completion Date of the relevant Phase or the Substantial Completion Date, as applicable, without the prior written consent of HMQ, in its sole discretion.
(a)
In the event that Minor Deficiencies exist when Project Co gives a Substantial Completion Notice, the Independent Certifier, in consultation with Project Co and HMQ, shall, within 15 Business Days of Project Co?s application, prepare a list of all Minor Deficiencies (the “Minor Deficiencies List”) identified at that time and an estimate of the cost and the time for rectifying such Minor Deficiencies.
(b)
The Minor Deficiencies List will contain the schedule for the completion and rectification of the Minor Deficiencies. In determining the relevant time for rectifying Minor Deficiencies, Project Co shall schedule the completion and rectification of Minor Deficiencies so as to minimize, to the greatest extent reasonably possible, any lane closures, traffic diversions or restrictions or other impairment of the public?s use and enjoyment of the Parkway or the relevant portion thereof, or disruption of the Project Operations or of the operations of HMQ, any Province Person, any Governmental Authority or any Other Contractor, including the performance of the Governmental Activities and the Other Works, and otherwise in accordance with the Traffic Management Plan.
(c)
The Independent Certifier must prepare the Minor Deficiencies List before a Phase Substantial Completion Certificate or the Substantial Completion Certificate is issued, but shall not withhold a Phase Substantial Completion Certificate or the Substantial Completion Certificate by reason solely that there are Minor Deficiencies.
(d)
HMQ may, in its sole discretion, waive any requirement for a Phase Substantial Completion or Substantial Completion, and the failure to meet any such requirement shall constitute a Minor Deficiency.
26.5
Rectification of Minor Deficiencies
(a)
Project Co shall, in consultation with the HMQ Representative and so as to minimize, to the greatest extent reasonably possible, any lane closures, traffic diversions or restrictions or other impairment of the public?s use and enjoyment of the Parkway or any portion thereof or disruption of the Project Operations or of the operations of HMQ, any Province Person, any Governmental Authority or any Other Contractor, including the performance of the Governmental Activities and the Other Works, and otherwise in accordance with the Traffic Management Plan, complete and rectify all Minor Deficiencies within 180 days of the issuance of the applicable Minor Deficiencies List or such other period as the Independent Certifier may specify in the Minor Deficiencies List.
(b)
Project Co acknowledges and agrees that the completion and rectification of Minor Deficiencies may require work outside of normal working hours in order to accommodate the efficient operation of the Parkway or any portion thereof and to ensure compliance with the Traffic Management Plan.
26.6
Failure to Rectify Minor Deficiencies
(a)
If Project Co has failed to complete and rectify any Minor Deficiency specified in the Minor Deficiencies List
(i)
within 210 days of the issuance of the Minor Deficiencies List for all Minor Deficiencies where no time for rectification or completion has been specified by the Independent Certifier, or
(ii)
within 30 days after the time for completion and rectification of any Minor Deficiency where such a time has been specified in the Minor Deficiencies List by the Independent Certifier,
HMQ may:
(iii)
withhold from the next payment or payments otherwise due to Project Co a holdback amount that is [REDACTED]% of the amount estimated by the Independent Certifier for HMQ to complete and rectify all such Minor Deficiencies (to the extent then outstanding), which holdback shall be held in an interest bearing account; and
(iv)
engage others to perform the work necessary to complete and rectify any such Minor Deficiency, at the risk and cost of Project Co, and HMQ may deduct such cost from the holdback amount and interest earned thereon.
(b)
Upon completion and rectification of each Minor Deficiency, HMQ shall release to Project Co the amount of the holdback related to such Minor Deficiency. Upon completion and rectification of all Minor Deficiencies, HMQ shall release to Project Co the then remaining amount of the holdback, together with all interest accrued thereon. If the cost of such completion and rectification exceeds the amount of such holdback and interest, then Project Co shall reimburse HMQ for all such excess cost.
26.7
Final Completion Certificate
(a)
Project Co shall give the Independent Certifier and the HMQ Representative at least 10 Business Days? notice prior to the date upon which Project Co anticipates all requirements for a Phase Final Completion or Final Completion shall be satisfied.
(b)
Project Co shall give the Independent Certifier and the HMQ Representative notice (a “Final Completion Notice”) upon the satisfaction of all requirements for a Phase Final Completion or Final Completion, as applicable, which Final Completion Notice shall describe, in reasonable detail, the satisfaction of the requirements for the relevant Phase Final Completion or Final Completion, including the completion and rectification of all Minor Deficiencies, the time required for completion of all outstanding seasonal work and the submission of all records and data as set forth in Section 3 of Schedule 14 – Commissioning, together with Project Co?s opinion as to whether the conditions for issuance of the Phase Final Completion Certificate or the Final Completion Certificate have been satisfied.
(c)
HMQ shall, within 5 Business Days after receipt of the Final Completion Notice, provide the Independent Certifier and Project Co with HMQ?s opinion as to whether the conditions for issuance of the Phase Final Completion Certificate or the Final Completion Certificate have been satisfied and, if applicable, any reasons as to why it considers that the Phase Final Completion Certificate or the Final Completion Certificate should not be issued.
(d)
Within 5 Business Days after Project Co?s receipt of HMQ?s opinion pursuant to Section 26.7(c), the Parties shall cause the Independent Certifier to determine whether the conditions for issuance of the Phase Final Completion Certificate or the Final Completion Certificate have been satisfied, having regard for the opinions of both Project Co and HMQ, and to issue to HMQ and to Project Co either:
(i)
the relevant Phase Final Completion Certificate or the Final Completion Certificate, setting out in such certificate the relevant Phase Final Completion Date or the Final Completion Date, as applicable; or
(ii)
a report detailing the matters that the Independent Certifier considers are required to be performed by Project Co to satisfy the conditions for issuance of the Phase Final Completion Certificate or the Final Completion Certificate, including any items on the Minor Deficiencies List which remain outstanding.
(e)
Where the Independent Certifier has issued a report in accordance with Section 26.7(d)(ii) and Project Co has not referred a Dispute in relation thereto for resolution in accordance with Schedule 27 - Dispute Resolution Procedure, Project Co shall, within 5 Business Days after receipt of such report, provide the Independent Certifier and the HMQ Representative with:
(i)
a detailed list indicating the rectification actions proposed for all matters raised in such report;
(ii)
the schedule for completion of all such rectification actions; and
(iii)
any additional Project Co Commissioning that needs to be undertaken as a result of the rectification actions,
and Project Co shall perform all such additional rectification actions in a timely manner. Upon completion thereof, Project Co may give a further Final Completion Notice and Sections 26.7(c) to (e), inclusive, shall be repeated until the Phase Final Completion Certificate or the Final Completion Certificate, as applicable, has been issued.
(f)
Any Dispute in relation to the Independent Certifier?s decision to issue or not to issue a Phase Final Completion Certificate or the Final Completion Certificate may be referred for resolution in accordance with Schedule 27 - Dispute Resolution Procedure.
(g)
If, within 30 days after the time specified in the Final Completion Notice for completion of seasonal work, Project Co has failed to complete such seasonal work, HMQ may engage others to perform the work necessary to complete the seasonal work, at the risk and cost of Project Co. Project Co shall pay to HMQ the costs incurred by HMQ to complete such seasonal work within 10 Business Days of presentation of an invoice for such costs.
26.8
Effect of Certificates/Use
(a)
The issue of a Phase Substantial Completion Certificate, the Substantial Completion Certificate, a Phase Final Completion Certificate or the Final Completion Certificate, the commencement of use by HMQ or the public of any part of the Parkway under the terms of this Project Agreement or the commencement of any Governmental Activities shall, in no way:
(i)
limit the obligations of Project Co under this Project Agreement including in respect of any defects, deficiencies or items of outstanding work existing or discovered prior to or after the date of any of such certificates or the date of the Minor Deficiencies List; or
(ii)
be construed as an approval by HMQ of the Initial Works or the way in which they have been carried out.
26.9
Completion of Phase Three
(a)
Compliance by each Party of its obligations pursuant to this Section 26 in respect of Phase Substantial Completion of Phase Three or Phase Final Completion of Phase Three shall be deemed to satisfy such Party?s obligations pursuant to this Section 26 in respect of Substantial Completion or Final Completion, as the case may be.
26.10
Post-Completion Survey
(a)
Not more than 90 days after the Final Completion Date, Project Co shall cause an up-to-date topographical and an up-to-date legal survey of the Lands to be completed by a duly qualified surveyor to be delivered to HMQ.
27.1
Overall Responsibility
(a)
Project Co shall, following the Phase Substantial Completion Date of any Phase, perform the OM&R Work in respect of such Phase:
(i)
so as to satisfy the Output Specifications; and
(ii)
in accordance with the other terms of this Project Agreement.
27.2
Commencement of OM&R Work
(a)
Project Co shall commence the OM&R Work in respect of each Phase on the day immediately after the Phase Substantial Completion Date of such Phase and shall perform the OM&R Work in respect of such Phase until the end of the Operational Term.
27.3
Equipment for OM&R Work
(a)
Project Co will procure, deliver, install, commission, maintain, repair, decommission, upgrade and replace any equipment required by Project Co to perform the OM&R Work.
28.1
Admittance of Personnel
(a)
HMQ shall have the right to order the removal from the Site and/or the Parkway of any person employed by (or acting on behalf of) Project Co, or any Project Co Party, whose presence, in the reasonable opinion of HMQ is likely to have an adverse effect on the Other Works or the Governmental Activities or who, in the reasonable opinion of HMQ is not a fit and proper person to be at the Site and/or the Parkway for any reason, including a failure to comply with any HMQ policy or any immediate obligation of HMQ to ensure the safety and well being of persons at the Site and/or the Parkway.
28.2
Confirmation of Action
(a)
Any action taken under Section 28.1 shall promptly be confirmed by HMQ to Project Co and, for greater certainty, shall not relieve Project Co of any of its obligations under this Project Agreement.
28.3
Finality as to Admission
(a)
Any decision of HMQ made pursuant to Section 28.1 shall be final and conclusive.
(a)
Project Co shall ensure that:
(i)
there shall at all times be a sufficient number of persons (including all relevant grades of supervisory staff) engaged in the performance of the Project Operations with the requisite level of skill and experience to perform the Project Operations in accordance with this Project Agreement. For greater certainty, this obligation shall include ensuring that there are sufficient employees to complete the Works in accordance with the Works Schedule and to cover periods of holiday, sickness, other absence, and anticipated and actual peaks in the OM&R Work;
(ii)
all employees receive such training and supervision as is necessary to ensure the proper performance of this Project Agreement and compliance with all health and safety rules, procedures and requirements and Authority Requirements, and
(iii)
it creates and maintains, and causes all Project Co Parties to create and maintain, a process which allows it to assess, monitor and correct, on an ongoing basis, the competency of employees to ensure the proper performance of this Project Agreement.
(a)
HMQ, acting reasonably, may notify Project Co of any Project Co or Project Co Party employee who engages in misconduct or is incompetent or negligent in the performance of duties or whose presence or conduct on the Lands or at work is otherwise considered by HMQ to be undesirable, to constitute a threat to the health and/or safety of any of the users of the Lands and/or Parkway Users or which HMQ considers may potentially compromise the reputation or integrity of HMQ and/or any HMQ Party or the nature of the Province of Ontario’s highway or parks system, so as to negatively affect public perception of such system. Upon investigation, Project Co may institute, or cause the relevant Project Co Party to institute, disciplinary proceedings, which shall be in accordance with the requirements of Applicable Law, and shall advise HMQ in writing of the outcome of any disciplinary action taken in respect of such person.
28.6
Human Resources Policies
(a)
Project Co shall ensure that there are set up and maintained by it and by all Project Co Parties, human resources policies and procedures covering all relevant matters relating to the Project Operations (including, for example, health and safety). Project Co shall ensure that the terms and the implementation of such policies and procedures comply with Applicable Law, Authority Requirements and Good Industry Practice and that they are published in written form and that copies of them (and any revisions and amendments to them) are available to HMQ on a timely basis.
28.7
Management Organizations
(a)
Project Co shall provide, and shall ensure that all Project Co Parties provide, to HMQ, as required to keep such information current, the names of the management teams responsible for the performance of the Project Operations.
29.
GOODS, EQUIPMENT, CONSUMABLES AND MATERIALS
(a)
Project Co shall cause the goods, equipment, consumables and materials used or supplied by it or any Subcontractor in connection with the Project Operations to be:
(i)
of good quality, fit for their intended purpose and maintained in a safe, serviceable and clean condition in accordance with the Output Specifications and Good Industry Practice;
(ii)
of the type specified in the Output Specifications, if applicable; and
(iii)
in compliance with all Applicable Law,
and shall, as soon as practicable after receiving a request from the HMQ Representative, supply to the HMQ Representative evidence to demonstrate its compliance with this Section 29.1(a).
(a)
Project Co shall cause sufficient stocks of goods, consumables, equipment and materials to be held in compliance with its obligations under this Project Agreement.
30.
DAMAGE AND DESTRUCTION
30.1
Restoration and Reinstatement of Damage or Destruction
(a)
Unless this Project Agreement is terminated in accordance with its terms (including under Section
45.3
, Section 47.1, Section 47.2 or Section 47.3), if all or any part of the Parkway is damaged or destroyed, Project Co shall, at its own cost and expense, repair or replace, as applicable, the Parkway or such part of the Parkway, as applicable (the “Reinstatement Work”) promptly and in any event as soon as practicable in the circumstances. Except as otherwise expressly provided in this Project Agreement, damage to or destruction of all or any part of the Parkway shall not terminate this Project Agreement or relieve Project Co of any of its obligations hereunder or entitle Project Co to any compensation from HMQ.
(a)
If the Reinstatement Work is reasonably estimated to cost more than $[REDACTED] (index linked) or in any other case where the HMQ Representative, having regard to the nature of the damage or destruction, notifies Project Co that a Reinstatement Plan is required (excluding where the damage or destruction occurs before the Final Completion Date and the HMQ Representative acting reasonably considers that the continued application of the Design and Certification Procedure would be able to adequately address the Reinstatement Work without the need for a separate Reinstatement Plan), Project Co shall, as soon as practicable and in any event within 20 Business Days after the occurrence of the damage or destruction or receipt of notification from the HMQ Representative, as the case may be, (or if, with the exercise of all due diligence more than 20 Business Days is reasonably required for such purposes, then within such longer period of time after the occurrence of such damage or destruction or receipt of notification from the HMQ Representative, as the case may be, as may be reasonably required with the exercise of all due diligence, provided Project Co exercises and continues to exercise all such due diligence) submit to the HMQ Representative pursuant to Schedule 10 - Review Procedure a plan (a “Reinstatement Plan”) prepared by Project Co for carrying out the Reinstatement Work setting out, in reasonable detail, inter alia:
(i)
a description of the Reinstatement Work required to restore, replace and reinstate the damage or destruction;
(ii)
Project Co?s proposed schedule for the execution of the Reinstatement Work; and
(iii)
the information required pursuant to Schedule 22 – Variations as if such plan were an Estimate;
and the Reinstatement Work must not be commenced until the HMQ Representative consents thereto in accordance with Schedule 10 - Review Procedure except to the extent necessary to address any emergency or public safety needs.
30.3
Conduct of Reinstatement Work
(a)
Project Co shall cause the Reinstatement Work to be carried out in accordance with the Output Specifications and all other applicable requirements under this Project Agreement and, where applicable, in accordance with the Reinstatement Plan consented to by the HMQ Representative in accordance with Schedule 10 - Review Procedure. All designs, plans and specifications in respect of the Reinstatement Work shall be subject to the Design and Certification Procedure. If requested by the HMQ Representative, the persons (and if applicable, a suitable parent entity thereof acceptable to HMQ) retained by Project Co to design and carry out any Reinstatement Work shall, as a condition to their retainer and prior to commencing any Reinstatement Work or design work in connection therewith, enter into a construction contract with Project Co and a direct agreement with HMQ in substantially the same forms as the Construction Contract and the Construction Contractor?s Direct Agreement.
(b)
In the event any Insurance Proceeds under Insurance Policies as referred to in Schedule 30 – Insurance Trust Agreement are available to carry out the Reinstatement Work, such Insurance Proceeds shall be paid into the Insurance Trust Account and shall be dispensed in accordance with the provisions of the Insurance Trust Agreement to carry out the Reinstatement Work.
31.1
Monitoring of Performance
(a)
Project Co shall monitor the performance of the OM&R Work in the manner and at the frequencies set out in the Output Specifications and the Payment Mechanism, and shall compile and at all times maintain records which are accurate and complete of such monitoring and performance. In addition to Project Co?s obligations as set out in the Output Specifications and the Payment Mechanism, Project Co shall, as reasonably requested by HMQ, provide the HMQ Representative with relevant particulars of any aspects of Project Co?s performance which fail to meet the requirements of this Project Agreement.
(b)
HMQ may, at any and all reasonable times, observe, inspect, monitor, audit and take any steps reasonably necessary to satisfy itself as to the adequacy of the monitoring, including performing sample checks.
(a)
In each Payment Period, Project Co shall measure the performance of the OM&R Work, and based on the performance of the OM&R Work in the applicable Payment Period, Failure Points may be awarded in respect of the OM&R Work in accordance with the Payment Mechanism.
(a)
Without prejudice to HMQ?s rights under Section 45 and any other rights under this Project Agreement, if Project Co accrues more than the following number of Failure Points in any one Payment Period, then HMQ may give written notice (a “Warning Notice”) to Project Co setting out the matter or matters giving rise to such notice and stating that it is a “Warning Notice”:
(i)
[REDACTED] Failure Points in respect of Availability Failures; or
(ii)
[REDACTED] Failure Points in respect of Quality Failures.
(a)
Without prejudice to HMQ?s rights under Section 45 and any other rights under this Project Agreement, if Project Co accrues more than the following number of Failure Points in any rolling 3 Payment Periods, HMQ may, by notice (a “Monitoring
Notice”) to Project Co require Project Co to increase the level of Project Co?s monitoring of its own performance of its obligations under this Project Agreement until such time as Project Co shall have demonstrated to the reasonable satisfaction of HMQ that it is performing, and is capable of continuing to perform, its obligations under this Project Agreement in respect of the relevant OM&R Work:
(i)
[REDACTED] Failure Points in respect of Availability Failures; or
(ii)
[REDACTED] Failure Points in respect of Quality Failures.
(b)
HMQ may give a Warning Notice pursuant to Section 31.3 despite the issuance of a Monitoring Notice in respect of the same matter where a further breach occurs or the original breach has not been remedied within a reasonable period, and whether or not the previous Monitoring Notice remains in effect.
(c)
If a Monitoring Notice is given, then:
(i)
such Monitoring Notice shall specify in reasonable detail the additional measures to be taken by Project Co in monitoring its own performance;
(ii)
if Project Co, acting reasonably, objects to any of the specified measures on the grounds that they are excessive or that HMQ was not entitled to give the Monitoring Notice, Project Co shall, within 3 Business Days of the receipt of the Monitoring Notice, notify HMQ in writing of the matters objected to and any changes necessary in order to prevent prejudice to Project Co?s performance of its obligations under this Project Agreement;
(iii)
if Project Co gives HMQ a notice under Section 31.4(c)(ii), the measures to be taken by Project Co shall be agreed between the Parties or, in the absence of agreement within 10 Business Days of HMQ?s receipt of such notice, may be referred for resolution in accordance with Schedule 27 - Dispute Resolution Procedure;
(iv)
if Project Co fails to increase Project Co?s monitoring as provided herein, HMQ may perform such monitoring save where Project Co, acting in good faith, is pursuing a Dispute pursuant to Section 31.4(c)(iii);
(v)
if it is determined in accordance with Schedule 27 - Dispute Resolution Procedure that HMQ was entitled to give the applicable Monitoring Notice, Project Co shall bear its own costs and reimburse HMQ for any reasonable costs and expenses incurred by or on behalf of HMQ in relation to the giving of such Monitoring Notice; and
(vi)
if it is determined in accordance with Schedule 27 - Dispute Resolution Procedure that HMQ was not entitled to give the applicable Monitoring Notice, HMQ shall bear its own costs and reimburse Project Co for any reasonable costs and expenses incurred by or on behalf of Project Co in relation to the giving of such Monitoring Notice.
(d)
In respect of any Monitoring Notice, if Project Co shall have demonstrated to the reasonable satisfaction of HMQ that Project Co has performed its obligations under this Project Agreement for a period of 90 consecutive days and during such period has not received a Warning Notice or Monitoring Notice in respect of the same or similar OM&R Work, Project Co may apply for the withdrawal of such Monitoring Notice. If HMQ is satisfied, acting reasonably, that Project Co has satisfied the aforesaid requirements, it shall, within 10 Business Days of receipt of such application, withdraw such Monitoring Notice and cease to perform or require the performance of the increased monitoring implemented in respect of such Monitoring Notice.
(e)
If it is determined in accordance with Schedule 27 - Dispute Resolution Procedure that HMQ was not entitled to give any Monitoring Notice, HMQ shall promptly withdraw such Monitoring Notice and cease to perform or require the performance of the increased monitoring implemented in respect of such Monitoring Notice.
32.
HMQ’S REMEDIAL RIGHTS
32.1
Exercise of Remedial Rights
(a)
HMQ may exercise all rights set out in this Section 32 at any time and from time to time if:
(i)
HMQ, acting reasonably, considers that a breach by Project Co of any obligation under this Project Agreement, or any act or omission on the part of Project Co or any Project Co Party:
(A)
does or can reasonably be expected to create a serious threat to the health, safety or security of any person, including any Parkway User or Province Person;
(B)
does or can reasonably be expected to result in a materially adverse interruption in the OM&R Work or the availability of the Parkway to Parkway Users;
(C)
does or can reasonably be expected to materially prejudice the performance of any Governmental Activities; or
(D)
may potentially compromise the reputation or integrity of HMQ and/or any HMQ Party or the nature of the Province of Ontario?s highway or parks system, so as to negatively affect public perception of that system,
provided that:
(E)
in respect of a breach by Project Co of any obligation under this Project Agreement, or any act or omission on the part of Project Co or any Project Co Party, which can reasonably be expected to cause any of the consequences set out
its rights under this Section 32 unless Project Co has failed to cure the relevant breach, act or omission within 5 Business Days of notice from HMQ or, if such breach, act or omission cannot reasonably be cured within such 5 Business Day period, Project Co thereafter fails to diligently and continuously pursue such cure and to cure such breach, act or omission within a reasonable period thereafter, provided that Project Co shall not be entitled to a cure period if any of the
actually occur; and
(F)
in respect of Section 32.1(a)(i)(D), HMQ shall not exercise its rights under this Section 32 unless Project Co has failed to cure the relevant breach, act or omission within 5 Business Days of notice from HMQ or, if such breach, act or omission cannot reasonably be cured within such 5 Business Day period, Project Co thereafter fails to diligently and continuously pursue such cure and to cure such breach, act or omission within a reasonable period thereafter;
(ii)
Project Co accrues, in any Contract Month, more than:
(A)
[REDACTED] Failure Points in respect of Availability Failures; or
(B)
[REDACTED] Failure Points in respect of Quality Failures;
(iii)
while a Monitoring Notice is in effect that is not being disputed by Project Co, acting in good faith, Project Co receives a Warning Notice in respect of the same or similar OM&R Work;
(iv)
if, pursuant to Part 5 of Schedule 11 – Quality Management, a Quality Audit that is not being disputed by Project Co, acting in good faith, shows that Project Co has not performed or is not performing its obligations and Project Co has failed to perform the rectification or OM&R Work as provided in the Output Specifications;
(v)
a labour dispute materially affects or can reasonably be expected to materially affect the Project Operations, the Governmental Activities or the availability of the Parkway to Parkway Users;
(vi)
HMQ has received a notice under any OM&R Provider?s Direct Agreement, if applicable, that entitles HMQ to exercise step-in rights thereunder; or
(vii)
Project Co has failed to comply with any written direction issued by or on behalf of HMQ (or any designate appointed pursuant to Section 63.1).
(a)
Notwithstanding that Project Co is not in breach of its obligations under this Project Agreement, HMQ may exercise all of the rights set out in this Section 32 at any time and from time to time during the Operational Term if HMQ, acting reasonably, considers the circumstances to constitute an Emergency.
(a)
Without prejudice to HMQ?s rights under Section 45 and any other rights under this Project Agreement, in any of the circumstances set out in Sections 32.1 or 32.2, HMQ may, by written notice, require Project Co to take such steps as HMQ, acting reasonably, considers necessary or expedient to mitigate, rectify or protect against such circumstance, including, if applicable, the termination and replacement of Subcontractors, and Project Co shall use commercially reasonable efforts to comply with HMQ?s requirements as soon as reasonably practicable.
(b)
If HMQ gives notice to Project Co pursuant to Section 32.3(a) and either:
(i)
Project Co does not either confirm, within 5 Business Days of such notice or such shorter period as is appropriate in the case of an Emergency or, if applicable, in the event HMQ is entitled to exercise step-in rights under any OM&R Provider?s Direct Agreement, that it is willing to take the steps required in such notice or present an alternative plan to HMQ to mitigate, rectify and protect against such circumstances that HMQ may accept or reject acting reasonably; or
(ii)
Project Co fails to take the steps required in such notice or accepted alternative plan within such time as set out in such notice or accepted alternative plan or within such longer time as HMQ, acting reasonably, shall think fit,
then HMQ may take such steps as it considers to be appropriate, acting reasonably, including, if applicable, exercising step-in rights under any OM&R Provider?s Direct Agreement and requiring the termination and replacement of Subcontractors, either itself or by engaging others (including a third party) to take any such steps, and may perform or obtain the performance of the relevant OM&R Work to the standards required by this Project Agreement, and the provisions of Section 42, including Section 42.1(a)(iv) and Section 42.2, shall apply.
(c)
Notwithstanding the foregoing provisions of this Section 32.3, in the event of an Emergency, the notice under Section 32.3(a) shall be given as promptly as possible having regard to the nature of the Emergency and HMQ may, prior to Project Co?s confirmation under Section 32.3(b)(i), take such steps as are appropriate having regard to the nature of the Emergency.
(d)
Where HMQ considers it to be necessary to do so, the steps which HMQ may take pursuant to this Section 32.3 subsequent to the provision of the notice under Section 32.3(a) unless the notice is given at a later time as provided in Section 32.3(c), may, at HMQ?s option, include the partial or total suspension of Project Co?s right and obligation to perform any OM&R Work having regard to the circumstances in question (without any extension of the Project Term or suspension of any other OM&R Work, and the provisions of Section 42, including Section 42.1(a)(iv) and Section 42.2, shall apply, but such suspension shall be only for so long as, as applicable:
(i)
the circumstances referred to in Section 32.1 or 32.2 subsist; or
(ii)
in respect of any such circumstances relating to Project Co?s performance of the OM&R Work, until such time as Project Co shall have demonstrated to the reasonable satisfaction of HMQ that, notwithstanding such circumstances, Project Co has taken such steps, including, if applicable, the termination and replacement of Subcontractors, as are required pursuant to this Section 32.3 and as are necessary to be capable of performing its obligations in respect of the relevant OM&R Work to the required standard in accordance with this Project Agreement, and thereafter Project Co shall perform its obligations as aforesaid.
(a)
Subject to HMQ?s obligations pursuant to Sections 32.5and 32.6:
(i)
Project Co shall bear all costs and expenses incurred by Project Co in relation to the exercise of HMQ?s rights pursuant to this Section 32; and
(ii)
Project Co shall reimburse HMQ for all reasonable costs and expenses incurred by HMQ in relation to the exercise of HMQ?s rights pursuant to this Section 32.
32.5
Reimbursement Events
(a)
In this Section 32.5, a “Reimbursement Event” means:
(i)
an act or omission of Project Co or any Project Co Party or a breach of any obligation under this Project Agreement, but only to the extent such act, omission or breach is caused by a Province Person;
(ii)
a labour dispute involving employees of any Province Person that materially affects or can reasonably be expected to materially affect the Project Operations; or
(b)
If HMQ either takes steps itself or requires Project Co to take steps in accordance with this Section 32 as a result of a Reimbursement Event:
(i)
HMQ shall reimburse Project Co for the reasonable costs and expenses incurred by Project Co in relation to the exercise of HMQ?s rights pursuant to this Section 32 that would not otherwise have been incurred by Project Co in the proper performance of its obligations under this Project Agreement; and
(ii)
subject to Section 32.5(c), HMQ shall bear all costs and expenses incurred by HMQ in relation to the exercise of HMQ rights pursuant to this Section 32.
(c)
If, in exercising its rights pursuant to this Section 32, HMQ performs any part of the OM&R Work either itself or by engaging others, HMQ shall be entitled to deduct from any Monthly OM&R Payment the reasonable cost of performing such OM&R Work. If HMQ makes such a deduction, then Project Co shall be relieved of its reimbursement obligations under Section 32.4(a)(ii) up to the amount equal to the deduction.
32.6
Reimbursement if Improper Exercise of Rights
(a)
If HMQ exercises its rights pursuant to this Section 32, but HMQ was not entitled to do so, HMQ shall reimburse Project Co for the reasonable costs and expenses directly incurred by Project Co over and above those that would otherwise have been incurred by Project Co in the proper performance of its obligations under this Project Agreement and that are directly and reasonably incurred by Project Co in complying with those written requirements of HMQ issued as a result of HMQ having exercised such rights.
(b)
Project Co acknowledges and agrees that Project Co has no right to require a determination of whether or not HMQ is entitled to exercise its rights pursuant to this Section 32 before taking any such action that HMQ may require and Project Co shall comply with all of HMQ?s requirements. Only concurrently with or after complying with HMQ?s requirements shall Project Co be entitled to refer any Dispute for resolution in accordance with Schedule 27 - Dispute Resolution Procedure.
33.
[INTENTIONALLY DELETED]
33.1
[Intentionally Deleted]
(a)
HMQ shall pay to Project Co the Phase One Substantial Completion Payment plus, for clarity, applicable HST, on the Phase One Payment Commencement Date.
(b)
HMQ shall pay to Project Co the Phase Two Substantial Completion Payment plus, for clarity, applicable HST, on the Phase Two Payment Commencement Date.
(c)
HMQ shall pay to Project Co the Substantial Completion Payment plus, for clarity, applicable HST, on the Substantial Completion Payment Commencement Date.
34.2
Monthly OM&R Payments
(a)
Subject to and in accordance with this Project Agreement, including this Section 34 and Schedule 20 - Payment Mechanism, HMQ shall pay to Project Co the all-inclusive Monthly OM&R Payments for the performance of all of the Project Operations.
(a)
Project Co acknowledges and agrees that:
(i)
the amount of any Monthly OM&R Payment may be adjusted pursuant to Schedule 20 Payment Mechanism; and
(ii)
such adjustments are integral to the provisions of this Project Agreement.
(b)
If, for any reason, any adjustment (including a Deduction) made pursuant to Schedule 20 Payment Mechanism is invalid and unenforceable, and an Applicable Law that is a Change in Law is enacted that permits HMQ to recover or to cause such adjustment to be enforceable, such Change in Law (only to the extent that it permits HMQ to recover or to cause such adjustment to be enforceable) shall be deemed to not be a Relevant Change in Law and Project Co shall not be entitled to any compensation hereunder for such Change in Law.
34.4
Payment Commencement
(a)
Subject to and in accordance with this Project Agreement, HMQ shall pay Project Co the Monthly OM&R Payments calculated as being due to Project Co in respect of each Payment Period following the Payment Commencement Date in accordance with Schedule 20 - Payment Mechanism.
(b)
Project Co shall not be entitled to any Monthly OM&R Payments for any period prior to the Payment Commencement Date.
(c)
Project Co shall not be entitled to any Monthly OM&R Payments in respect of a particular Phase prior to the relevant Phase Payment Commencement Date.
34.5
Adjustments to Payment Periods
(a)
The Annual OM&R Payment payable in respect of each of the first Contract Year and the last Contract Year shall be adjusted in accordance with Schedule 20 - Payment Mechanism.
34.6
Invoicing and Payment Arrangements
(a)
Within 5 Business Days following the end of each Payment Period, Project Co shall issue to HMQ an invoice for the amount of the Monthly OM&R Payment owing by HMQ to Project Co for such Payment Period, with such adjustments as provided in the Payment Adjustment Report issued in the previous Payment Period.
(b)
Project Co shall comply with all requirements of Schedule 20 - Payment Mechanism in respect of invoices and shall include with each invoice such supporting documentation as HMQ may reasonably require in connection with payments hereunder.
(c)
Each invoice shall be in a form agreed by the Parties, acting reasonably, and shall include as a minimum:
(i)
the Monthly OM&R Payment payable in respect of the applicable Payment Period;
(ii)
any adjustments set out in the Payment Adjustment Report issued in the previous Payment Period that have been approved by HMQ;
(iii)
any other adjustments to reflect overpayments and underpayments, as agreed between the Parties or determined in accordance with Schedule 27 - Dispute Resolution Procedure;
(iv)
any amount owing to HMQ under this Project Agreement;
(v)
any amount owing to Project Co under this Project Agreement;
(vi)
the net amount owing by HMQ to Project Co, or by Project Co to HMQ, as applicable; and
(vii)
a statutory declaration in form and in substance satisfactory to HMQ with respect to CLA compliance and payment to all lien claimants:
(B)
upon request by HMQ, from any Project Co Party.
(d)
The invoices issued to HMQ in respect of the first Monthly OM&R Payment following the Substantial Completion Payment Commencement Date shall include up-to-date copies of the parcel registers for all of the Lands, which subsearches of title in support thereof shall not be performed earlier than 45 days following the Substantial Completion Date.
(e)
HST shall be shown separately on all invoices from Project Co, together with Project Co?s HST registration number.
(f)
Upon agreement of the Parties, the form of invoice may be changed from time to time.
(g)
The HMQ Representative shall review each invoice submitted in accordance with this Section
34.6.
HMQ shall pay the amount stated in such invoice on the first Business Day of the Payment Period next following the Payment Period in which the invoice is received. Any such payment shall be subject to adjustment pursuant to Section 34.6(k).
(h)
HMQ shall not be obligated to make any payment to Project Co unless all conditions precedent applicable to such payment under this Project Agreement have been satisfied by Project Co. Further, HMQ shall not be obligated to pay an invoice delivered by Project Co after the second Payment Period following the Payment Commencement Date until Project Co has delivered the Payment Adjustment Report referred to in Section 34.6(i) for the previous Payment Period. In the event that Project Co delivers any Payment Adjustment Report later than the stipulated date in Section 34.6(i), HMQ?s obligation to pay the invoice issued by Project Co for the immediately following Payment Period shall be extended by the number of days by which Project Co was late in delivering the applicable Payment Adjustment Report to HMQ.
(i)
Within 5 Business Days following the end of each Payment Period, Project Co shall also submit to HMQ:
(i)
a Performance Monitoring Report in respect of the Payment Period just ended (as further described in Part 8 of Schedule 11 – Quality Management); and
(ii)
a report (a “Payment Adjustment Report”) setting out any adjustments required between the actual Monthly OM&R Payments determined by Project Co to be owing by HMQ to Project Co in respect of the Payment Period just ended and the amount that was paid by HMQ during such Payment Period, including details of:
(A)
all Deductions in relation to Availability Failures;
(B)
all Deductions in relation to Quality Failures; and
(C)
any Gainshare Adjustment or Painshare Adjustment.
(j)
Project Co shall include with each Payment Adjustment Report such supporting documentation as is reasonably required to substantiate and confirm the adjustments set out in each Payment Adjustment Report.
(k)
Within 10 Business Days of receipt by HMQ of the Payment Adjustment Report, the HMQ Representative shall:
(i)
determine and advise Project Co that the Payment Adjustment Report is approved by HMQ, in which case the adjustments set out therein will be reflected by Project Co in the invoice next issued by Project Co; or
(ii)
if HMQ disputes Project Co?s entitlement to any part of the amounts set out therein, notify Project Co in writing of that part of the amounts (insofar as at the time of such notice HMQ is reasonably able to quantify it) which HMQ disputes and submit to Project Co such supporting documentation as is reasonably required to substantiate and confirm such claim. In such event, HMQ shall withhold payment of any disputed amount pending agreement or determination of Project Co?s entitlement to the disputed amount in accordance with Section 34.9.
34.7
Electronic Invoicing
(a)
Project Co shall cooperate with the reasonable requirements of HMQ, and shall submit its invoices and all other documentation relating to this Project Agreement in a form and with the structure and content as is reasonably required to be compatible with HMQ?s information systems.
34.8
Final Payment Periods
(a)
At the beginning of each of the final 3 Payment Periods immediately prior to the Expiry Date, HMQ shall estimate, acting reasonably, the adjustments to the Monthly OM&R Payments for each such Payment Period. HMQ may withhold the amounts that it has reasonably estimated for such adjustments from amounts paid to Project Co during each of the final 3 Payment Periods.
(b)
Within 10 Business Days of receipt by HMQ of the applicable Payment Adjustment Report for each of the final 3 Payment Periods, the HMQ Representative shall either:
(i)
determine and advise Project Co that the Payment Adjustment Report is approved by HMQ and perform a reconciliation between the amount payable based on such Payment Adjustment Report and the amount HMQ previously paid in respect of the applicable Payment Period. Based on such reconciliation, either HMQ or Project Co shall pay to the other Party the amount properly owing in accordance with such reconciliation; or
(ii)
if HMQ disputes Project Co?s entitlement to any part of the amounts set out therein, notify Project Co in writing of that part of the amounts (insofar as at the time of such notice HMQ is reasonably able to quantify it) which HMQ disputes and submit to Project Co such supporting documentation as is reasonably required to substantiate and confirm such claim. In such event, the HMQ Representative shall perform a reconciliation between the undisputed amount payable based on such Payment Adjustment Report and the amount HMQ previously paid in respect of the applicable Payment Period. Based on such reconciliation, either HMQ or Project Co shall pay to the other Party the amount properly owing in accordance with such reconciliation, provided that HMQ shall withhold payment of any disputed amount pending agreement or determination of Project Co?s entitlement to the disputed amount in accordance with Section 34.9.
(a)
If HMQ, acting in good faith, disputes all or any part of a Payment Adjustment Report and/or the Monthly OM&R Payments payable thereunder, it shall notify Project Co in writing of that part of the amounts (insofar as at the time of such notice HMQ is reasonably able to quantify it) which HMQ disputes and submit to Project Co such supporting documentation as is reasonably required to substantiate and confirm such claim. The Parties shall use commercially reasonable efforts to resolve the Dispute in question within 10 Business Days of the aforesaid notice of the Dispute. If they fail to so resolve the Dispute within such period, the Dispute may be referred for resolution in accordance with Schedule 27 - Dispute Resolution Procedure. Following resolution of the Dispute, any amount which has been paid by HMQ that is determined not to have been payable shall be paid forthwith by Project Co to HMQ, and Project Co shall indemnify and hold harmless HMQ from and against any damages suffered or incurred resulting from such payment by HMQ as provided for at Section 56.1(e) on the basis that the due date was the date of the overpayment by HMQ. Following resolution of the Dispute, any amount which has been withheld by HMQ that is determined to have been payable shall be paid forthwith by HMQ to Project Co and HMQ shall indemnify and hold harmless Project Co from and against any damages suffered or incurred resulting from such withholding by HMQ as provided for at Section 56.2(c) on the basis that the due date was the date upon which such amount became payable to Project Co.
(a)
Unless specific timeframes are stipulated for payment of any amounts owing or payable by one Party to the other Party under this Project Agreement, such amounts shall be due within 30 days of receipt or deemed receipt of an invoice therefor.
(b)
Project Co shall maintain or cause to be maintained all holdbacks required pursuant to the CLA and shall only release holdbacks on being satisfied that no claims for lien can be claimed in respect of the Subcontracts for which holdbacks are to be released.
(a)
All payments under this Project Agreement shall be made in Canadian dollars and shall be electronically transferred, quoting the invoice number or description against which payment is made, in immediately available funds on the due date to a single bank account located in Canada as may be designated by the recipient from time to time by written notice to the other Party.
(b)
If the due date is not a Business Day, then the electronic transfer shall be made on the Business Day immediately succeeding such day.
34.12
[Intentionally Deleted]
(a)
The Parties agree that their rights of set-off at law or in equity are limited to the right of:
(i)
HMQ to set off against any amounts otherwise due to Project Co pursuant to the terms of this Project Agreement, any amounts (including, without limitation, any amounts payable in accordance with Section 56) which are due to HMQ by Project Co pursuant to the terms of this Project Agreement; and
(ii)
Project Co to set off against any amounts otherwise due to HMQ pursuant to the terms of this Project Agreement, any amounts (including, without limitation, any amounts payable in accordance with Section 56) which are due to Project Co by HMQ pursuant to the terms of this Project Agreement.
(a)
No payment hereunder shall be construed as an acceptance or approval of incomplete, defective or improper performance by Project Co of any of its obligations under this Project Agreement, nor shall it operate to relieve Project Co from the performance of any of its obligations under this Project Agreement which have not been performed.
34.15
Audit of Performance and Payment
(a)
Without limiting HMQ?s rights and Project Co?s obligations pursuant to Section 37.2, at any time and from time to time until 365 days after the Termination Date, HMQ may give notice to Project Co requiring an audit of any matter relating to performance of the Project Operations and payments by or to HMQ within the 7 year period prior to the date of such notice, including any Payment Adjustment Reports, and any other records, reports, information, documents or data relating to performance and payments to verify their accuracy, correctness and completeness.
(b)
HMQ shall appoint an auditor to perform and complete such audit at HMQ?s cost and expense and pursuant to terms of reference determined by HMQ.
(c)
Within a reasonable time following receipt of a notice referred to in Section 34.15(a), Project Co shall make available to HMQ?s auditor, any Payment Adjustment Reports, and any other records, reports, information, documents or data relating to performance and payments.
(d)
HMQ shall notify Project Co of the results of the audit, and if HMQ?s auditor discovers any inaccuracy, incorrectness or incompleteness, then, subject to Project Co?s right to dispute the same in accordance with Schedule 27 - Dispute Resolution Procedure:
(i)
Project Co shall:
(A)
remedy any such inaccuracy, incorrectness or incompleteness and issue a revision to the applicable Payment Adjustment Report or other record, report, information, document or data; and
(B)
where the inaccuracy, incompleteness or incorrectness has resulted in any material overpayment by HMQ, reimburse HMQ for all costs relating to the auditor and audit to a maximum amount that is the lesser of:
(I)
the actual costs relating to the auditor and audit; or
an amount equal to the amount of any overpayment;
whether or not material, by HMQ, Project Co shall reimburse HMQ for the amount of such overpayment and, further, shall indemnify and hold harmless HMQ from and against any damages suffered or incurred resulting from such overpayment by HMQ as provided for at Section 56.1(e) from the date of each such overpayment; and
(iii)
where the inaccuracy, incompleteness or incorrectness has resulted in any underpayment by HMQ, whether or not material, HMQ shall pay Project Co the amount of such underpayment and, further, shall indemnify and hold harmless Project Co from and against any damages suffered or incurred resulting from such underpayment by HMQ as provided for at Section 56.2(c) from the date of each such underpayment.
34.16
No Other Entitlement
(a)
Project Co shall not be entitled to any payments, compensation, rights, remedies, benefits or entitlements under or in connection with this Project Agreement, except as specifically and expressly set out in this Project Agreement.
(a)
All amounts specified in this Project Agreement are expressed exclusive of HST but inclusive of all other Taxes. Except as specified in Section 35.1(c), applicable HST shall be paid simultaneously with any amount due hereunder, including, for clarity, any compensation on termination.
(b)
HMQ shall pay, when due and payable, all property taxes or payments in lieu of property taxes that are assessed in respect of ownership or use of the Site or Parkway.
(c)
Within 3 weeks of the end of the month in which either a Phase Substantial Completion or Substantial Completion occurs, HMQ shall pay to Project Co all HST payable in accordance with paragraph 168(3)(c) of the Excise Tax Act (Canada) in respect of the construction of the relevant Phase of the Parkway, as applicable (if any) for remittance to the Canada Revenue Agency, which amount, if any, shall be set out in an invoice issued by Project Co to HMQ upon the occurrence of Phase Substantial Completion of each of Phase One and Phase Two and of Substantial Completion and shall reflect the capital cost of construction of each Phase, as applicable, set out in the Financial Model, which shall serve as a reasonable estimate of the full consideration for Phase Substantial Completion of each of Phase One and Phase Two and Substantial Completion respectively. For clarity, the amount of each payment made by HMQ to Project Co pursuant to paragraph 168(3)(c) of the Excise Tax Act (Canada) does not include any HST amounts already paid by HMQ to Project Co on the Phase One Substantial Completion Payment, Phase Two Substantial Completion Payment or Substantial Completion Payment, as applicable.
(d)
Subject to Section 35.1(e), in each Monthly OM&R Payment invoice provided by Project Co to HMQ, Project Co shall show on a distinct line of the invoice the Monthly Previously Paid HST Amount used to determine the amount of unpaid HST payable by HMQ on such Monthly OM&R Payment. For clarity, a Monthly Previously Paid HST Amount must be credited to HMQ on each Monthly OM&R Payment invoice.
(e)
HMQ shall pay all applicable HST properly payable in accordance with the Excise Tax Act (Canada) by HMQ upon and in connection with payments by HMQ to Project Co under this Project Agreement.
35.2
Changes in Recoverability of Tax Credits
(a)
HMQ will pay to Project Co from time to time, as the same is incurred by Project Co, amounts equal to any Irrecoverable Tax to the extent such Irrecoverable Tax results from a Change in Law. Project Co will pay to HMQ from time to time, as the same is incurred by Project Co, amounts equal to any Recoverable Tax to the extent such Recoverable Tax results from a Change in Law.
(b)
For the purposes of this Section 35.2, the term “Irrecoverable Tax” means HST or an irrecoverable sales tax levied by the Legislative Assembly of Ontario in lieu of all or a portion of HST incurred by Project Co in respect of the supply of any good or service to HMQ which is consumed, used or supplied, or to be consumed, used or supplied, exclusively by Project Co in the course of carrying out the Works or otherwise performing the Project Operations to the extent that Project Co is unable to recover or be credited with input tax credits, refunds, rebates or exemptions for such HST, or after obtaining an input tax credit, is required to pay an additional amount to the Canada Revenue Agency equal to all or part of the input tax credit claimed.
(c)
For the purposes of this Section 35.2, the term “Recoverable Tax” means HST incurred by Project Co in respect of the supply of any good or service to HMQ which is consumed, used or supplied, or to be consumed, used or supplied, exclusively by Project Co in the course of carrying out the Works or otherwise performing the Project Operations to the extent that Project Co is able to recover or be credited with input tax credits, refunds, rebates or exemptions for such HST.
35.3
Information and Assistance Provided by Project Co
(a)
Project Co shall, at HMQ?s request and cost, assist HMQ in applying for and obtaining all remissions and credits of HST to which HMQ is entitled.
(b)
HMQ may apply for a global or general exemption, waiver, remission, or refund of some or all Taxes which may otherwise be applicable in relation to this Project Agreement. Project Co shall, at HMQ?s cost, assist HMQ in making any applications for such global or general exemption, waiver, remission or refund and shall provide HMQ with such documentation as HMQ may reasonably require to support such application and, in any event, shall provide such consent as HMQ may require. Any exemption, waiver, remission, refund or other recovery of Taxes obtained by HMQ through such application shall accrue to the sole benefit of HMQ.
(c)
Project Co will provide HMQ with any information reasonably requested by HMQ from time to time in relation to the HST chargeable in accordance with this Project Agreement and payable by HMQ to Project Co from time to time.
35.4
Residency – Income Tax Act (Canada)
(a)
Project Co shall not undertake any action or transaction that, if undertaken, would cause or result in Project Co ceasing to be a Canadian partnership for purposes of the Income Tax Act (Canada) or any Partner becoming a Non-Resident without HMQ?s prior written consent, which consent may be withheld in HMQ?s sole discretion.
(a)
Project Co shall not, without the prior written consent of HMQ (which consent may be withheld in its sole discretion), undertake any action or transaction that, if undertaken, would cause HMQ or any HMQ Party to have (or result in HMQ or any HMQ Party having) any obligation to deduct, withhold or remit any Taxes that are required by Applicable Law to be deducted, withheld or remitted from any amounts paid or credited to Project Co or any Project Co Party under this Project Agreement or under any other Project Document.
(a)
If (i) Project Co ceases to be a Canadian partnership for purposes of the Income Tax Act (Canada) or any Partner becomes a Non-Resident, or (ii) HMQ or any HMQ Party is or becomes required by Applicable Law to deduct and withhold any amount in respect of Taxes on or in respect of any amounts paid or credited to Project Co or a Project Co Party by HMQ or any HMQ Party under this Project Agreement or under any of the Project Documents, then HMQ or any HMQ Party shall be entitled to make any applicable deductions or withholdings from any amount paid or credited or to be paid or credited to Project Co or a Project Co Party on or after the date on which (A) Project Co ceases to be a Canadian partnership for purposes of the Income Tax Act (Canada) or any Partner or the Project Co Party becomes a Non-Resident and at all times while it remains a Non-Resident; or (B) HMQ or any HMQ Party is required by Applicable Law to deduct or withhold amounts in respect of any such amounts, in each case, in respect of all Taxes that are required by Applicable Law to be deducted or withheld from amounts paid or credited to a NonResident or otherwise as required by Applicable Law; and all amounts paid or credited by HMQ or any HMQ Party under this Project Agreement or under any other Project Document to Project Co or a Project Co Party shall be paid or credited net of such deductions or withholdings.
(b)
If (i) Project Co ceases to be a Canadian partnership for purposes of the Income Tax Act (Canada) or any Partner becomes a Non-Resident, or (ii) HMQ or any HMQ Party is or becomes required by Applicable Law to deduct and withhold any amount in respect of Taxes on or in respect of any amounts paid or credited to Project Co or a Project Co Party by HMQ or any HMQ Party under this Project Agreement or under any of the Project Documents, Project Co shall, in each case, indemnify and hold harmless HMQ and the HMQ Parties for (A) the full amount of all Taxes (“Indemnifiable Taxes”) that arise, are imposed on or are required to be paid by HMQ or any HMQ Party in respect of any amounts paid or credited by HMQ or any HMQ Party to Project Co or any Project Co Party under this Project Agreement or under any other Project Document as a result of either of the foregoing items less any amount withheld or deducted by HMQ or any HMQ Party (as applicable) in respect of such Taxes, and (B) any liability payable or incurred in connection with Indemnifiable Taxes (including penalties, interest and reasonable expenses associated with Tax compliance, reporting and contesting such liability for Indemnifiable Taxes, including reasonable professional expenses payable or incurred in connection therewith) arising from or with respect to Indemnifiable Taxes, whether or not they were correctly or legally asserted (“Associated Liabilities”). Payment under this indemnification shall be made within 30 days from the date HMQ makes written demand for it. A certificate containing reasonable detail as to the amount of Indemnifiable Taxes and Associated Liabilities submitted to Project Co by HMQ shall be conclusive evidence, absent manifest error, of the amount due from Project Co to HMQ. HMQ shall be entitled to exercise its rights of set-off under Section 34.13 against any amounts owing under this indemnification.
36.1
Appointment of Custodian
(a)
On or prior to Financial Close, the Parties shall appoint a suitably qualified and experienced person to act as the custodian for the purposes of this Project Agreement, and shall enter into an agreement with the Custodian substantially in the form of Schedule 3 - Custody Agreement.
36.2
Delivery and Use of Financial Model
(a)
In accordance with Schedule 2 - Completion Documents, Project Co shall deliver copies of the Financial Model (1 printed copy and 2 copies on CD-Rom) to HMQ and the Custodian to be held in custody on terms to be agreed by the Parties.
(b)
Following the approval by HMQ of any amendment to the Financial Model, Project Co shall promptly deliver copies of the revised Financial Model, in the same form as the original Financial Model (or such other form as may be agreed by the Parties from time to time), to HMQ and the Custodian.
(c)
The Parties shall instruct the Custodian to keep both a hard copy and an electronic copy of all versions of the Financial Model.
(d)
Project Co hereby grants to HMQ an irrevocable, royalty free, perpetual, non-exclusive and transferable licence, including the right to grant sub-licences, to use the Financial Model or any revised Financial Model for any purpose in connection with this Project Agreement, whether during or after the Project Term.
(e)
For greater certainty, Project Co acknowledges and agrees that HMQ shall not be liable to Project Co for, and Project Co shall not seek to recover from HMQ or any HMQ Party, any damages, losses, costs, liabilities or expenses which may arise (whether in contract, tort or otherwise) as a result of any errors in the Financial Model.
37.
RECORDS, INFORMATION AND AUDIT
(a)
Project Co shall comply with Schedule 26 - Record Provisions.
37.2
Information and General Audit Rights
(a)
Project Co shall provide and shall cause each Subcontractor to provide to HMQ all information, reports, documents, records and the like, including as referred to in Schedule 26 - Record Provisions, in the possession of, or available to, Project Co as HMQ may reasonably require from time to time for any purpose in connection with this Project Agreement, other than Sensitive Information. Project Co shall use commercially reasonable efforts to ensure that, for such purpose, all such information, reports, documents, records and the like in the possession of, or available to, the Construction Contractor and, if applicable, any OM&R Provider, shall be available to Project Co and Project Co shall include relevant terms in all Subcontracts to this effect.
(b)
Project Co shall also provide to HMQ, and shall require each Subcontractor, including the Construction Contractor and, if applicable, any OM&R Provider, to provide to HMQ (at HMQ?s reasonable cost), all information, reports, documents, records and the like required to be provided pursuant to Section 37.2(a) which subsequently come into the possession of, or become available to, Project Co or each Subcontractor, as HMQ may reasonably require from time to time to enable HMQ to provide reports, notices, returns and the like pursuant to Applicable Law, including information and documentation pertaining to the physical condition of the Parkway, security, health and safety, fire safety, emergency preparedness, environmental matters, employees and human resources related matters, other than Sensitive Information.
(c)
Project Co shall promptly after receipt provide HMQ with a copy of any material notice, order, direction, requirement or other similar communication received by it or by any Subcontractor from any Governmental Authority in relation to any of the Project Operations or the Parkway, and Project Co shall include relevant terms in all Subcontracts to this effect.
(d)
Project Co shall promptly notify HMQ of any actions, suits, proceedings, or investigations commenced, pending or threatened against Project Co or, to Project Co?s knowledge, any Subcontractor at law or in equity before any Governmental Authority or arbitral body (whether or not covered by insurance) that individually or in the aggregate could result in any material adverse effect on the business, properties, or assets or the condition, financial or otherwise, of Project Co or in any impairment of its ability to perform its obligations under this Project Agreement.
(e)
All information, reports, documents and records in the possession of, or available to, Project Co, including as referred to in Schedule 26 - Record Provisions, which are required to be provided to or available to HMQ hereunder, shall be subject and open to inspection and audit by HMQ at any time and from time to time, which inspection and audit shall take place during normal business hours and at Project Co?s normal places of business unless HMQ and Project Co otherwise agree. HMQ shall also have the right to monitor and audit the performance of any and all parts of the Project Operations wherever located, and Project Co shall cooperate with, and shall require each Subcontractor to cooperate with, and provide access to the representatives of HMQ monitoring and auditing such parts of the Project Operations, including providing them with access and copies (at HMQ?s reasonable cost) of all relevant information, reports, documents and records pertaining to the performance of such parts of the Project Operations. Except as otherwise provided herein, all of HMQ?s costs for the inspections, audits and monitoring shall be borne by HMQ.
(f)
In conducting an audit of Project Co under Section 37.2(e) or as otherwise provided under this Project Agreement, HMQ shall have all rights necessary or incidental to conducting an audit, including the right to have access to and inspect and take copies (at HMQ?s reasonable cost) of all books and records of Project Co required to be provided to or available to HMQ hereunder, upon reasonable notice and at reasonable times. Project Co shall fully cooperate with HMQ and its auditors in the conduct of any audits, including by making available all such records and accounts (other than Sensitive Information) in existence at that time as they may require to perform a full and detailed audit, and Project Co further agrees to promptly review and settle with HMQ all matters arising from such audits, including the refunding of monies to HMQ where applicable. At the reasonable request of HMQ?s auditors, Project Co shall provide such information, reports, documents and records as HMQ?s auditors may reasonably require, other than Sensitive Information.
(g)
HMQ?s rights pursuant to this Section 37.2 shall be in addition to, and shall not limit, any other audit, information, inspection or similar rights under this Project Agreement.
(h)
HMQ?s rights pursuant to this Section 37.2 shall not limit or restrict any Governmental Authority?s right of review, audit, information or inspection under Applicable Law. HMQ?s right pursuant to this Section 37.2 may also be exercised by the Auditor General of Ontario, Her Majesty the Queen in Right of Canada and the Auditor General of Canada without the requirement for further action on the part of HMQ.
37.3
Delivery of Reports to Infrastructure Ontario
(a)
During the Operational Term, in addition to Project Co?s obligations pursuant to this Section 37, Project Co shall provide IO with a copy of all reports required pursuant to the Project Agreement including, but not limited to, the Performance Monitoring Report, the Payment Adjustment Report, the Energy Analysis Report, the Joint Insurance Cost Report and any other reports which are required to be delivered to HMQ pursuant to this Project Agreement and which are requested by IO.
38.1
Performance after Change in Law
(a)
Following any and all Changes in Law, Project Co shall perform the Project Operations in accordance with the terms of this Project Agreement, including in compliance with Applicable Law.
(a)
On the occurrence of a Works Change in Law:
(i)
either Party may give notice to the other of the need for a Variation as a result of such Works Change in Law;
(ii)
the Parties shall meet within 10 Business Days of such notice to consult with respect to the effect of the Works Change in Law and to reach an agreement on whether a Variation is required as a result of such Works Change in Law, and, if the Parties have not, within 10 Business Days of this meeting, reached an agreement, either Party may refer the question of whether a Works Change in Law has occurred or the effect of any Works Change in Law for resolution in accordance with Schedule 27 - Dispute Resolution Procedure; and
(iii)
HMQ shall, within 10 Business Days of agreement or determination that a Variation is required, issue a Variation Enquiry and the relevant provisions of Schedule 22 - Variation Procedure shall apply except that:
(A)
Project Co may only object to any such Variation Enquiry on the grounds that the implementation of the Variation would not enable it to comply with the Works Change in Law;
(B)
Project Co shall be responsible for obtaining all Project Co Permits, Licences and Approvals required in respect of the Variation;
(C)
HMQ shall not be entitled to withdraw any such Variation Enquiry unless the Parties otherwise agree;
(D)
Project Co shall proceed to implement the Variation within such period as will enable it to comply with the Works Change in Law as soon as reasonably practicable; and
(E)
Project Co shall not be entitled to any payment or other compensation or relief from performance of its obligations under this Project Agreement in respect of any Works Change in Law or associated Variation other than as established pursuant to Schedule 22 - Variation Procedure; provided that, notwithstanding the provisions of Schedule 22 – Variation Procedure, if one or more Works Change(s) in Law increase(s) the cost to Project Co of providing the Project Operations, Project Co shall only be entitled to payment or compensation for such costs as follows (for greater certainty, determined on an aggregate basis for all Works Changes in Law prior to the Termination Date):
(I)
as to the first $[REDACTED] of such costs, $[REDACTED];
as to the next $[REDACTED] of such costs, [REDACTED]% of such
costs; and
as to any such costs in excess of $[REDACTED], [REDACTED]% of
such costs.
(a)
On the occurrence of a Relevant Change in Law, either Party shall be entitled to seek compensation for any increase or decrease (as the case may be) in the net cost to Project Co of performing the Project Operations so as to put such Party in no better and no worse position than it would have been in had the Relevant Change in Law not occurred. Any such compensation shall be calculated in accordance with this Section 38.3.
(b)
On the occurrence of a Relevant Change in Law:
(i)
either Party may give notice to the other of the need for a Variation as a result of such Relevant Change in Law;
(ii)
the Parties shall meet within 10 Business Days of such notice to consult with respect to the effect of the Relevant Change in Law and to reach an agreement on whether a Variation is required as a result of such Relevant Change in Law, and, if the Parties have not, within 10 Business Days of this meeting, reached an agreement, either Party may refer the question of whether a Relevant Change in Law has occurred or the effect of any Relevant Change in Law for resolution in accordance with Schedule 27 - Dispute Resolution Procedure; and
(iii)
HMQ shall, within 10 Business Days of agreement or determination that a Variation is required, issue a Variation Enquiry and the relevant provisions of Schedule 22 - Variation Procedure shall apply except that:
(A)
Project Co may only object to any such Variation Enquiry on the grounds that the implementation of the Variation would not enable it to comply with the Relevant Change in Law;
(B)
Project Co shall be responsible for obtaining all Development Approvals and Project Co Permits, Licences and Approvals required in respect of the Variation;
(C)
HMQ shall not be entitled to withdraw any such Variation Enquiry unless the Parties otherwise agree;
(D)
Project Co shall proceed to implement the Variation within such period as will enable it to comply with the Relevant Change in Law as soon as reasonably practicable;
(E)
the Parties shall, without prejudice to their respective general obligations to comply with the terms of this Project Agreement:
(I)
use commercially reasonable efforts to mitigate the adverse effects of any Relevant Change in Law and take commercially reasonable steps to minimize any increase in costs arising from such Relevant Change in Law; and
use commercially reasonable efforts to take advantage of any positive or
beneficial effects of any Relevant Change of Law and take commercially
reasonable steps to maximize any reduction in costs arising from such
Relevant Change in Law; and
38.3
, and any calculation of compensation shall take into consideration, inter alia:
(I)
any failure by a Party to comply with Section 38.3(b)(iii)(E);
the extent to which a Party has been, or shall be, compensated in respect
of such Change in Law as a result of any indexation or adjustment of the
Monthly OM&R Payments under this Project Agreement;
any increase or decrease in its costs resulting from such Relevant Change
in Law; and
any amount which Project Co recovers under any insurance policy (or
would recover if it complied with its obligations to insure under this
Project Agreement or the terms of any policy of insurance required under
this Project Agreement) which amount, for greater certainty, shall not
include the amount of any excess or deductibles or any amount above the
maximum insured amount applicable to any such insurance policy.
40 or otherwise in this Project Agreement, relief in respect of any Relevant Change in Law, or the consequences thereof, other than in accordance with this Section 38.3, and Section 41 shall be construed accordingly.
(d)
In relation to a Relevant Change in Law that results in a net increase or decrease in costs incurred by Project Co in delivery of the Project Operations, taking into consideration, inter alia, Section (b)(iii)(E), if the cost impact of such Relevant Change in Law in a given Contract Year (in aggregate with all other such Relevant Changes in Law that have a cost impact in the same Contract Year) amounts to less than $[REDACTED] (index linked) in that Contract Year, neither HMQ nor Project Co shall be entitled to any payment or compensation pursuant to this Section 38.3 or otherwise in respect of the cost impact of that Relevant Change in Law in that Contract Year, or, except as provided in Section 40 or otherwise in this Project Agreement, any other relief in respect of such Relevant Change in Law in that Contract Year.
(a)
Except as otherwise expressly provided in this Project Agreement, Schedule 22 - Variation Procedure shall apply in respect of Variations and Small Works.
(b)
For greater certainty, Project Co shall, subject to and in accordance with Schedule 22 - Variation Procedure, be entitled to a Variation if a written direction issued by or on behalf of HMQ to Project Co or any Project Co Party results in a variation, addition, reduction, substitution, omission, modification, deletion, removal or other change to the whole or any part of the Project Operations, including in relation to the whole or any part of the Works or the OM&R Work.
(c)
Without limiting Project Co?s obligations pursuant to Section 9.3 and Schedule 22 - Variation Procedure, Project Co shall include in each Subcontract, and shall cause each Project Co Party to comply with, the Variation Procedure, to the extent that the Variation Procedure requires Project Co to minimize the cost and impact of Variations, including Variations as to scope of the Works or OM&R Work.
39.2
Innovation and Value Engineering
(a)
Project Co acknowledges that HMQ at all times desires to reduce the Monthly OM&R Payments and the overall cost to HMQ of the Parkway, the Works and the OM&R Work, and Project Co agrees to cooperate, explore and work with HMQ in investigating and considering innovation and value engineering and other cost saving measures.
(b)
If an innovation and value engineering proposal is at any time and from time to time originated and initiated solely by Project Co, Project Co may make a proposal (the “Innovation Proposal”) by notice to HMQ.
(c)
The Parties agree that the subject of an Innovation Proposal shall not include:
(i)
any Variation Enquiry initiated by HMQ;
(ii)
any Variation resulting from a Change in Law; or
(iii)
any change to the MTO Activities.
(d)
The Innovation Proposal must:
(i)
set out sufficient detail to enable HMQ to evaluate the Innovation Proposal in full;
(ii)
specify Project Co?s reasons and justification for proposing the Innovation Proposal;
(iii)
request HMQ to consult with Project Co with a view to deciding whether to agree to the Innovation Proposal and, if so, what consequential changes HMQ requires as a result;
(iv)
indicate any implications of the Innovation Proposal, including a difference between the existing and the proposed requirements of this Project Agreement, and the comparative advantages of each to Project Co and HMQ;
(v)
indicate, in particular, whether an increase or decrease to the Monthly OM&R Payments is proposed, and, if so, give a detailed cost estimate of such proposed change;
(vi)
indicate if there are any dates by which a decision by HMQ must be made;
(vii)
indicate the capital cost of the Innovation Proposal, including the cost of financing; and
(viii)
include such other information and documentation as may be reasonably requested by HMQ to fully evaluate and consider the Innovation Proposal.
(e)
HMQ shall, acting in good faith, evaluate the Innovation Proposal, taking into account all relevant issues, including whether:
(i)
a change in the Monthly OM&R Payments will occur;
(ii)
the Innovation Proposal affects the quality of the Works, the Parkway or the OM&R Work, or the likelihood of successful completion of the Works or performance of the OM&R Work;
(iii)
the Innovation Proposal will benefit or interfere with the efficient operation of the Parkway;
(iv)
the Innovation Proposal will interfere with the relationship between HMQ and third parties;
(v)
the financial strength of Project Co is sufficient to deliver the changed Works or perform the changed OM&R Work, as applicable;
(vi)
the residual value of the Parkway is affected;
(vii)
the Innovation Proposal will change the Rehabilitation Payment;
(viii)
the Innovation Proposal materially affects the risks or costs to which HMQ is exposed; or
(ix)
any other matter HMQ considers relevant.
(f)
HMQ may request clarification or additional information regarding the Innovation Proposal, and may request modifications to the Innovation Proposal.
(g)
HMQ may, in its sole discretion, accept or reject any Innovation Proposal.
(h)
If HMQ accepts the Innovation Proposal, with or without modification, the relevant Innovation Proposal shall be documented and evidenced by a written Variation Confirmation, together with any other documents necessary to amend this Project Agreement or any relevant Project Documents to give effect to the Innovation Proposal.
(i)
Unless HMQ specifically agrees to an increase in the Monthly OM&R Payments in accepting an Innovation Proposal pursuant to Section 39.2(h), there shall be no increase in the Monthly OM&R Payments as a result of an Innovation Proposal.
(j)
If, after taking into account the agreed implementation and reasonably allocated development costs incurred by Project Co in connection with the Innovation Proposal and any other uses of the Innovation Proposal by Project Co, the Innovation Proposal causes or will cause the costs of Project Co and/or of a Subcontractor to decrease, the net savings in the costs of Project Co and/or the Subcontractor will be shared equally by Project Co and HMQ, and HMQ?s share of the net savings shall, as agreed by the Parties, be reflected in either a lump sum payment or in a reduction of the Monthly OM&R Payments.
(k)
If an Innovation Proposal causes or will cause the costs of HMQ to decrease, the net savings in the costs of HMQ will be shared as follows:
(i)
equally by Project Co and HMQ for the first 5 years following the implementation of the Innovation Proposal; and
(ii)
thereafter, HMQ shall be entitled to the full benefit of the net savings in costs (if applicable),
and Project Co?s share of the net savings shall, at HMQ?s sole option, be reflected in either a lump sum payment or in an increase in the Monthly OM&R Payments.
(a)
For the purposes of this Project Agreement, “Delay Event” means any of the following events or circumstances only to the extent, in each case, that it affects the Initial Works so as to cause a delay in achieving a Phase Substantial Completion by the relevant Scheduled Phase Substantial Completion Date, or achieving Substantial Completion by the Scheduled Substantial Completion Date:
(i)
the implementation of a Variation to the extent Project Co has identified such delay in its Estimate and such delay has been documented in the Variation Confirmation;
(ii)
any breach by HMQ of any of HMQ?s obligations under this Project Agreement (including any delay by HMQ in giving access to the Site pursuant to Section 14.1, any obstruction of the rights afforded to Project Co under Section 14.1, or any delay by HMQ in carrying out its obligations set forth in Schedule 10 - Review Procedure), except to the extent that any such breach is caused, or contributed to, by Project Co or any Project Co Party;
(iii)
an uncovering of the Works pursuant to Section 21.3 where such Works are not subsequently found to be defective or not in compliance with the requirements of this Project Agreement (including the Output Specifications, the Project Co Proposal Extracts and the Design Data), unless such uncovering of the Works was reasonable in the light of other defects or non-compliance previously discovered by HMQ in respect of the same or a similar component of the Works or subset of the Works;
(iv)
a requirement pursuant to Sections 16.2(b)(i) or 16.2(d) for Project Co to perform any alteration, addition, demolition, extension or variation in the Initial Works, or to suspend or delay performance of the Initial Works, upon the discovery of Contamination, which alteration, addition, demolition, extension or variation in the Initial Works, or suspension or delay in the performance of the Initial Works, would not otherwise be required under this Project Agreement;
alteration, addition, demolition, extension or variation in the Initial Works, or to suspend or delay performance of the Initial Works, upon the discovery of any fossils, artifacts and other objects having artistic, historic, archaeological or monetary value, including human remains and burial sites, which alteration, addition, demolition, extension or variation in the Initial Works, or suspension or delay in the performance of the Initial Works, would not otherwise be required under this Project Agreement;
(vi)
a requirement pursuant to Sections 16.4(a) or 16.4(c) for Project Co to perform any alteration, addition, demolition, extension or variation in the Initial Works, or to suspend or delay performance of the Initial Works, upon the discovery of Species-at-Risk for which HMQ is responsible, which alteration, addition, demolition, extension or variation in the Initial Works, or suspension or delay in the performance of the Initial Works, would not otherwise be required under this Project Agreement;
(vii)
subject to compliance by Project Co with the provisions of Section 9.7, damage, costs or delays from the execution of Additional Works (other than Other Early Works) or Third Party Works on the Lands by Additional Contractors or Third Party Contractors, as applicable, in the circumstances described in Section 9.7(e);
(viii)
a requirement pursuant to Section 13.1 of Schedule 27 - Dispute Resolution Procedure for Project Co to proceed in accordance with the direction of HMQ during the pendency of a Dispute, which Dispute is subsequently determined in Project Co?s favour;
(ix)
an event of Force Majeure;
(xi)
a Relevant Change in Law; or
(xii)
any change to the terms, conditions or requirements of the Environmental Assessments or the ESA Permits, except in each case to the extent resulting from any change by Project Co in the design of the Project or from any other act or omission on the part of Project Co.
(b)
For greater certainty: (i) prior to Substantial Completion an event described above may constitute a Delay Event with respect to one or more Phases that have not achieved Phase Substantial Completion while simultaneously entitling Project Co to a Variation or constituting an Excusing Cause with respect to other Phases that have achieved Phase Substantial Completion, and (ii) no event shall constitute a Delay Event with respect to a Phase and also entitle Project Co to a Variation or constitute an Excusing Cause with respect to the same Phase.
40.2
Consequences of a Delay Event
(a)
Project Co shall provide written notice to the HMQ Representative and the Independent Certifier within 5 Business Days of becoming aware of the occurrence of Delay Event. Project Co shall, within 10 Business Days after such notification, provide further written details to the HMQ Representative and the Independent Certifier which shall include:
(i)
a statement of which Delay Event the claim is based upon;
(ii)
details of the circumstances from which the Delay Event arises;
(iii)
details of the contemporary records which Project Co shall maintain to substantiate its claim for extra time;
(iv)
details of the consequences (whether direct or indirect, financial or non-financial) which such Delay Event may have upon any relevant Scheduled Phase Substantial Completion Date or the Scheduled Substantial Completion Date, or both, as applicable; and
(v)
details of any measures which Project Co proposes to adopt to mitigate the consequences of such Delay Event.
(b)
As soon as possible but in any event within 3 Business Days of Project Co receiving, or becoming aware of, any supplemental information which may further substantiate or support Project Co?s claim, Project Co shall submit further particulars based on such information to the HMQ Representative and the Independent Certifier.
(c)
The HMQ Representative shall, after receipt of written details under Section 40.2(a), or of further particulars under Section 40.2(b), be entitled by written notice to require Project Co to provide such further supporting particulars as the HMQ Representative may reasonably consider necessary. Project Co shall afford the HMQ Representative and the Independent Certifier reasonable facilities for investigating the validity of Project Co?s claim, including, without limitation, on-site inspection.
(d)
Subject to the provisions of this Section 40, the HMQ Representative shall allow Project Co an extension of time equal to the delay caused by the Delay Event and shall fix one or more revised Scheduled Phase Substantial Completion Dates or a revised Scheduled Substantial Completion Date, or both, as applicable, as soon as reasonably practicable and in any event within 10 Business Days of the later of:
(i)
the date of receipt by the HMQ Representative of Project Co?s notice given in accordance with Section 40.2(a) and the date of receipt of any further particulars (if such are required under Section 40.2(c)), whichever is later; and
(ii)
the date of receipt by the HMQ Representative of any supplemental information supplied by Project Co in accordance with Section 40.2(b) and the date of receipt of any further particulars (if such are required under Section 40.2(c)), whichever is later.
(e)
For the avoidance of doubt, there shall be no extension to the Project Term as a result of any delay caused by a Delay Event.
(f)
If:
(i)
the HMQ Representative declines to fix a revised Scheduled Phase Substantial Completion Date or Scheduled Substantial Completion Date or both, as applicable;
(ii)
Project Co considers that a different Scheduled Phase Substantial Completion Date or Scheduled Substantial Completion Date or both, as applicable should be fixed; or
(iii)
there is a dispute as to whether a Delay Event has occurred,
then Project Co shall be entitled to refer the matter for determination by the Independent Certifier. The decision of the Independent Certifier may be disputed by either Party and referred for resolution in accordance with Schedule 27 - Dispute Resolution Procedure.
(a)
If Project Co is (or claims to be) affected by a Delay Event, Project Co shall, and shall require all Project Co Parties to, take and continue to take commercially reasonable steps:
(i)
to eliminate or mitigate the consequences of such event upon the performance of its obligations under this Project Agreement;
(ii)
to continue to perform its obligations under this Project Agreement to the extent possible notwithstanding the Delay Event; and
(iii)
to resume performance of its obligations under this Project Agreement affected by the Delay Event as soon as practicable.
(b)
To the extent that Project Co does not comply with its obligations under this Section 40.3, such failure shall be taken into account in determining Project Co?s entitlement to an extension of time pursuant to this Section 40.
(a)
For the purposes of this Project Agreement, “Compensation Event” means any event referred to in Sections 40.1(a)(ii), 40.1(a)(iii), 40.1(a)(iv), 40.1(a)(v), 40.1(a)(vi), 40.1(a)(vii), 40.1(a)(viii) and 40.1(a)(xii) to the extent it affects the Initial Works in respect of one or more Phases that have not achieved Phase Substantial Completion, as a direct result of which Project Co has incurred loss or expense, whether or not any of these events has also caused a delay.
(b)
For greater certainty: (i) prior to Substantial Completion an event described above may constitute a Compensation Event with respect to one or more Phases that have not achieved Phase Substantial Completion while simultaneously entitling Project Co to a Variation or constituting an Excusing Cause with respect to other Phases that have achieved Phase Substantial Completion, and (ii) no event shall constitute a Compensation Event with respect to a Phase and also entitle Project Co to a Variation or constitute an Excusing Cause with respect to the same Phase.
41.2
Consequences of a Compensation Event
(a)
If a Compensation Event occurs, Project Co?s sole right to compensation shall be as set out in this Section 41. For greater certainty, except as aforesaid, no other Delay Event shall entitle Project Co to receive any compensation, except as otherwise provided in:
(i)
Schedule 22 - Variation Procedure, in the case of a Delay Event referred to in Section
(ii)
Section 44, in the case of a Delay Event referred to in Section 40.1(a)(ix);
(iii)
Section 43, in the case of a Delay Event referred to in Section 40.1(a)(x); and
(iv)
Section 38, in the case of a Delay Event referred to in Section 40.1(a)(xi).
(b)
Subject to Sections 41.3 and 41.4, if it is agreed, or determined in accordance with Schedule 27 Dispute Resolution Procedure, that there has been a Compensation Event, Project Co shall be entitled to such compensation as would place Project Co in no better and no worse position than it would have been in had the relevant Compensation Event not occurred. For greater certainty, in respect of a Compensation Event that is also a Delay Event, such compensation will include amounts which, but for the Delay Event, would have been paid by HMQ to Project Co. Project Co shall promptly provide the HMQ Representative with any information the HMQ Representative may require in order to determine the amount of such compensation.
(c)
If HMQ is required to compensate Project Co pursuant to this Section 41.2, then HMQ may either pay such compensation as a lump sum payment or payments at times and in a manner to be agreed with Project Co, acting reasonably, or, alternatively, HMQ may request Project Co to agree to an adjustment to the Monthly OM&R Payments. If Project Co agrees to an adjustment to the Monthly OM&R Payments, then the provisions of Schedule 22 - Variation Procedure shall apply.
(a)
If Project Co is (or claims to be) affected by a Compensation Event, Project Co shall, and shall require all Project Co Parties to, take and continue to take commercially reasonable steps to minimize the amount of compensation due in accordance with this Section 41 in relation to any Compensation Event.
(b)
To the extent that Project Co does not comply with its obligations under this Section 41.3, such failure shall be taken into account in determining Project Co?s entitlement to relief pursuant to this Section 41.
(a)
The compensation payable to Project Co pursuant to this Section 41 shall be reduced by any amount which Project Co or a Project Co Party recovers, or is entitled to recover, under any insurance policy, or would have recovered if it had complied with the requirements of this Project Agreement in respect of insurance or the terms of any policy of insurance required under this Project Agreement, which amount, for greater certainty, shall not include any excess or deductibles or any amount over the maximum amount insured under any such insurance policy.
(a)
For the purposes of this Project Agreement, “Excusing Cause” means any of the following events or circumstances if it occurs after the Phase Substantial Completion Date of a Phase and to the extent, in each case, that it interferes adversely with, or causes a failure of, the performance of the OM&R Work:
(i)
the implementation of a Variation to the extent Project Co has identified any impact on the OM&R Work in its Estimate and such impact has been documented in the Variation Confirmation;
(ii)
any breach by HMQ of any of HMQ?s obligations under this Project Agreement (including any obstruction of the rights afforded to Project Co under Section 14.1), except to the extent that any such breach is caused, or contributed to, by Project Co or any Project Co Party;
(iii)
any deliberate or negligent act or omission of any Province Person or any failure by any Province Person (having regard to the interactive nature of the activities of such Province Person and Project Co) to take commercially reasonable steps to perform its activities in a manner which minimizes undue interference with Project Co?s performance of the OM&R Work, except to the extent:
(A)
any such act, omission or failure is caused, or contributed to, by Project Co or any Project Co Party;
(B)
the Province Person is acting in accordance with a recommendation or instruction of Project Co or any Project Co Party;
(C)
any such act, omission or failure was contemplated in Schedule 15 - Output Specifications or was otherwise provided for in this Project Agreement; or
(D)
the consequences of any such act, omission or failure would have been prevented by the proper performance of Project Co?s obligations under this Project Agreement;
(iv)
the implementation of any action taken by HMQ, or any suspension of Project Co?s obligation to deliver all or any part of the OM&R Work, or the compliance by Project Co with instructions given by HMQ, in each case in the circumstances referred to in Section 32;
(v)
the performance of any Small Works in accordance with the terms of this Project Agreement during the period of time agreed between HMQ and Project Co;
(vi)
any official or unofficial strike, lockout, work to rule or other labour-related action involving employees of any Province Person;
(vii)
the occurrence of any Contamination for which HMQ is responsible pursuant to Section
(viii)
the discovery of any Species-at-Risk for which HMQ is responsible pursuant to Section
(b)
For greater certainty: (i) prior to Substantial Completion an event described above may constitute an Excusing Cause with respect to one or more Phases that have achieved Phase Substantial Completion while simultaneously constituting a Delay Event or Compensation Event with respect to other Phases that have not achieved Phase Substantial Completion, and (ii) no event shall constitute an Excusing Cause with respect to a Phase and also constitute a Delay Event or a Compensation Event with respect to the same Phase.
42.2
Consequences of an Excusing Cause
(a)
Provided that the effect of an Excusing Cause is claimed by Project Co, in writing, within 10 Business Days of the date on which Project Co or any Project Co Party became aware of the occurrence of such Excusing Cause, then (subject to Sections 42.3 and 42.4):
(i)
any failure by Project Co to perform, and any poor performance of, any affected OM&R Work shall not constitute a breach of this Project Agreement by Project Co, no Failure Points shall accrue in respect of such failure and Project Co shall be relieved of its obligations to perform such OM&R Work for the duration and to the extent prevented by such Excusing Cause;
(ii)
any interference shall be taken into account in measuring the performance of any affected OM&R Work in accordance with the Performance Monitoring Program, which shall be operated as though the relevant OM&R Work had been performed free from such adverse interference;
(iii)
any interference shall be taken into account in operating the Payment Mechanism, which shall be operated as though any Availability Failure or Quality Failure resulting from such interference had not occurred, so that Project Co shall be entitled to payment under this Project Agreement as if there had been no such interference with the OM&R Work, provided however that Project Co shall not be entitled to any additional compensation, except as may be provided hereunder for compensation on termination of this Project Agreement, if this Project Agreement is terminated as provided herein;
(iv)
this Section 42.2 shall not limit HMQ?s entitlement to reimbursement pursuant to Section
(v)
HMQ shall reimburse Project Co for all incremental Direct Costs (including all applicable Taxes and all legal or professional services, legal costs being on a full indemnity basis) incurred by Project Co as a result of any Excusing Cause referred to in Section 42.1(a)(ii), 42.1(a)(iii), 42.1(a)(vi), 42.1(a)(vii), or 42.1(a)(viii), including costs arising from any steps taken to cure or mitigate against such events, together with any applicable margin for overhead and profit on such Direct Costs as set out in Schedule 22 Variation Procedure; and
(vi)
the Monthly OM&R Payments payable by HMQ shall be reduced by any savings in Direct Costs arising from Project Co being relieved of its obligations to perform the OM&R Work as otherwise provided herein, together with any applicable margin for overhead and profit on such Direct Costs as set out in Schedule 22 - Variation Procedure.
(a)
If Project Co is (or claims to be) affected by an Excusing Cause, Project Co shall, and shall require all Project Co Parties to, take and continue to take commercially reasonable steps:
(i)
to eliminate or mitigate the consequences of such event upon the performance of its obligations under this Project Agreement;
(ii)
to continue to perform its obligations under this Project Agreement to the extent possible notwithstanding the Excusing Cause; and
(iii)
to resume performance of its obligations under this Project Agreement affected by the Excusing Cause as soon as practicable.
(b)
To the extent that Project Co does not comply with its obligations under this Section 42.3, such failure shall be taken into account in determining Project Co?s entitlement to relief pursuant to this Section 42.
(a)
The compensation payable to Project Co pursuant to this Section 42 shall be reduced by any amount which Project Co or a Project Co Party recovers, or is entitled to recover, under any insurance policy, or would have recovered if it had complied with the requirements of this Project Agreement in respect of insurance or the terms of any policy of insurance required under this Project Agreement, which amount, for greater certainty, shall not include any excess or deductibles or any amount over the maximum amount insured under any such insurance policy.
(a)
For the purposes of this Project Agreement, “Relief Event” means any of the following events or circumstances to the extent, in each case, that it causes any failure by a Party to perform any of its obligations under this Project Agreement:
(i)
fire, explosion, lightning, storm, tempest, hurricane, tornado, flood, ionizing radiation (to the extent it does not constitute Force Majeure), earthquake, riot or civil commotion;
(ii)
failure by any Utility Company, Railway Company, local authority or other like body to perform works or provide services, provided, however, that a failure by any Utility Company to perform works or provide services in connection with the construction, installation or relocation of Utility Infrastructure in connection with the Initial Works shall not, in any event, be cause for a Relief Event, unless Project Co:
(A)
has performed its obligations under any applicable Utility Agreement and the relevant Utility Company has failed to meet its obligations thereunder; and
(B)
has made all, and is continuing to make any, commercially reasonable efforts to diligently enforce its legal rights under any applicable Utility Agreement and otherwise cause the Utility Company to perform those works or services;
(iii)
accidental loss or damage to the Works and/or the Parkway or any roads servicing the Site;
(iv)
without prejudice to any obligation of Project Co to provide stand-by power facilities in accordance with this Project Agreement, failure or shortage of power, fuel or transport;
(v)
blockade or embargo falling short of Force Majeure;
(vi)
any official or unofficial strike, lockout, work to rule or other labour-related action generally affecting the construction or road maintenance industry (or a significant sector of that industry) in the Province of Ontario; or
(vii)
any civil disobedience or protest action, including any action taken by any person or persons protesting or demonstrating against the carrying out of any part of the Project Operations or the construction and/or operation of roads in general, provided, however, that a civil disobedience or protest action shall not, in any event, be cause for a Relief Event unless Project Co has fully complied with Section 9.6;
provided, in each case, that such event does not arise (directly or indirectly) as a result of any act or omission of the Party claiming relief and (i) in the case of Project Co claiming relief, as a result of any act or omission of any Project Co Party or (ii) in the case of HMQ claiming relief, as a result of any act or omission of any Province Person.
43.2
Consequences of a Relief Event
(a)
Subject to Section 43.3:
(i)
no right of termination, other than either Party?s right to terminate this Project Agreement pursuant to Section 47.1, shall arise under this Project Agreement by reason of any failure by a Party to perform any of its obligations under this Project Agreement; and
(ii)
as soon as the events or circumstances constituting a Relief Event have ceased, any Failure Points accrued in respect of any failure by Project Co to perform any of its obligations under this Project Agreement shall be cancelled and any related Warning Notices and Monitoring Notices shall be withdrawn,
but only to the extent that such failure to perform is caused by the occurrence of a Relief Event (it being acknowledged and agreed by the Parties that all other rights and obligations of the Parties under this Project Agreement remain unaffected by the occurrence of a Relief Event). For greater certainty, HMQ shall be entitled to make Deductions in accordance with Schedule 20 - Payment Mechanism notwithstanding the cancellation of Failure Points pursuant to Section 43.2(a)(ii). Any Deduction to Project Co as a result of Relief Events referred to in Section 43.1(a)(v), 43.1(a)(vi), or 43.1(a)(vii) shall not exceed, in the aggregate, the amount that would be necessary to reduce payments to Project Co to an amount below the Senior Debt Service Amount.
(b)
In respect of a Relief Event that is also a Delay Event pursuant to Section 40.1(a)(x):
(i)
Project Co shall only be relieved of its obligations under this Project Agreement to the extent, if any, provided for in Section 40; and
(ii)
in respect of a Relief Event occurring prior to the Phase Substantial Completion Date of a Phase affected by that Delay Event and referred to in Section 43.1(a)(ii) (but only in respect of failure by a Utility Company to perform works or provide services), 43.1(a)(v), 43.1(a)(vi), or 43.1(a)(vii), on the earlier of (A) the Phase Substantial Completion Date of that Phase and (B) the date of payment of the HMQ Default Termination Sum, NonDefault Termination Sum or Prohibited Acts Termination Sum (and as a part thereof) in accordance with Schedule 23 – Compensation on Termination, HMQ shall pay to Project Co an amount equal to the Senior Debt Service Amount accrued and paid or which became payable in accordance with the Lending Agreements during the period of delay by Project Co or any Project Co Party to the Senior Lenders up to and including such date, together with interest thereon at the rate payable on the Senior Debt Amount, which, but for the Delay Event, would have been paid by HMQ to Project Co in respect of that Phase.
(c)
If a Relief Event occurs prior to the Substantial Completion Date, Project Co shall not be entitled to receive any compensation other than as expressly provided in Sections 43.2(b)(ii) and 49.
(d)
For greater certainty, notwithstanding Sections 43.2(b)(ii) and 43.2(c), during a Relief Event which occurs on or after the Phase Substantial Completion Date of a Phase that is not affected by such Relief Event, the provisions of Schedule 20 - Payment Mechanism as they relate to the portion of the Monthly OM&R Payment attributable to that Phase (determined by reference to Appendix D-1 and Appendix D-2 to Schedule 20 – Payment Mechanism) will continue to be in full force and effect.
(e)
During a Relief Event which occurs on or after the Substantial Completion Date, the provisions of Schedule 20 - Payment Mechanism will continue to be in full force and effect, subject to Section 43.2(a).
(f)
Subject to Section 49, Project Co?s sole right to payment or otherwise in relation to the occurrence of a Relief Event shall be as provided in this Section 43.
43.3
Mitigation and Process
(a)
Where a Party is (or claims to be) affected by a Relief Event, such Party shall take commercially reasonable steps to mitigate the consequences of the Relief Event upon the performance of its obligations under this Project Agreement, shall resume performance of its obligations affected by the Relief Event as soon as practicable and shall use commercially reasonable efforts to remedy its failure to perform.
(b)
To the extent that the Party claiming relief does not comply with its obligations under this Section 43.3, such failure shall preclude such Party?s entitlement to relief pursuant to this Section
(c)
The Party claiming relief shall give written notice to the other Party within 5 Business Days of such Party becoming aware of the relevant Relief Event. Such initial notice shall give sufficient details to identify the particular event claimed to be a Relief Event.
(d)
A subsequent written notice shall be given by the Party claiming relief to the other Party within a further 5 Business Days of the initial notice, which notice shall contain such relevant information relating to the failure to perform (or delay in performing) as is available, including, without limitation, the effect of the Relief Event on the ability of the Party to perform, the action being taken in accordance with Section 43.3(a), the date of the occurrence of the Relief Event, and an estimate of the period of time required to overcome the Relief Event and/or its effects.
(e)
The Party claiming relief shall notify the other as soon as the consequences of the Relief Event have ceased and of when performance of its affected obligations can be resumed.
(f)
If, following the issue of any notice referred to in Section 43.3(d), the Party claiming relief receives or becomes aware of any further information relating to the Relief Event and/or any failure to perform, such Party shall submit such further information to the other Party as soon as reasonably possible.
(a)
The compensation payable to Project Co pursuant to this Section 43 shall be reduced by any amount which Project Co or a Project Co Party recovers, or is entitled to recover, under any insurance policy, or would have recovered if it had complied with the requirements of this Project Agreement in respect of insurance or the terms of any policy of insurance required under this Project Agreement, which amount, for greater certainty, shall not include any excess or deductibles or any amount over the maximum amount insured under any such insurance policy.
(a)
For the purposes of this Project Agreement, “Force Majeure” means any of the following events or circumstances which directly causes either Party to be unable to perform all or a material part of its obligations under this Project Agreement:
(i)
war, civil war, armed conflict, terrorism, acts of foreign enemies or hostilities;
(ii)
nuclear or radioactive contamination of the Initial Works, the Parkway and/or the Site, unless Project Co or any Project Co Party is the source or cause of the contamination;
(iii)
chemical or biological contamination of the Initial Works, the Parkway and/or the Site from any event referred to in Section 44.1(a)(i);
(iv)
pressure waves caused by devices traveling at supersonic speeds; or
(v)
the discovery of any Species-at-Risk, fossils, artifacts and other objects having artistic, historic, archaeological or monetary value, including human remains and burial sites, which, as a result of Applicable Law, requires the Initial Works to be abandoned.
44.2
Consequences of Force Majeure
(a)
Subject to Section 44.3, the Party claiming relief shall be relieved from liability under this Project Agreement to the extent that, by reason of the Force Majeure, it is not able to perform its obligations under this Project Agreement.
(b)
In respect of an event of Force Majeure that is also a Delay Event pursuant to Section 40.1(a)(ix):
(i)
Project Co shall only be relieved of its obligations under this Project Agreement to the extent, if any, provided for in Section 40; and
(ii)
where such Delay Event causes a delay in achieving Phase Substantial Completion of a Phase by the Scheduled Phase Substantial Completion Date of that Phase, on the earlier of (A) the Phase Substantial Completion Date of that Phase and (B) the date of payment of the HMQ Default Termination Sum, Non-Default Termination Sum or Prohibited Acts Termination Sum (and as a part thereof) in accordance with Schedule 23 - Compensation on Termination, HMQ shall pay to Project Co an amount equal to the Senior Debt Service Amount and the Junior Debt Service Amount accrued and paid or which became payable in accordance with the Lending Agreements during the period of delay by Project Co or any Project Co Party to the Lenders up to and including such date, together with interest thereon at the rate or rates payable on the principal amount of debt funded under the Lending Agreements, which, but for the Delay Event, would have been paid by HMQ to Project Co.
(c)
If an event of Force Majeure occurs prior to the first Phase Substantial Completion Date to be achieved, Project Co shall not be entitled to receive any compensation other than as expressly provided in Sections 44.2(b)(ii) and 49.
(d)
During an event of Force Majeure which occurs on or after the first Phase Substantial Completion Date to be achieved, the provisions of Schedule 20 - Payment Mechanism will be suspended, and HMQ shall pay to Project Co, for each Payment Period, the Senior Debt Service Amount, the Junior Debt Service Amount and an amount which reflects the cost to Project Co of the OM&R Work performed, provided that, during such Payment Period, the amount paid to Project Co pursuant to this Section 44.2(d) shall never be more than the Maximum OM&R Payment.
(e)
Subject to Section 49, Project Co?s sole right to payment or otherwise in relation to the occurrence of an event of Force Majeure shall be as provided in this Section 44.
44.3
Mitigation and Process
(a)
Where a Party is (or claims to be) affected by an event of Force Majeure, such Party shall take commercially reasonable steps to mitigate the consequences of such event of Force Majeure upon the performance of its obligations under this Project Agreement, shall resume performance of its obligations affected by the event of Force Majeure as soon as practicable and shall use commercially reasonable efforts to remedy its failure to perform.
(b)
To the extent that the Party claiming relief does not comply with its obligations under this Section 44.3, such failure shall be taken into account in determining such Party?s entitlement to relief pursuant to this Section 44.
(c)
The Party claiming relief shall give written notice to the other Party within 5 Business Days of such Party becoming aware of the relevant event of Force Majeure. Such initial notice shall give sufficient details to identify the particular event claimed to be an event of Force Majeure.
(d)
A subsequent written notice shall be given by the Party claiming relief to the other Party within a further 5 Business Days of the initial notice, which notice shall contain such relevant information relating to the failure to perform (or delay in performing) as is available, including, without limitation, the effect of the event of Force Majeure on the ability of the Party to perform, the action being taken in accordance with Section 44.3(a), the date of the occurrence of the event of Force Majeure, and an estimate of the period of time required to overcome the event of Force Majeure and its effects.
(e)
The Party claiming relief shall notify the other as soon as the consequences of the event of Force Majeure have ceased and of when performance of its affected obligations can be resumed.
(f)
If, following the issue of any notice referred to in Section 44.3(d), the Party claiming relief receives or becomes aware of any further information relating to the event of Force Majeure and/or any failure to perform, such Party shall submit such further information to the other Party as soon as reasonably possible.
(a)
The compensation payable to Project Co pursuant to this Section 44 shall be reduced by any amount which Project Co or a Project Co Party recovers, or is entitled to recover, under any insurance policy, or would have recovered if it had complied with the requirements of this Project Agreement in respect of insurance or the terms of any policy of insurance required under this Project Agreement, which amount, for greater certainty, shall not include any excess or deductibles or any amount over the maximum amount insured under any such insurance policy.
(a)
The Parties shall use commercially reasonable efforts to agree to any modifications to this Project Agreement which may be equitable having regard to the nature of an event or events of Force Majeure. Schedule 27 - Dispute Resolution Procedure shall not apply to a failure of HMQ and Project Co to reach agreement pursuant to this Section 44.5.
45.1
Project Co Events of Default
(a)
Subject to Section 45.1(b), for the purposes of this Project Agreement, “Project Co Event of
Default” means any one or more of the following events or circumstances:
(i)
the occurrence of any of the following events other than as a consequence of a breach by HMQ of its payment obligations hereunder:
(A)
Project Co admits in writing its inability to pay its debts generally as they become due, or makes a general assignment for the benefit of creditors, or a receiver, manager, administrator, administrative receiver, receiver and manager, trustee, custodian or other similar official or any other like person is appointed by or on behalf of or at the instance of a creditor of Project Co with respect to Project Co or any of the property, assets or undertaking of Project Co, or any creditor of Project Co takes control, or takes steps to take control, of Project Co or any of Project Co?s assets, or any proceedings are instituted against Project Co that result in Project Co being declared or ordered bankrupt or in administration, liquidation, winding-up, reorganization, compromise, arrangement, adjustment, protection, relief or composition of it or with respect to it or its debts or obligations, or any such proceedings are instituted by Project Co seeking any such result, or any such proceedings are instituted by a person other than Project Co, HMQ, an HMQ Party or a person related to any of them seeking such result and such proceedings have or will have a material adverse effect on the Governmental Activities or the availability of the Parkway to Parkway Users (where such proceedings have not been withdrawn, stayed, discharged, or are otherwise of no further effect, within 90 days of being instituted), under any Applicable Law (including the Bankruptcy and Insolvency Act (Canada) and the Companies’ Creditors Arrangement Act (Canada)) relating to bankruptcy, insolvency or reorganization of or relief with respect to debtors or debtors? obligations or assets or other similar matters, or seeking the appointment of a receiver, manager, administrator, administrative receiver, receiver and manager, trustee, custodian or other similar official or like person for it or with respect to any of its assets, or any resolutions are passed or other corporate actions of Project Co are taken to authorize any of the actions set forth in this Section 45.1(a)(i)(A);
(B)
Project Co ceases performing a substantial portion of its business, or a substantial portion of such business is suspended or is not being performed, whether voluntarily or involuntarily, that has or will have a material adverse effect on Project Co?s ability to perform its obligations under this Project Agreement;
(C)
if any execution, sequestration, extent, garnishment or other process of or order by any court becomes enforceable against Project Co or if a distress or analogous process is levied against any property of Project Co that materially adversely affects Project Co?s ability to perform its obligations hereunder; or
(D)
Project Co shall suffer any event, or any event or set of circumstances occurs or comes about, analogous to the foregoing events or sets of circumstances set out this Section 45.1(a)(i) in any jurisdiction in which it is incorporated or resident and such event or set of circumstances would, if set out in Section 45.1(a)(i)(A), (B) or (C), constitute a Project Co Event of Default;
(ii)
Project Co failing to achieve Substantial Completion within 365 days after the Scheduled Substantial Completion Date (the “Longstop Date”);
(iii)
Project Co either:
(A)
failing to deliver a rectification plan under Section 22.3(a)(iii)(B);
Project Co will not achieve Substantial Completion by the Longstop Date; or
to the Independent Certifier, acting reasonably, as to the matters set out in Section 22.3(a)(iii)(B)(II);
(iv)
Project Co making any representation or warranty herein that is false or misleading when made, and that has or will have at any time a material adverse effect on the performance of Project Operations, the Governmental Activities or the availability of the Parkway to Parkway Users, or that may compromise (1) HMQ?s reputation or integrity or the nature of the Province of Ontario?s highway or parks system, or (2) the ability of HMQ to conduct its business, so as to negatively affect public perception of that system, and, in the case of a false or misleading representation or warranty that is capable of being remedied, such breach is not remedied within 10 Business Days of receipt of notice of the same from HMQ;
(v)
Project Co committing a breach of Sections 52 or 53 or a breach of its obligations under this Project Agreement (other than a breach that is referred to in Sections 45.1(a)(i) to (iv) inclusive or 45.1(a)(vi) to (xx) inclusive) which has or will have a material adverse effect on the Governmental Activities or the availability of the Parkway to Parkway Users, other than where such breach is a consequence of a breach by HMQ of its obligations under this Project Agreement, and upon becoming aware of such breach Project Co failing to remedy such breach in accordance with all of the following:
(A)
Project Co shall:
(I)
immediately commence and thereafter diligently continue to remedy the breach and to mitigate any adverse effects on HMQ and the Governmental Activities or the availability of the Parkway to Parkway Users;
put forward, within 5 Business Days of receipt of notice of such breach
from HMQ, a reasonable plan and schedule for diligently remedying the
breach and mitigating its effect, which plan and schedule shall specify in
reasonable detail the manner in which, and the latest date by which, such
breach is proposed to be remedied, which latest date shall in any event be
within 60 days of notice of such breach, or if such breach is not capable
of being rectified in such period then such longer period as is reasonable
in the circumstances; and
thereafter perform its obligations to achieve all elements of such plan and
schedule in accordance with its terms within the time for the
performance of its obligations thereunder; and
(I)
Project Co shall continue to diligently remedy the breach and to mitigate any adverse effects on HMQ and the Governmental Activities or the availability of the Parkway to Parkway Users;
Project Co shall, within 3 Business Days after notice from HMQ, submit
a plan and schedule, which HMQ shall have no obligation to accept, for
remedying the breach and mitigating its effect within such period, if any,
acceptable to HMQ, in its sole discretion, and thereafter perform its
obligations to achieve all elements of such plan and schedule in
accordance with its terms within the time for the performance of its
obligations thereunder; and
for greater certainty, Project Co failing to comply with any of the
not accepting the plan and schedule submitted by Project Co pursuant to
that Section, shall constitute a Project Co Event of Default;
from receipt by Project Co of a written request to return to the Site, other than as a consequence of a breach by HMQ of its obligations under this Project Agreement;
(vii)
Project Co ceasing to perform any OM&R Work in accordance with this Project Agreement which is necessary for the Governmental Activities or the availability of the Parkway to Parkway Users, other than as a consequence of a breach by HMQ of its obligations under this Project Agreement;
(viii)
Project Co failing to comply with Sections 59.1 or 59.3;
(ix)
the occurrence of any Change in Ownership or Change in Control which is prohibited by Section 59.4;
(x)
Project Co being awarded a total of [REDACTED] or more Failure Points in any rolling 3 Payment Periods;
(xi)
Project Co being awarded a total of [REDACTED] or more Failure Points in any rolling 6 Payment Periods;
(xii)
Project Co being awarded a total of [REDACTED] or more Failure Points in any rolling 12 Payment Periods;
(xiii)
Project Co failing to remove an Encumbrance that arose due to an act or omission of Project Co or any Project Co Party (other than a Title Encumbrance and any Encumbrance derived through HMQ) within 45 days of the earlier of:
(A)
the registration of such Encumbrance against title to the Lands or any part thereof; and
(B)
the date on which Project Co or any Project Co Party knew, or ought to have known, about the existence of the Encumbrance;
(xiv)
Project Co failing to pay any sum or sums due to HMQ under this Project Agreement, which sum or sums are not being disputed by Project Co in accordance with Schedule 27 Dispute Resolution Procedure and which sum or sums, either singly or in aggregate, exceed(s) $[REDACTED] (index linked), and such failure continues for 30 days from receipt by Project Co of a notice of non-payment from HMQ;
(xv)
Project Co failing to comply with Section 60;
(xvi)
Project Co failing to comply with Section 7.3 or Schedule 28 - Refinancing;
(xvii)
Project Co failing to obtain any bond, security or insurance required to be obtained by or on behalf of Project Co pursuant to this Project Agreement or any such bond, security or insurance being vitiated or otherwise ceasing to be in full force and effect or in material compliance with the requirements set out in this Project Agreement, other than as a consequence of a breach by HMQ of its obligations under this Project Agreement, and:
(A)
in respect of insurance, such breach by Project Co is not remedied within 10 Business Days of the occurrence of the breach; and
(B)
in respect of a bond or security, such breach by Project Co is not remedied within 5 Business Days of Project Co becoming aware of such breach;
(xviii)
Project Co failing to comply with any determination, order or award made against Project Co in accordance with Schedule 27 - Dispute Resolution Procedure;
(xix)
at any time after the first Phase Substantial Completion Date to be achieved, Project Co committing a breach of its obligations under this Project Agreement (other than as a consequence of a breach by HMQ of its obligations under this Project Agreement) which results in a criminal conviction or a conviction under the Occupational Health and Safety
Act (Ontario) against Project Co or any Project Co Party or HMQ (an “H&S
Conviction”) provided however that:
(A)
an H&S Conviction against Project Co, a Project Co Party or HMQ shall not constitute a Project Co Event of Default if, within 90 days from the date of the H&S Conviction (whether or not the H&S Conviction is subject to an appeal or any further judicial process), the involvement in the Project Operations of each relevant Project Co Party (which in the case of an individual director, officer or employee shall be deemed to include the Project Co Party of which that person is a director, officer or employee) is terminated in accordance with Section 59.3 or Project Co takes such other disciplinary action against each such Project Co Party as is acceptable to HMQ, in its sole discretion; and
(B)
in determining whether to exercise any right of termination for a Project Co Event of Default pursuant to this Section 45.1(a)(xix), HMQ shall:
(I)
act in a reasonable and proportionate manner having regard to such matters as the gravity of any offence and the identity of the person committing the act leading to the H&S Conviction; and
give all due consideration, where appropriate, to action other than
termination of this Project Agreement; or
(b)
HMQ shall not exercise any rights under this Section 45 (except its rights under Section 45.5(a)) as a result of a Project Co Event of Default referred to in Sections 45.1(a)(vii), 45.1(a)(x) to 45.1(a)(xii) until the day following the Substantial Completion Payment Commencement Date. For greater certainty, if HMQ is prevented from exercising any rights under this Section 45 by the terms of the immediately preceding sentence, then, notwithstanding the passage of time or any intervening event (including that HMQ may have exercised its rights under Section 45.5(a)), on and after the day following the Substantial Completion Payment Commencement Date, HMQ may exercise any such rights.
45.2
Notification of Occurrence
(a)
Project Co shall, promptly upon Project Co becoming aware of the occurrence, notify HMQ of the occurrence, and details, of any Project Co Event of Default and of any event or circumstance which is likely, with the passage of time, giving of notice, determination of any condition, or otherwise, to constitute or give rise to a Project Co Event of Default.
45.3
Right to Termination
(a)
On the occurrence of a Project Co Event of Default, or at any time after HMQ becomes aware of a Project Co Event of Default (and, if the occurrence of a Project Co Event of Default is disputed by Project Co in good faith, then following confirmation in accordance with Schedule 27 Dispute Resolution Procedure that a Project Co Event of Default has occurred), HMQ may, subject to Section 45.4, terminate this Project Agreement in its entirety by written notice having immediate effect, such notice to be given to Project Co, and to any person specified in the Lenders? Direct Agreement to receive such notice.
45.4
Remedy Provisions
45.1
(a)(i)(D) (where the Project Co Event of Default referred to in Section 45.1(a)(i)(D) is
45.1
(a)(iii), 45.1(a)(iv), 45.1(a)(vi), 45.1(a)(vii), 45.1(a)(viii), 45.1(a)(ix) (where the Project Co Event of Default referred to in Section 45.1(a)(ix) is capable of being remedied), 45.1(a)(xiv), 45.1(a)(xvi), 45.1(a)(xvii) (where the Project Co Event of Default referred to in Section 45.1(a)(xvii) is not in respect of insurance), 45.1(a)(xviii), 45.1(a)(xix) or 45.1(a)(xx), HMQ shall, prior to being entitled to terminate this Project Agreement, give notice of default to Project Co, and to any person specified in the Lenders? Direct Agreement to receive such notice, and Project Co shall:
(i)
within 5 Business Days of such notice of default, put forward a reasonable plan and schedule for diligently remedying the Project Co Event of Default, which schedule shall specify in reasonable detail the manner in, and the latest date by which, such Project Co Event of Default is proposed to be remedied, which latest date shall, in any event, be within 30 days of the notice of default, or if such breach is not capable of being remedied in such period then such longer period as is acceptable to HMQ, acting reasonably; and
(ii)
thereafter, perform its obligations to achieve all elements of such plan and schedule in accordance with its terms within the time for the performance of its obligations thereunder.
(b)
Where Project Co puts forward a plan and schedule in accordance with Section 45.4(a)(i) that has a date for the Project Co Event of Default to be remedied that is beyond 30 days from the notice of default, HMQ shall have 5 Business Days from receipt of the same within which to notify Project Co that HMQ does not accept such longer period in the plan and schedule and that the 30 day limit will apply, failing which HMQ shall be deemed to have accepted the longer period in the plan and schedule.
(c)
If a Project Co Event of Default, of which a notice of default was given under Section 45.4(a), occurs and:
(i)
Project Co fails to immediately commence and thereafter diligently continue to remedy the Project Co Event of Default and to mitigate any adverse effects on HMQ and the Governmental Activities or the availability of the Parkway to Parkway Users; or
(ii)
Project Co fails to put forward a plan and schedule pursuant to Section 45.4(a)(i); or
(iii)
such Project Co Event of Default is not remedied within 30 days of such notice of default or such longer period as is established pursuant to the plan and schedule established pursuant to Sections 45.4(a) and (b); or
(iv)
where Project Co puts forward a plan and schedule pursuant to Section 43.4(a)(i) and Project Co fails to perform its obligations thereunder necessary to achieve all elements of such plan and schedule in accordance with its terms within the time for the performance of its obligations,
then HMQ may terminate this Project Agreement in its entirety by written notice with immediate effect, such notice to be given to Project Co, and to any person specified in the Lenders? Direct Agreement to receive such notice.
(d)
Notwithstanding that HMQ may give the notice referred to in Section 45.4(a), and without prejudice to the other rights of HMQ in this Section 45.4, at any time during which a Project Co Event of Default is continuing, HMQ may, at Project Co?s risk and expense, take such steps as HMQ considers appropriate, either itself or by engaging others (including a third party) to take such steps, to perform or obtain the performance of Project Co?s obligations under this Project Agreement or to remedy such Project Co Event of Default.
(e)
Upon the occurrence of a Project Co Event of Default that Project Co has remedied pursuant to this Section 45.4, such occurrence of a Project Co Event of Default shall thereafter cease to be a Project Co Event of Default and HMQ shall not be entitled to terminate this Project Agreement for that occurrence of a Project Co Event of Default.
45.5
Replacement of Project Co or Non-Performing OM&R Provider
(a)
HMQ may, acting reasonably, require Project Co to cease directly performing the OM&R Work and instead appoint an OM&R Provider, or to terminate any OM&R Contract and ensure that a replacement OM&R Provider is appointed, as applicable, in each case in accordance with Section to provide the OM&R Work within 60 days:
(i)
if HMQ could have exercised a right to terminate this Project Agreement but for the provisions of Section 45.1(b), and the Project Co Event of Default was caused, or contributed to, by Project Co (in the case of Project Co directly performing the OM&R Work) or an OM&R Provider, as applicable, or otherwise relates to the OM&R Work; or
(ii)
as an alternative to termination of this Project Agreement pursuant to Sections 45.3 or
45.4
in any circumstance in which HMQ could exercise such right of termination, if the Project Co Event of Default was caused, or contributed to, by Project Co (in the case of Project Co directly performing the OM&R Work) or an OM&R Provider, as applicable, or otherwise relates to the OM&R Work; or
(iii)
if Project Co accrues, in any rolling 6 Payment Periods more than:
(A)
[REDACTED] Failure Points in respect of Availability Failures; or
(B)
[REDACTED] Failure Points in respect of Quality Failures,
provided that this Section 45.5 shall not give rise to partial termination of either the obligation to provide the Project Operations or this Project Agreement.
(b)
If HMQ exercises its rights under this Section 45.5, Project Co shall, within 5 Business Days, put forward a proposal for the interim management or performance of the OM&R Work until such time as an OM&R Provider or a replacement OM&R Provider, as applicable, can be engaged by Project Co. If Project Co fails to do so, or if its proposal is not reasonably likely to give adequate performance of the OM&R Work and the Parties cannot agree within a further 3 Business Days to a plan for the interim management or performance of the OM&R Work, then, without prejudice to the other rights of HMQ in this Section 45.5, HMQ itself may perform, or engage others (including a third party) to perform, the OM&R Work and Section 32.4 shall apply, mutatis mutandis, to the OM&R Work. Any Dispute in respect of the interim management or provision of the OM&R Work may be referred for resolution in accordance with Schedule 27 - Dispute Resolution Procedure.
(c)
If Project Co fails to:
(i)
engage an OM&R Provider; or
(ii)
terminate, or secure the termination of, any OM&R Contract and to secure a replacement OM&R Provider,
as applicable, and in each case in accordance with this Section 45.5, HMQ shall be entitled to exercise its termination rights in accordance with Sections 45.3 and 45.4, as applicable.
(d)
Where an OM&R Provider in engaged or a replacement OM&R Provider is appointed, as applicable, in accordance with this Section 45.5, [REDACTED]% of the Failure Points accrued by Project Co prior to such replacement shall be cancelled.
(a)
Project Co shall reimburse HMQ for all reasonable costs (including all applicable Taxes and all legal or professional services, legal costs being on a full indemnity basis) properly incurred by HMQ in exercising its rights under this Section 45, including any relevant increased administrative expenses. HMQ shall take commercially reasonable steps to mitigate such costs.
45.7
No other Rights to Terminate
(a)
HMQ shall have no right or entitlement to terminate this Project Agreement, or to accept any repudiation of this Project Agreement, and shall not purport to exercise any such right or entitlement except as set forth in Sections 45 and 47.
46.1
HMQ Events of Default
(a)
For the purposes of this Project Agreement, “HMQ Event of Default” means any one or more of the following events or circumstances:
(i)
HMQ failing to pay any sum or sums due to Project Co under this Project Agreement, which sum or sums are not being disputed by HMQ in accordance with Schedule 27 Dispute Resolution Procedure and which sum or sums, either singly or in aggregate, exceed(s) $[REDACTED] (index linked), and:
(A)
in respect of the Phase One Substantial Completion Payment, the Phase Two Substantial Completion Payment or the Substantial Completion Payment, such failure continues for 10 Business Days;
failure continues for 30 days;
(C)
in respect of any 3 Monthly OM&R Payments in any rolling 9 month period, such failure continues for 15 Business Days in respect of each such Monthly OM&R Payment; or
(D)
in respect of any other payment due and payable by HMQ to Project Co under this Project Agreement, such failure continues for 90 days,
in any such case, from receipt by HMQ of a notice of non-payment from or on behalf of Project Co;
(ii)
HMQ committing a material breach of its obligations under Section 14 (other than as a consequence of a breach by Project Co of its obligations under this Project Agreement), which breach materially adversely affects the ability of Project Co to perform its obligations under this Project Agreement for a continuous period of not less than 60 days; or
(iii)
an act of any Governmental Authority which renders it impossible for Project Co to perform all or substantially all of its obligations under this Project Agreement (other than as a consequence of a breach by Project Co of its obligations under this Project Agreement) for a continuous period of not less than 60 days (for greater certainty, the non-issuance of, or the imposition of any conditions or limitations in, any of the Project Co Permits, Licences and Approvals shall not constitute an “act of any Governmental Authority”).
46.2
Project Co’s Options
(a)
On the occurrence of an HMQ Event of Default and while the same is continuing, Project Co may give notice to HMQ of the occurrence of such HMQ Event of Default, which notice will specify the details thereof, and, at Project Co?s option and without prejudice to its other rights and remedies under this Project Agreement, may:
(i)
suspend performance of the Works and the OM&R Work until such time as HMQ has remedied such HMQ Event of Default; or
(ii)
if such HMQ Event of Default has not been remedied within 30 days of receipt by HMQ of notice of the occurrence of such HMQ Event of Default, terminate this Project Agreement in its entirety by notice in writing having immediate effect.
(a)
HMQ shall reimburse Project Co for all reasonable costs (including all applicable Taxes and all legal or professional services, legal costs being on a full indemnity basis) properly incurred by Project Co in exercising its rights under this Section 46, including any relevant increased administrative expenses. Project Co shall take commercially reasonable steps to mitigate such costs.
46.4
No Other Rights to Terminate
(a)
Project Co shall have no right or entitlement to terminate this Project Agreement, nor to accept any repudiation of this Project Agreement, and shall not exercise, nor purport to exercise, any such right or entitlement except as expressly set forth in this Project Agreement.
47.
RELIEF EVENT AND NON-DEFAULT TERMINATION
47.1
Termination for Relief Event
(a)
Subject to Section 47.1(b), if a Relief Event occurs and the effects of the Relief Event continue for 180 days from the date on which the Party affected gives notice to the other Party pursuant to Section 43.3(c), either Party may, at any time thereafter, terminate this Project Agreement by written notice to the other Party having immediate effect, provided that the effects of the Relief Event continue during such period to prevent either Party from performing a material part of its obligations under this Project Agreement.
(b)
Neither Party shall be entitled to exercise its right to terminate this Project Agreement in accordance with Section 47.1(a) if Project Co or a Project Co Party recovers, or is entitled to recover, under any insurance policy, or would have recovered if it had complied with the requirements of this Project Agreement in respect of insurance or the terms of any policy of insurance required under this Project Agreement, an amount which, together with all Monthly OM&R Payments for the relevant Payment Period or Payment Periods, is equal to or greater than the Senior Debt Service Amount and the Junior Debt Service Amount for the relevant Payment Period or Payment Periods.
47.2
Termination for Force Majeure
(a)
If an event of Force Majeure occurs and the Parties, having used commercially reasonable efforts, have failed to reach agreement on any modification to this Project Agreement pursuant to Section 44.5 within 180 days from the date on which the Party affected gives notice to the other Party as set out therein, either Party may, at any time thereafter, terminate this Project Agreement by written notice to the other Party having immediate effect, provided that the effects of the event of Force Majeure continue during such period to prevent either Party from performing a material part of its obligations under this Project Agreement.
47.3
Termination for Convenience
(a)
HMQ shall, in its sole discretion and for any reason whatsoever, be entitled to terminate this Project Agreement at any time on 180 days? written notice to Project Co.
(b)
In the event of notice being given by HMQ in accordance with this Section 47.3, HMQ shall, at any time before the expiration of such notice, be entitled to direct Project Co to refrain from commencing, or allowing any third party to commence, the Works, or any part or parts of the Works, or the OM&R Work, or any element of the OM&R Work, where such Works or OM&R Work have not yet been commenced.
47.4
Automatic Expiry on Expiry Date
(a)
This Project Agreement shall terminate automatically on the Expiry Date.
(b)
Project Co shall not be entitled to any compensation due to termination of this Project Agreement on expiry of the Project Term on the Expiry Date.
48.
EFFECT OF TERMINATION
(a)
Notwithstanding any provision of this Project Agreement, upon the service of a notice of termination or termination on the Expiry Date pursuant to Section 47.4, this Section 48 shall apply in respect of such termination.
48.2
Continued Effect - No Waiver
(a)
Notwithstanding any breach of this Project Agreement by a Party, the other Party may elect to continue to treat this Project Agreement as being in full force and effect and to enforce its rights under this Project Agreement without prejudice to any other rights which such other Party may have in relation to such breach. The failure of either Party to exercise any right under this Project Agreement, including any right to terminate this Project Agreement and any right to claim damages, shall not be deemed to be a waiver of such right for any continuing or subsequent breach.
48.3
Continuing Performance
(a)
Subject to any exercise by HMQ of its rights to perform, or to seek, pursuant to this Project Agreement, a third party to perform, the obligations of Project Co, the Parties shall continue to perform their obligations under this Project Agreement (including, if applicable, pursuant to Schedule 23 – Compensation on Termination) notwithstanding the giving of any notice of default or notice of termination, until the termination of this Project Agreement becomes effective in accordance with this Section 48.
48.4
Effect of Notice of Termination
(a)
On the service of a notice of termination, or termination on the Expiry Date pursuant to Section
(i)
if termination is prior to the Substantial Completion Date, in so far as any transfer shall be necessary to fully and effectively transfer such property to HMQ as shall not already have been transferred to HMQ pursuant to Section 55.1, Project Co shall transfer to, and there shall vest in, HMQ, free from all Encumbrances (other than the Title Encumbrances and any Encumbrances caused or consented to by HMQ), such part of the Works and Parkway as shall have been constructed and such items of the Plant and equipment as shall have been procured by Project Co, and, if HMQ so elects:
(A)
all plant, equipment and materials (other than those referred to in Section
(a)(i)(B)) on or near to the Site shall remain available to HMQ for the purposes of completing the Works; and
(B)
all construction plant and equipment shall remain available to HMQ for the purposes of completing the Works, subject to payment by HMQ of the Construction Contractor?s reasonable charges;
(ii)
if termination is prior to the Substantial Completion Date, Project Co shall deliver to HMQ (to the extent such items have not already been delivered to HMQ) one complete set of all Project Data and Intellectual Property relating to the design, construction and completion of the Works and the Parkway;
(iii)
in so far as title shall not have already passed to HMQ pursuant to Section 55.1 or Section
48.4
(a)(i), Project Co shall hand over to, and there shall vest in, HMQ, free from all Encumbrances (other than the Title Encumbrances and any Encumbrances caused or consented to by HMQ), the Parkway together with all other assets and rights capable of being transferred that are necessary for the performance of the Project and the Project Operations and all facilities and equipment including, not withstanding that termination may occur prior to the Expiry Date, the verification and transfer of inventory as set forth in Appendix C (Expiry Date), Section 10.3 of the OM&R Specifications, and to the extent that any such assets or rights are not capable of being transferred by Project Co to HMQ, Project Co shall enter into agreements or make other arrangements in order to permit the use of the assets or rights by HMQ in order to enable it, or its designated agents or subcontractors, to continue to perform the activities which would have otherwise been performed by Project Co if this Project Agreement had not been terminated;
(iv)
if HMQ so elects, Project Co shall ensure that any of the Subcontracts between Project Co and a Subcontractor (including the Construction Contract and, if applicable, any OM&R Contract), and any other instrument entered into between any such Subcontractor and Project Co for securing the performance by such Subcontractor of its obligations in respect of the Project Operations or to protect the interests of Project Co, shall be novated or assigned to HMQ or its nominee, provided that where termination occurs other than as a result of a Project Co Event of Default, the consent of the relevant Subcontractor shall be required, and further provided that any such novation or assignment of a Subcontract with the Construction Contractor or, if applicable, an OM&R Provider, shall be made to HMQ pursuant to, and subject to, the terms of the applicable Direct Agreement;
(v)
Project Co shall, or shall ensure that any Project Co Party shall, offer to sell (and if HMQ so elects, execute such sale) to HMQ at a fair value (determined as between a willing vendor and willing purchaser, with any Disputes as to such fair value being resolved in accordance with Schedule 27 - Dispute Resolution Procedure), free from all Encumbrances (other than the Title Encumbrances and any Encumbrances caused or consented to by HMQ), all or any part of the stocks of material and other assets, road vehicles, construction equipment, spare parts and other moveable property owned by Project Co or any Project Co Parties and dedicated to or predominantly used in respect of the Parkway, and reasonably required by HMQ in connection with the operation of the Parkway or the performance of the OM&R Work;
(vi)
Project Co shall deliver to HMQ (to the extent such items have not already been delivered to HMQ) one complete set of:
(A)
the most recent As Built Drawings in the format that HMQ, acting reasonably, considers most appropriate at the time showing all alterations made to the each Phase since the relevant Phase Substantial Completion Date; and
(B)
the most recent maintenance, operation and training manuals for the Parkway;
(vii)
Project Co shall use commercially reasonable efforts to assign, or otherwise transfer, to HMQ, free from all Encumbrances (other than the Title Encumbrances and any Encumbrances caused or consented to by HMQ), the benefit of all manufacturers? warranties, including all documentation in respect thereof, in respect of mechanical and electrical plant and equipment used or made available by Project Co under this Project Agreement and included in the Parkway;
(viii)
Project Co shall deliver to HMQ all information, reports, documents, records and the like referred to in Section 37, including as referred to in Schedule 26 - Record Provisions, except where such are required by Applicable Law to be retained by Project Co or the Project Co Parties (in which case complete copies shall be delivered to HMQ); and
(ix)
in the case of the termination of this Project Agreement on the Expiry Date in accordance with Section 47.4, the Parkway and elements of the Parkway shall be in the condition required in accordance with Section 50 and Schedule 24 - Expiry Transition Procedure.
48.5
Ownership of Information
(a)
Subject to Section 51, all information obtained by Project Co, including the As Built Drawings and other technical drawings and data, supplier agreements and contracts, utilities consumption information, environmental and technical reports, lease, licence and subletting data and contracts, asset condition data, standard operating procedures, processes and manuals and all other information directly related to the Project Operations accumulated over the course of the Project Term shall be the property of HMQ and upon termination of this Project Agreement shall be provided or returned to HMQ, as applicable, in electronic format acceptable to HMQ, acting reasonably, where it exists in electronic format, and in its original format, when not in electronic format.
48.6
Provision in Subcontracts
(a)
Project Co shall make provision in all Subcontracts to which it is a party (including requiring the relevant Project Co Parties to make such provision and to require other Project Co Parties to make such provision) to ensure that HMQ shall be in a position to exercise its rights, and Project Co shall be in a position to perform its obligations, under this Section 48.
48.7
Transitional Arrangements
(a)
On the termination of this Project Agreement for any reason, for a reasonable period both before and after any such termination, Project Co shall, subject to the continued performance of OM&R Work pursuant to Sections 3.2 and 3.3 of Schedule 23 - Compensation on Termination if applicable:
(i)
cooperate fully with HMQ and any successors providing services in the nature of any of the OM&R Work or any part of the OM&R Work in order to achieve a smooth transfer of the manner in which the OM&R Work is performed and to avoid or mitigate, in so far as reasonably practicable, any inconvenience or any risk to the health and safety of any Parkway Users;
(ii)
as soon as practicable remove from the Site all property belonging to Project Co or any Project Co Party that is not acquired by HMQ pursuant to Section 48.4 or otherwise, and, if Project Co has not done so within 60 days after any notice from HMQ requiring it to do so, HMQ may, without being responsible for any loss, damage, costs or expenses, remove and sell any such property and shall hold any proceeds, less all costs incurred to the credit of Project Co;
(iii)
forthwith deliver to the HMQ Representative:
(A)
all keys to, and any pass cards and other devices used to gain access to any part of the Parkway; and
(B)
to the extent transferable and without prejudice to HMQ?s rights pursuant to Section 51, any copyright licences for any computer programs, or licences to use the same, used in connection with the operation of the Parkway; and
(iv)
as soon as practicable vacate the Site and, without limiting Project Co?s obligations under Schedule 24 - Expiry Transition Procedure, shall leave the Site and the Parkway in a safe, clean and orderly condition.
(b)
If HMQ wishes to conduct a competition prior to the Expiry Date with a view to entering into an agreement for the provision of services, which may or may not be the same as, or similar to, the OM&R Work or any part of the OM&R Work, following the expiry of this Project Agreement, Project Co shall, subject to payment of Project Co?s reasonable costs, cooperate with HMQ fully in such competition process, including by:
(i)
providing any information which HMQ may reasonably require to conduct such competition, including all information contained in any asset management system maintained by Project Co not otherwise transferred to HMQ, other than Sensitive Information; and
(ii)
assisting HMQ by allowing any or all participants in such competition process unrestricted access to the Site and the Parkway.
48.8
Termination upon Aforesaid Transfer
(a)
On completion of Project Co?s obligations pursuant to this Section 48, this Project Agreement shall terminate and, except as provided in Section 48.9, all rights and obligations of HMQ and Project Co under this Project Agreement shall cease and be of no further force and effect.
(a)
Except as otherwise provided in this Project Agreement, termination of this Project Agreement shall be without prejudice to, and shall not affect:
(i)
all representations, warranties and indemnities under this Project Agreement; and
(ii)
Sections 1.2, 1.3, 5, 6, 7, 15.2, 16.1, 16.2(a), 16.3(a), 16.4(a), 25.6, 26.8, 31.4, 32, 34.6,
34.8
, 34.13, 34.14, 34.15, 35, 36, 37, 45.6, 46.3, 47.4, 48, 49, 50, 51, 52, 53, 55, 56, 57, 58, 60.3, 61.1, 64.4, 64.8, 64.9, 64.10, 64.11 and 64.12 of this Project Agreement, Schedule 8 – Energy Matters, Schedule 23 - Compensation on Termination, Sections 2, 4 and 5 of Schedule 24 - Expiry Transition Procedure, Sections 1.2 to 1.8 of Schedule 26 Record Provisions, Schedule 27 - Dispute Resolution Procedure, and any other provisions of this Project Agreement which are expressed to survive termination which are required to give effect to such provisions which survive termination or to such termination or the consequences of such termination,
all of which shall survive the termination of this Project Agreement, including for termination on the Expiry Date pursuant to Section 47.4.
49.
COMPENSATION ON TERMINATION
49.1
Compensation on Termination
(a)
If this Project Agreement is terminated in accordance with the terms hereof, then Schedule 23 Compensation on Termination shall apply and HMQ shall pay Project Co any applicable compensation on termination.
49.2
Full and Final Settlement
(a)
Except as otherwise provided in Section 49.2(b), any compensation paid pursuant to this Section 49, including pursuant to Schedule 23 - Compensation on Termination in the total amount owing thereunder, shall be in full and final settlement of any claims, demands and proceedings of Project Co and HMQ, and each shall be released from all liability to the other in relation to any breaches or other events leading to such termination of this Project Agreement, and the circumstances leading to such breach or termination, and Project Co and HMQ shall be precluded from exercising all other rights and remedies in respect of any such breach or termination whether in contract, tort, restitution, statute, at common law or otherwise.
(b)
Section 49.2(a) shall be without prejudice to:
(i)
any liability of either Party to the other, including under the indemnities contained in this Project Agreement, that arose prior to the Termination Date (but not from the termination itself or the events leading to such termination) to the extent such liability has not already been set off pursuant to Section 34.13 or taken into account pursuant to Schedule 23 Compensation on Termination in determining or agreeing upon the HMQ Default Termination Sum, Adjusted Highest Qualifying Tender Price, Adjusted Estimated Fair Value, Non-Default Termination Sum, Prohibited Acts Termination Sum or any other termination sum, as the case may be;
(ii)
any liabilities arising under or in respect of any breach by either Party of their obligations under Section 48.9 of this Project Agreement, or the Sections referred to therein, which did not lead to such termination and which arises or continues after the Termination Date; and
(iii)
any amount owing to HMQ in relation to:
(A)
taxes or tax withholdings, including workers? compensation levies;
(B)
fines, penalties or restitution orders by a court under any Federal or Provincial statute;
(C)
any order made by a court under the Civil Remedies Act, S.O. 2001, c.28 and
(D)
any fraud or other criminal offence committed against HMQ.
50.
EXPIRY TRANSITION PROCEDURE
(a)
Project Co and HMQ shall each comply with the requirements of Schedule 24 - Expiry Transition Procedure.
51.
INTELLECTUAL PROPERTY
51.1
Representation and Warranty
(a)
Project Co represents, warrants and covenants to HMQ and agrees that:
(i)
Project Co is and shall be the sole and exclusive owner of the Project Data and the Intellectual Property Rights or has and shall have the right to provide the licences granted to HMQ herein;
(ii)
Project Co has and shall have the right to execute, and shall ensure that the Project Co Parties have the right to execute, all assignments of Intellectual Property, Project Data and Jointly Developed Materials contemplated under Section 51;and
(iii)
the Project Data and the Intellectual Property Rights do not and shall not infringe, and are not and shall not be misappropriation of, any third party Intellectual Property Rights, and, as of Commercial Close, Project Co has not received any alleged infringement or misappropriation notices from third parties regarding the Project Data or the Intellectual Property Rights.
51.2
Delivery of Project Data and Intellectual Property Rights
(a)
Project Co shall make all Project Data and Intellectual Property Rights available to, and upon request shall deliver to, HMQ free of charge all Project Data, and shall obtain all necessary licences, permissions and consents to ensure that Project Co shall make the Project Data and Intellectual Property Rights available to and deliver the Project Data to HMQ on the aforesaid terms of this Section 51.2(a), for any and all of the Approved Purposes.
51.3
Licence of Project Data and Intellectual Property Rights
(a)
Project Co:
(i)
hereby grants to HMQ an irrevocable, worldwide, royalty free, perpetual, non-exclusive and transferable licence, including the right to grant sub-licences, to use the Project Data and the Intellectual Property Rights for any and all of the Approved Purposes;
(ii)
shall, at Project Co?s cost, where any Intellectual Property Rights are or become vested in the Construction Contractor or, if applicable, any OM&R Provider, obtain the grant of an equivalent licence to that referred to in Section 51.3(a)(i), provided that such licence may, in respect of the Construction Contractor?s and any applicable OM&R Provider?s Intellectual Property Rights that are proprietary and subject to trademark or copyright, be limited to the term of the relevant Subcontract; and
(iii)
shall, at Project Co?s cost, where any Intellectual Property Rights are or become vested in a third party (other than the Construction Contractor or, if applicable, any OM&R Provider), obtain the grant of an equivalent licence to that referred to in Section 51.3(a)(i), provided that Project Co is able to obtain such licence from such third party on reasonable commercial terms and conditions.
(b)
In this Section 51.3 and Section 51.5(a), “use” includes any and all acts of copying, modifying, adapting, translating, incorporating with other materials, creating derivative works and otherwise using the Project Data and Intellectual Property Rights.
51.4
Jointly Developed Materials
(a)
To the extent any data, documents, drawings, reports, plans, software, formulae, calculations or designs or any other materials are developed jointly by Project Co and HMQ pursuant to this Project Agreement or in relation to the Parkway, the Site or Project Operations (the “Jointly Developed Materials”), then the Parties hereby acknowledge and agree that HMQ shall be the sole and exclusive owner of all right, title and interest in and to the Jointly Developed Materials, any Intellectual Property associated therewith and any and all improvements, modifications and enhancements thereto. Project Co shall, at the request of HMQ, execute such further agreements and cause the Project Co Parties to execute any and all assignments, waivers of moral rights and other documents as may be reasonably required to fulfill the intent of this provision.
(b)
HMQ hereby grants Project Co a royalty free, non-exclusive and non-transferable licence, with a right to grant sub-licences to each Subcontractor, to use the Jointly Developed Materials during the Project Term for the sole purposes of Project Co or any Subcontractor performing its obligations under this Project Agreement or its Subcontract, as applicable.
(c)
Upon termination of this Project Agreement, all rights and licences whatsoever granted to Project Co in the Jointly Developed Materials shall automatically terminate, and Project Co shall return any and all Jointly Developed Materials in the custody or possession of Project Co to HMQ.
(a)
To the extent that any of the data, materials and documents referred to in this Section 51 are generated by, or maintained on, a computer or similar system, Project Co shall procure for the benefit of HMQ, either at no charge or at the lowest reasonable fee, the grant of a licence or sublicence for any relevant software to enable HMQ or its nominee to access and otherwise use (as such term is defined in Section 51.3(b), subject to the payment by HMQ of any relevant fee) such data, materials and documents for the Approved Purposes.
(b)
Without limiting the obligations of Project Co under Section 51.5(a), Project Co shall ensure the back up and storage in safe custody of the data, materials and documents referred to in this Section 51 in accordance with Good Industry Practice. Project Co shall submit to the HMQ Representative Project Co?s proposals for the back up and storage in safe custody of such data, materials and documents and HMQ shall be entitled to object if the same is not in accordance with Good Industry Practice. Project Co shall comply, and shall cause all Project Co Parties to comply, with all procedures to which the HMQ Representative has not objected. Project Co may vary its procedures for such back up and storage subject to submitting its proposals for change to the HMQ Representative, who shall be entitled to object on the basis set out above. Any Disputes in connection with the provisions of this Section 51.5(b) may be referred for resolution in accordance with Schedule 27 - Dispute Resolution Procedure with reference to Good Industry Practice.
(a)
Where a demand, claim, action or proceeding is made or brought against HMQ or any Province Person which arises out of the alleged infringement or misappropriation of any rights in or to any Project Data or Intellectual Property Rights or the use thereof by HMQ or any Province Person or because the use of any materials, Plant, machinery or equipment in connection with the Project Operations infringes any rights in or to any Intellectual Property of a third party then, unless such infringement has arisen out of the use of any Project Data or Intellectual Property Rights by HMQ or any Province Person otherwise than in accordance with the terms of this Project Agreement, Project Co shall indemnify, defend and hold harmless HMQ and such Province Person from and against all such demands, claims, actions and proceedings and Section 56.3 shall apply.
(a)
Project Co shall not:
(i)
use any HMQ Trade-Marks without obtaining a trade-mark licence on terms and conditions mutually satisfactory to HMQ and Project Co, each acting reasonably; or
(ii)
use the names or any identifying logos or otherwise of HMQ or the HMQ Representative in any advertising or permit them so to be used except with the prior written consent of HMQ.
51.8
Confidential Information
(a)
It is expressly acknowledged and agreed that nothing in this Section 51 shall be deemed to create or convey to a Party any right, title, or interest in and/or to the Confidential Information of the other Party.
51.9
Government Use of Documents
(a)
Project Co hereby disclaims any right, title or interest of any nature whatsoever it may have in or to this Project Agreement that might prohibit or otherwise interfere with HMQ?s ability to use this Project Agreement in any manner desired by HMQ.
(b)
Project Co hereby consents to the use by HMQ of this Project Agreement, and any portion thereof, subject to compliance with FIPPA and to the removal by HMQ (in consultation with Project Co) of any information supplied in confidence to HMQ by Project Co in circumstances where disclosure may be refused under section 17(1) of FIPPA.
(a)
The Parties hereby agree that either Party may use the Project Know-How for any purpose, provided, however, that neither Project Co nor any Project Co Party shall use the Project KnowHow to the extent that such Project Know-How incorporates, references or is otherwise based on the Project Data, the Intellectual Property Rights, the Jointly Developed Material, the Intellectual Property of HMQ or the Confidential Information of HMQ, including, without limitation, the Output Specifications unless such use is otherwise permitted pursuant to this Project Agreement in order to enable Project Co and the Project Co Parties to meet Project Co?s obligations under this Project Agreement.
(b)
Project Co hereby covenants and agrees that it will not make any commercial use, including, without limitation, use in any other request for proposal or similar procurement process, of the Project Data, the Intellectual Property Rights, the Jointly Developed Material, the Intellectual Property of HMQ or the Confidential Information of HMQ, including, without limitation, the Output Specifications, or any other drawings, reports, documents, plans, formulae, calculations, manuals, or other data that was created specifically for the Project or was based upon the Project Data, the Intellectual Property Rights, the Jointly Developed Material, the Intellectual Property of HMQ or the Confidential Information of HMQ, including, without limitation, the Output Specifications.
52.
CONFIDENTIALITY/COMMUNICATIONS
(a)
Subject to Sections 52.1(b), 52.1(c) and 52.2, but notwithstanding anything else in this Project Agreement to the contrary, Project Co acknowledges and agrees that, in accordance with the transparency and accountability principles of the IPFP Framework, HMQ has a right to disclose or publish (including on websites) this Project Agreement, any or all terms hereof, including any or all contractual submissions and other records kept in accordance with this Project Agreement, any information related to the performance of Project Co (or any Project Co Party) or any information derived from this Project Agreement or the information related to the performance of Project Co (or any Project Co Party) as HMQ, in its sole discretion, may consider appropriate. In exercising its discretion, HMQ will be guided by the principles set out in Sections 52.1(b) and 52.1(c).
(b)
HMQ will not disclose portions of this Project Agreement, any terms hereof, including any contractual submissions or other records kept in accordance with this Project Agreement, any information related to the performance of Project Co (or any Project Co Party) or any information derived from this Project Agreement or the information related to the performance of Project Co (or any Project Co Party) which would be exempt from disclosure under section 17(1) of FIPPA.
(c)
Notwithstanding Section 52.1(b), but subject to Section 52.2, where a compelling public interest in the disclosure of the information clearly outweighs the public interest in limiting the disclosure of the information supplied by Project Co (or any Project Co Party), HMQ may disclose such information.
(a)
Prior to disclosing or publishing this Project Agreement, any terms hereof, including any contractual submissions or other records kept in accordance with this Project Agreement, any information related to the performance of Project Co (or any Project Co Party) or any information derived from this Project Agreement or the information related to the performance of Project Co (or any Project Co Party), HMQ shall provide to Project Co a redacted version of this Project Agreement or other documents or information to be disclosed or published, on the basis that the information so redacted constitutes information which should not be disclosed pursuant to Section 52.1(b). The Parties acknowledge and agree that the Annual OM&R Payment, but not the breakdown thereof, may be disclosed.
(b)
If Project Co, acting in good faith, contends that any of the information not redacted constitutes information that falls within the scope of Section 52.1(b) and, accordingly, would be exempt from disclosure under FIPPA, the dispute may be referred for resolution in accordance with Schedule 27 - Dispute Resolution Procedure, and HMQ shall not disclose any information in dispute until a determination is made. Any such determination shall be made with reference to the text and principles of FIPPA.
52.3
Disclosure to Government
(a)
Project Co acknowledges and agrees that subject to compliance with FIPPA, HMQ will be free to use, disclose or publish (including on websites) any information, including Confidential Information, on such terms and in such manner as HMQ sees fit.
(b)
For greater certainty, Project Co acknowledges and agrees that, subject only to the removal of any information which Project Co is (or would be) entitled to refuse to disclose pursuant to section 17(1) of FIPPA, this Project Agreement, any contractual submissions or other records kept in accordance with this Project Agreement, any information related to the performance of Project Co (or any Project Co Party) or any information derived from this Project Agreement or the information related to the performance of Project Co (or any Project Co Party) are public documents and information and, as such, may be disclosed by HMQ.
52.4
Freedom of Information and Protection of Privacy Act
(a)
The Parties acknowledge and agree that FIPPA applies to HMQ, and that HMQ is required to fully comply with FIPPA.
(b)
HMQ shall, within the time periods provided in FIPPA for a party to exercise rights to prevent disclosure of information, advise Project Co of any request for Confidential Information that relates to Project Co (or any Project Co Party) or of HMQ?s intention to voluntarily release any information or documents which contain Confidential Information that relates to Project Co (or any Project Co Party).
52.5
Use and Disclosure of Confidential Information
(a)
Except as authorized hereunder, each Party shall hold in confidence, not disclose and not permit any person any manner of access to, whether directly or indirectly, any Confidential Information of the other Party, provided that this Section 52 shall not restrict either Party from disclosing such Confidential Information to its professional advisors, to the extent necessary, to enable that Party to perform, to cause to be performed, or to enforce, its rights or obligations under this Project Agreement.
(b)
Project Co may:
(i)
disclose in confidence to the Lenders and prospective Lenders and their professional advisors such Confidential Information as is reasonably required by the Lenders in connection with the raising or syndication of the financing or any sub-participation in the financing of the Project Operations or which Project Co is obliged to supply by the terms of the Lending Agreements; and
(ii)
disclose in confidence to any Project Co Party and their professional advisors, such Confidential Information as is necessary for the performance by that Project Co Party of that Project Co Party?s obligations under this Project Agreement.
(c)
Project Co acknowledges that HMQ may use the Confidential Information of Project Co for purposes not specific to the Project, but for other general governmental purposes, such as development of HMQ?s alternate procurement and financing policies and framework. HMQ will advise Project Co prior to using any Confidential Information of Project Co for non-Project purposes.
(d)
Subject to the foregoing, neither Party shall use, or directly or indirectly cause, authorize or permit any other person to use, any Confidential Information of the other Party except for the purposes of this Project Agreement, as permitted by this Project Agreement or as authorized by the disclosing Party in writing.
(e)
Each Party shall protect all Confidential Information of the disclosing Party with the same degree of care as it uses to prevent the unauthorized use, disclosure, publication, or dissemination of its own confidential information of a similar nature or character, but in no event with less than a reasonable degree of care.
(a)
Information of a Party (the “Proprietor”), other than Government Sensitive Information and other than Personal Information, will not be considered to be Confidential Information in the following circumstances:
(i)
the Proprietor advises the other Party to whom the information has been disclosed (the “Confidant”) that the information is not required to be treated as Confidential Information;
(ii)
the information is as of Commercial Close, or becomes at any time thereafter, generally available to or accessible by the public through no fault or wrongdoing of the Confidant;
(iii)
the information is a matter of public record or in the public domain;
(iv)
the information was in the possession of the Confidant prior to its disclosure and the Confidant came into possession of such information without being in breach of this Project Agreement;
(v)
the information is received by the Confidant on a non-confidential basis from a source other than the Proprietor, provided that to the best of the Confidant?s knowledge such source is not bound by a confidentiality agreement with the Proprietor or otherwise prohibited from disclosing the information to the Confidant by a contractual, legal or fiduciary obligation;
(vi)
the information was independently developed by the Confidant without access to the Confidential Information, as evidenced by written records;
(vii)
the information is required to be disclosed pursuant to Applicable Law, provided that the Confidant provides the Proprietor with reasonable notification and an opportunity to contest such requirement prior to disclosure;
(viii)
the information is disclosed to HMQ upon a termination of this Project Agreement, pursuant to Section 48 or is otherwise required by HMQ for the purposes of performing (or having performed) the Project Operations, including the design or construction of the Parkway, the operation, maintenance or improvement of the Parkway, or any other operations or services the same as, or similar to, the Project Operations; or
(ix)
the information would not be exempt from disclosure under FIPPA.
52.7
Survival of Confidentiality
(a)
The obligations in Section 52.1 to Section 52.6 will cease on the date that is 3 years after the Termination Date and accordingly shall survive the termination of the Project Agreement.
52.8
Communications Protocol
(a)
The Parties shall comply with the provisions of Schedule 18 – Communications Protocol.
(a)
Project Co acknowledges the importance of maintaining the confidentiality and privacy of Personal Information.
(b)
Project Co shall, and shall require each Project Co Party to, only collect, hold, process, use, store and disclose Personal Information with the prior consent of HMQ and: (i) shall not collect, hold, process, use or store Personal Information except to the extent necessary to perform Project Co?s obligations under this Project Agreement; and (ii) shall not disclose Personal Information or otherwise permit access to or make Personal Information available to any person except as expressly permitted or instructed by HMQ.
(c)
Project Co shall, and shall require each Project Co Party to, at all times treat Personal Information as strictly confidential and shall comply with all applicable requirements of the Output Specifications and the requirements of Applicable Law, including FIPPA, the Personal Information Protection and Electronic Documents Act (Canada) and any other Canadian federal or provincial legislation now in force or that may in the future come into force governing the collection, use, disclosure and protection of personal information applicable to Project Co, each Project Co Party or to the Project Operations.
(d)
Project Co shall take all necessary and appropriate action, and shall require each Project Co Party to take all necessary and appropriate action, against any person who fails to comply with this Section 53.
(e)
Project Co shall allow HMQ on reasonable notice to inspect any Personal Information in the custody or possession of Project Co or a Project Co Party and to audit Project Co and each Project Co Party?s compliance with this Section 53 including, without limitation, the measures used by Project Co and each Project Co Party to protect Personal Information, and otherwise promptly and properly respond to all reasonable inquiries of HMQ with respect to Project Co or each Project Co Party?s handling of Personal Information.
(f)
Project Co shall not subcontract or delegate to any third party any of the Project Operations that involve or may involve the collection, use, storage, processing or any other handling of Personal Information without the express consent of HMQ and without obtaining written contractual commitments of such third party substantially the same as those of this Section 53.
53.2
Protection of Personal Information
(a)
Project Co shall implement and use, and shall require each Project Co Party to implement and use, appropriate technical, organizational and physical security measures to protect Personal Information against loss, theft and unauthorized access, disclosure, copying, use, modification or disposal, and shall otherwise ensure that Project Co, the Project Co Parties, and its and their staff shall protect, secure and keep confidential any Personal Information.
(b)
Project Co shall and shall cause each Project Co Party to restrict access to Personal Information to only those authorized employees that require access to such Personal Information to fulfil their job requirements in connection with the Project Operations and that are subject to obligations of confidentiality and Personal Information protection no less stringent than those of this Section 53.
(c)
Upon termination of this Project Agreement or upon request of HMQ, whichever comes first, Project Co shall immediately cease all use of and return to HMQ or, at the direction of HMQ, dispose of, destroy or render permanently anonymous all Personal Information, in each case using appropriate technical, organizational and physical security measures to protect Personal Information against loss, theft and unauthorized access, disclosure, copying, use or modification.
(d)
To the extent that any of the Project Operations involve or may involve destruction or disposal of Personal Information, including any disposal or destruction pursuant to (c) above, such activities shall include, at a minimum, irreversible destruction, shredding or pulverizing of all documents, records or media containing Personal Information to a size or state that ensures that the document, record or other medium is permanently destroyed and that no information contained therein can be read, reconstructed or deciphered.
(e)
Project Co shall immediately inform HMQ of any actual or suspected loss, theft or accidental or unauthorized access, disclosure, copying, use, modification or destruction of Personal Information by Project Co or any Project Co Party or any other breach of this Section 53.
(f)
HMQ may from time to time require that Project Co and any Project Co Party or member of its or their staff execute and deliver within two Business Days of such request an agreement satisfactory to HMQ, acting reasonably, requiring such person to keep Personal Information confidential.
53.3
Personal Information
(a)
Project Co shall provide, and shall cause each Project Co Party to provide, in a timely manner, all necessary and reasonable information and co-operation to HMQ and to any regulatory or other governmental bodies or authorities with jurisdiction or oversight over Applicable Law governing the collection, use, disclosure and protection of personal information in connection with any investigations, audits or inquiries made by any such bodies or authorities under such legislation.
(b)
To the extent of any conflict or inconsistency between this Section 53 and any other provision of the Project Agreement, this Section 53 shall prevail.
(c)
The obligations in this Section 53 shall survive the termination of this Project Agreement.
54.
INSURANCE AND PERFORMANCE SECURITY
54.1
General Requirements
(a)
Project Co and HMQ shall comply with the provisions of Schedule 25 - Insurance and Performance Security Requirements.
54.2
No Relief from Liabilities and Obligations
(a)
Neither compliance nor failure to comply with the insurance provisions of this Project Agreement shall relieve Project Co or HMQ of their respective liabilities and obligations under this Project Agreement.
55.1
King’s Highway/Title
(a)
Project Co acknowledges that the Roads will be a King?s Highway under all interpretations and for all purposes of Applicable Law with ownership vested in HMQ (except to the extent that such Roads are municipal roads with ownership vested in the applicable municipality or other relevant authority). For greater certainty, no provision of this Project Agreement shall confer upon Project Co any statutory or common law rights or privileges of HMQ with respect to a King?s Highway (or of a municipality or other relevant authority with respect to a municipal road) other than the licence rights and other rights specifically set out in this Project Agreement.
(b)
Title to each item and part of the Parkway, including any materials, supplies, equipment, facilities, parts and any other deliverable or component items, but not the risk of loss or damage or destruction thereto or thereof, shall pass to HMQ (or as HMQ may direct) upon the receipt of such item on the Site, provided however that title to items of tangible personal property (personal property that can be seen, weighed, measured, felt or touched or that is in any way perceptible to the senses and includes computer programs, natural gas and manufactured gas) that comprise the Parkway or are to be affixed or attached to a Phase of the Parkway prior to the relevant Phase Substantial Completion shall pass to HMQ (or as HMQ may direct) at the time that such items are included in the Parkway or affixed or attached to the Parkway.
56.1
Project Co Indemnities to HMQ
(a)
Project Co shall indemnify and save harmless HMQ and the Province Persons and each of their respective directors, officers, employees, agents and representatives from and against any and all Direct Losses which may be suffered, sustained, incurred or brought against them as a result of, in respect of, or arising out of any one or more of the following:
(i)
except to the extent described in Section 56.1(a)(ii), a failure by Project Co to achieve a Phase Substantial Completion by the relevant Phase Substantial Completion Date or Substantial Completion by the Scheduled Substantial Completion Date;
(ii)
any payments made by HMQ as compensation for lost toll revenue on the Detroit River International Crossing bridge as a result of a failure by Project Co to achieve Substantial Completion by the later of:
(A)
September 29, 2015; and
(B)
any revised Scheduled Substantial Completion Date pursuant to Section 40.2(d);
(iii)
any physical loss of or damage to all or any part of the Site and the Parkway, or to any equipment, assets or other property related thereto;
(iv)
the death or personal injury of any person;
(v)
any physical loss of or damage to property or assets of any third party; or
(vi)
any other loss or damage of any third party,
in each case, arising, directly or indirectly, out of, or in consequence of, or involving or relating to, the performance or any breach of this Project Agreement by Project Co or any act or omission of Project Co or any Project Co Party, except to the extent caused, or contributed to, by:
(vii)
the breach of this Project Agreement by HMQ; or
(viii)
in respect of Section 56.1(a)(i) or 56.1(a)(ii), any deliberate or negligent act or omission of HMQ or any Province Person; or
(ix)
in respect of Sections 56.1(a)(iii), 56.1(a)(iv), 56.1(a)(v) or 56.1(a)(vi), any act or omission of HMQ or any Province Person; or
(x)
a deliberate or negligent act or omission of a Parkway User that results in undue interference with Project Co?s performance of the OM&R Work and Project Co has been unable to take commercially reasonable steps necessary to prevent, negate or mitigate the undue interference due to acting in accordance with a recommendation or instruction of HMQ or an appropriate Province Person, except to the extent:
(A)
any such deliberate or negligent act or omission is caused or contributed to by Project Co or any Project Co Party; or
(B)
the Parkway User is acting in accordance with a direction, recommendation or instruction of Project Co or any Project Co Party.
(b)
Project Co shall indemnify and save harmless HMQ and each of its directors, officers, employees, agents and representatives from and against any and all Direct Losses which may be suffered, sustained, incurred or brought against them as a result of, in respect of, or arising out of any breach of a representation or warranty by Project Co herein.
(c)
Project Co shall indemnify and save harmless HMQ and each of its directors, officers, employees, agents and representatives from and against any and all Direct Losses which may be suffered, sustained, incurred or brought against them as a result of, in respect of, arising out of, or involving or relating to any one or more of the following:
(i)
the performance by Project Co of this Project Agreement not in accordance with or in breach of the requirements of any Permits, Licences and Approvals, Applicable Law or requirements of Governmental Authorities, or the failure of Project Co to obtain all necessary Project Co Permits, Licences and Approvals in accordance with this Project Agreement;
(ii)
any Contamination on, in or under, or migrating to or from, the Lands (or any lands formerly comprised in the Lands to the extent such Contamination was on, in or under, or migrated to or from, such lands while they were comprised in the Lands), except for Contamination for which HMQ is responsible pursuant to Section 16.2(a); or
(iii)
the provision of assistance by HMQ to Project Co pursuant to Section 9.6(c), except to the extent that such Direct Losses are caused, or contributed to, by the breach of this Project Agreement by HMQ or by any act or omission of HMQ or any HMQ Party.
(d)
Without prejudice to HMQ?s rights under Section 45 and any other rights under this Project Agreement, if HMQ exercises its step-in rights under the Construction Contractor?s Direct Agreement or, if applicable, any OM&R Provider?s Direct Agreement, Project Co shall indemnify HMQ for all obligations of Project Co assumed by HMQ under the Construction Contract or, if applicable, any OM&R Contract, as the case may be, and for all reasonable costs and expenses incurred by HMQ in relation to the exercise of HMQ?s rights.
(e)
Project Co shall indemnify HMQ for damages suffered or incurred on account of any payment not duly made by Project Co pursuant to the terms of this Project Agreement on the due date, by payment of an amount equal to the Payment Compensation Amount calculated from day to day at a rate per annum from the day after the date on which payment was due up to and including the date of payment.
56.2
HMQ Indemnities to Project Co
(a)
HMQ shall indemnify and save harmless Project Co and the Project Co Parties and each of their respective directors, officers, employees, agents and representatives from and against any and all Direct Losses which may be suffered, sustained, incurred or brought against them as a result of, in respect of, or arising out of any one or more of the following:
(i)
the death or personal injury of any person arising, directly or indirectly, out of, or in consequence of, or involving or relating to, the performance or breach of this Project Agreement by HMQ or any act or omission of any Province Person, except to the extent caused, or contributed to, by the breach of this Project Agreement by Project Co or by any act or omission of Project Co or any Project Co Party;
(ii)
any physical loss of or damage to all or any part of any property or assets of Project Co or any Project Co Party, arising, directly or indirectly, out of, or in consequence of, or involving or relating to, breach of this Project Agreement by HMQ or any deliberate or negligent act or omission of any Province Person, except to the extent caused, or contributed to, by the breach of this Project Agreement by Project Co or by any act or omission of Project Co or any Project Co Party; and
(iii)
any physical loss of or damage to property or assets of any third party, or any other loss or damage of any third party, arising, directly or indirectly, out of, or in consequence of, or involving or relating to, breach of this Project Agreement by HMQ or any deliberate or negligent act or omission of any Province Person, except to the extent caused, or contributed to, by the breach of this Project Agreement by Project Co or by any act or omission of Project Co or any Project Co Party,
provided that there shall be excluded from the indemnity given by HMQ any liability for the occurrence of risks against which Project Co is required to insure under this Project Agreement to the extent of the proceeds available or that should have been available but for a failure by Project Co to comply with its obligations to properly insure under this Project Agreement.
(b)
HMQ shall indemnify and save harmless Project Co and its directors, officers, employees, agents and representatives from and against any and all Direct Losses which may be suffered, sustained, incurred or brought against them as a result of, in respect of, or arising out of any breach of a representation or warranty by HMQ herein.
(c)
HMQ shall indemnify Project Co for damages suffered or incurred on account of any payment not duly made by HMQ pursuant to the terms of this Project Agreement on the due date, by payment of an amount equal to the Payment Compensation Amount calculated from day to day at a rate per annum from the day after the date on which payment was due up to and including the date of payment.
(a)
This Section 56.3 shall apply to the conduct of claims, made by a third person against a Party having, or claiming to have, the benefit of an indemnity pursuant to this Project Agreement. The Party having, or claiming to have, the benefit of the indemnity is referred to as the “Beneficiary” and the Party giving the indemnity is referred to as the “Indemnifier”.
(b)
If the Beneficiary receives any notice, demand, letter or other document concerning any claim for which it appears that the Beneficiary is, or may become entitled to, indemnification under this Section 56, the Beneficiary shall give written notice to the Indemnifier as soon as reasonably practicable and in any event within 10 Business Days of receipt of the same. Such notice shall specify with reasonable particularity, to the extent that information is available, the factual basis for the claim and the amount of the claim.
(c)
Subject to Sections 56.3(d), 56.3(e) and 56.3(f), on the giving of such notice by the Beneficiary, where it appears that the Beneficiary is or may be entitled to indemnification from the Indemnifier in respect of all, but not part only, of the liability arising out of the claim, the Indemnifier shall (subject to providing the Beneficiary with a secured indemnity to the Beneficiary?s reasonable satisfaction against all costs and expenses that the Beneficiary may incur by reason of such action) be entitled to dispute the claim in the name of the Beneficiary at the Indemnifier?s own expense and take conduct of any defence, dispute, compromise, or appeal of the claim and of any incidental negotiations. The Beneficiary shall give the Indemnifier all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim. The Beneficiary shall have the right to employ separate counsel in respect of such claim and the reasonable fees and expenses of such counsel shall be to the account of the Indemnifier only where representation of both the Indemnifier and Beneficiary by common counsel would be inappropriate due to any actual or potential conflicting interests between the Indemnifier and Beneficiary.
(d)
With respect to any claim conducted by the Indemnifier:
(i)
the Indemnifier shall keep the Beneficiary fully informed and consult with it about material elements of the conduct of the claim;
(ii)
the Indemnifier shall not bring the name or reputation of the Beneficiary into disrepute;
(iii)
the Indemnifier shall not pay, compromise or settle such claims without the prior consent of the Beneficiary, such consent not to be unreasonably withheld or delayed;
(iv)
the Indemnifier shall not admit liability or fault to any third party without the prior consent of the Beneficiary, such consent not to be unreasonably withheld or delayed; and
(v)
the Indemnifier shall use commercially reasonable efforts to have the Beneficiary named as a beneficiary under any release given by the persons bringing the claim to which this Section 56.3 relates.
(e)
The Beneficiary shall be free to pay or settle any such claim on such terms as it thinks fit and without prejudice to its rights and remedies under this Project Agreement if:
(i)
the Indemnifier is not entitled to take conduct of the claim in accordance with Section
(ii)
the Indemnifier fails to notify the Beneficiary of its intention to take conduct of the relevant claim within 10 Business Days of the notice from the Beneficiary under Section 56.3(b) or notifies the Beneficiary that the Indemnifier does not intend to take conduct of the claim; or
(iii)
the Indemnifier fails to comply in any material respect with Section 56.3(d).
(f)
The Beneficiary shall be free at any time to give notice to the Indemnifier that the Beneficiary is retaining or taking over, as the case may be, the conduct of any defence, dispute, compromise or appeal of any claim, or of any incidental negotiations, to which Section 56.3(c) applies. For greater certainty, Project Co acknowledges and agrees that where HMQ is the Beneficiary, HMQ may retain or take over such conduct in any matter involving Personal Information or any matter involving public policy. On receipt of such notice the Indemnifier shall promptly take all steps necessary to transfer the conduct of such claim to the Beneficiary, and shall provide to the Beneficiary all relevant documentation and all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim. If the Beneficiary gives any notice pursuant to this Section 56.3(f), then the Indemnifier shall be released from any liabilities arising under the applicable indemnity hereunder in respect of the applicable claim.
(g)
If the Indemnifier pays to the Beneficiary an amount in respect of an indemnity and the Beneficiary subsequently recovers, whether by payment, discount, credit, saving, relief or other benefit or otherwise, a sum or anything else of value (the “Recovery Amount”) which is directly referable to the fact, matter, event or circumstances giving rise to the claim under the indemnity, the Beneficiary shall forthwith repay to the Indemnifier whichever is the lesser of:
(i)
an amount equal to the Recovery Amount less any out-of-pocket costs and expenses properly incurred by the Beneficiary in recovering the same; and
(ii)
the amount paid to the Beneficiary by the Indemnifier in respect of the claim under the relevant indemnity,
provided that there shall be no obligation on the Beneficiary to pursue any Recovery Amount and that the Indemnifier is repaid only to the extent that the Recovery Amount, aggregated with any sum recovered from the Indemnifier, exceeds the loss sustained by the Beneficiary except, however, that if the Beneficiary elects not to pursue a Recovery Amount, the Indemnifier shall be entitled to require an assignment to it of the right to do so.
(h)
Any person taking any of the steps contemplated by this Section 56.3 shall comply with the requirements of any insurer who may have an obligation to provide an indemnity in respect of any liability arising under this Project Agreement.
56.4
Mitigation - Indemnity Claims
(a)
For greater certainty, Section 64.4 applies to any indemnity given under this Project Agreement and any such indemnity shall not extend to Direct Losses which could have been reduced or avoided by the Beneficiary complying with such Section.
(a)
Subject to Section 57.1(b), without prejudice to HMQ?s rights under the Payment Mechanism, or the Parties? rights in respect of payments provided for herein, the indemnities under this Project Agreement shall not apply and there shall be no right to claim damages for breach of this Project Agreement, in tort or on any other basis whatsoever, to the extent that any loss claimed by either Party is:
(i)
for punitive, exemplary or aggravated damages;
(ii)
for loss of profits, loss of use, loss of production, loss of business or loss of business opportunity; or
(iii)
is a claim for consequential loss or for indirect loss of any nature suffered or allegedly suffered by either Party,
(collectively, “Indirect Losses”).
(b)
With respect to the indemnity in:
(i)
Section 56.1(a)(i), the exceptions in Sections 57.1(a)(ii) and (iii) shall not apply as a result of, or in relation to, HMQ?s loss of use of the Parkway or a portion thereof, which for the purposes of Section 56.1(a)(i), shall be Direct Losses; and
(ii)
Section 56.1(a)(ii), the exceptions in Section 57.1(a)(ii) and Section 57.1(a)(iii) shall not apply in respect of payments made by HMQ as compensation for lost toll revenue on the Detroit River International Crossing bridge, which for the purposes of Section 56.1(a)(ii), shall be Direct Losses.
57.2
No Liability in Tort
(a)
Subject to the indemnities provided herein, neither HMQ nor any Province Persons shall be liable in tort to Project Co or any Project Co Party, and neither Project Co nor any Project Co Party shall be liable in tort to HMQ or any Province Person in respect of any negligent act or omission of any such person relating to or in connection with this Project Agreement and no such person shall bring such a claim.
(a)
Subject to:
(i)
any other rights of HMQ expressly provided for in this Project Agreement; and
(ii)
HMQ?s right to claim, on or after termination of this Project Agreement, the amount of its reasonable costs, losses, damages and expenses suffered or incurred by it as a result of rectifying or mitigating the effects of any breach of this Project Agreement by Project Co except to the extent that the same has already been recovered by HMQ pursuant to this Project Agreement or has been taken into account to reduce any compensation payable by HMQ pursuant to Section 49,
the sole remedy of HMQ in respect of a failure to perform the OM&R Work in accordance with this Project Agreement shall be the operation of the Payment Mechanism.
(b)
Nothing in Section 57.3(a) shall prevent or restrict the right of HMQ to seek injunctive relief or a decree of specific performance or other discretionary remedies of a court of competent jurisdiction.
(c)
Notwithstanding any other provision of this Project Agreement, and except to the extent recovered under any of the insurances required pursuant to Schedule 25 - Insurance and Performance Security Requirements, neither Party shall be entitled to recover compensation or make a claim under this Project Agreement, or any other agreement in relation to the Project, in respect of any loss that it has incurred (or any failure of the other Party) to the extent that the Party has already been compensated in respect of that loss or failure pursuant to this Project Agreement, or otherwise.
(a)
Subject to Section 57.4(b), the maximum aggregate liability of each Party in respect of all claims under Section 56 except for any claims under Section 56.1(a)(ii) shall not exceed $[REDACTED]. This limit shall be index linked and shall be exclusive of any insurance or performance security proceeds received or which will be received pursuant to policies maintained in accordance with Schedule 25 - Insurance and Performance Security Requirements. This limit shall not apply in cases of wilful misconduct or deliberate acts of wrongdoing.
(b)
Project Co?s maximum aggregate liability in respect of all claims under Section 56.1(a)(i) shall not exceed $[REDACTED]. This limit shall be index linked and shall be exclusive of any insurance or performance security proceeds received or which will be received pursuant to policies maintained in accordance with Schedule 25 - Insurance and Performance Security Requirements. This limit shall not apply in cases of wilful misconduct or deliberate acts of wrongdoing.
(c)
Project Co?s maximum aggregate liability in respect of all claims under Section 56.1(a)(ii) shall not exceed $[REDACTED]. This limit shall be index linked and shall be exclusive of any insurance or performance security proceeds received or which will be received pursuant to policies maintained in accordance with Schedule 25 - Insurance and Performance Security Requirements. This limit shall not apply in cases of wilful misconduct or deliberate acts of wrongdoing.
(d)
Nothing in this Section 57.4 shall restrict, limit, prejudice or in any other way impair the rights and/or remedies of the Parties under any other provision of this Project Agreement.
58.
DISPUTE RESOLUTION PROCEDURE
(a)
All Disputes shall be resolved in accordance with, and the Parties shall comply with, Schedule 27
Dispute Resolution Procedure.
59.
ASSIGNMENT, SUBCONTRACTING AND CHANGES IN CONTROL
59.1
Project Co Assignment
(a)
Project Co shall not assign, transfer, charge, dispose of or otherwise alienate any interest in this Project Agreement, the Construction Contract, any OM&R Contract, if applicable, or any agreement entered into in connection with this Project Agreement without the prior written consent of HMQ, provided however that no assignment, transfer, charge, disposition or other alienation shall be permitted to a person where that person or its Affiliate is a Restricted Person or a person whose standing or activities: (i) are inconsistent with HMQ?s role (in HMQ?s reasonable opinion) in the Province of Ontario; (ii) may compromise the reputation or integrity of HMQ and/or any HMQ Party; or (iii) are inconsistent with the nature of the Province of Ontario?s highway or parks system, so as to affect public perception of that system.
(b)
Section 59.1(a) shall not apply to the grant of any security for any loan made to Project Co under the Lending Agreements provided that any grantee of such security shall enter into the Lenders? Direct Agreement in relation to the exercise of its rights, if HMQ so requires.
(a)
HMQ may assign, transfer, dispose of or otherwise alienate any interest in this Project Agreement or any agreement in connection with this Project Agreement to which Project Co and HMQ are parties:
(i)
as may be required to comply with Applicable Law;
(ii)
to any minister of HMQ;
(iii)
to an agency of HMQ having the legal capacity, power, authority and ability to become a party to and to perform the obligations of HMQ under this Project Agreement provided that such person confirms in writing to Project Co that it will perform all of HMQ?s obligations hereunder and under the other Project Documents to which HMQ is a party in respect of the period from and after the assignment; and
(iv)
in circumstances other than those described in Sections 59.2(a)(i) to 59.2(a)(iii), with the prior written consent of Project Co; provided that the person to whom any such assignment, transfer, disposition or other alienation is made has the capacity to perform, and confirms in writing to Project Co that it will perform all the obligations of HMQ hereunder and under any agreement in connection with this Project Agreement to which Project Co and HMQ are parties in respect of the period from and after the assignment.
(b)
HMQ shall not be released of any of its obligations under this Project Agreement except upon an assignment, transfer, disposition or other alienation of its interest in this Project Agreement in accordance with this Section 59.2.
(a)
Project Co shall not subcontract any interest in this Project Agreement, the Construction Contract or, if applicable, any OM&R Contract, and shall not permit the Construction Contractor to subcontract any interest in the Construction Contract, or, if applicable, any OM&R Provider to subcontract any interest in any OM&R Contract, to a Restricted Person, or any Affiliate thereof, or a person whose standing or activities: (i) are inconsistent with HMQ?s role (in HMQ?s reasonable opinion) in the Province of Ontario; (ii) may compromise the reputation or integrity of HMQ and/or any HMQ Party; or (iii) are inconsistent with the nature of the Province of Ontario?s highway or parks system, so as to affect public perception of that system.
(b)
Project Co shall not terminate, agree to the termination of or replace the Construction Contractor or, if applicable, any OM&R Provider, or make any initial appointment of an OM&R Provider, unless Project Co has complied with Sections 7.2(a), 59.3(c) and 59.3(d) or received the prior written consent of HMQ.
(c)
Subject to Section 59.3(d), if either the Construction Contract or, if applicable, any OM&R Contract, shall at any time lapse, terminate or otherwise cease to be in full force and effect, whether by reason of expiry, default or otherwise, with the effect that the Construction Contractor or, if applicable, any OM&R Provider, as the case may be, shall cease to act in relation to the Project, Project Co shall forthwith appoint a replacement, subject to HMQ?s prior written consent, acting reasonably, as to the suitability of the replacement.
(d)
It is a condition of replacement of the Construction Contractor or, if applicable, any OM&R Provider that, and Project Co shall require that, any replacement enter into a contract upon the same or substantially similar terms as the person so replaced and into a direct agreement on the same terms as the Direct Agreement entered into by the person so replaced, unless any material variations are approved by HMQ, acting reasonably. It is a condition of any initial appointment of an OM&R Provider that, and Project Co shall require that, any initial OM&R Provider enter into an OM&R Contract in form and substance satisfactory to HMQ, acting reasonably, and into a direct agreement in the form of the OM&R Provider?s Direct Agreement.
(e)
Except as required by Section 45.5(a), Project Co shall not appoint any initial OM&R Provider or otherwise subcontract the performance of any of the OM&R Work without the prior written consent of HMQ, acting reasonably.
59.4
Changes in Ownership and Control
(a)
No Change in Ownership of Project Co, or of any person with any form of direct, indirect, beneficial or other ownership interest in Project Co, shall be permitted:
(i)
where the person acquiring the ownership interest is a Restricted Person or a person whose standing or activities: (i) are inconsistent with HMQ?s role (in HMQ?s reasonable opinion) in the Province of Ontario; (ii) may compromise the reputation or integrity of HMQ and/or, any HMQ Party; or (iii) are inconsistent with the nature of the Province of Ontario?s highway or parks system, so as to affect public perception of that system; or
(ii)
if such Change in Ownership would have a material adverse effect on the performance of the Project Operations, the Governmental Activities or the availability of the Parkway to Parkway Users.
(b)
Prior to the third anniversary following the Substantial Completion Date, HMQ shall be entitled to receive a [REDACTED] per cent share of any Excess Equity Gain arising from a Change in Ownership of Project Co.
(c)
Subject to Sections 59.4(a) and (b), no Change in Control of Project Co, or of any person with any form of direct, indirect, beneficial or other ownership interest in Project Co, shall be permitted without the prior written consent of HMQ.
(d)
This Section 59.4 shall not apply to a Change in Ownership or Change in Control of persons whose equity securities or units evidencing ownership or any other ownership interests are listed on a recognized stock exchange.
(e)
Whether or not Project Co is required to obtain HMQ?s consent pursuant to this Section 59.4, Project Co shall provide notice to HMQ of any proposed Change in Ownership or Change in Control of Project Co, or of any person with any form of direct, indirect, beneficial or other ownership interest in Project Co, as the case may be, within 5 Business Days after such Change in Ownership or Change in Control, and such notification shall include a statement identifying, in respect of the relevant owners in the ownership interests of Project Co, or of any person with an ownership interest in Project Co, as the case may be, the holdings prior to and proposed holdings following the Change in Ownership or Change in Control, respectively.
(a)
Project Co shall promptly reimburse HMQ for HMQ?s reasonable due diligence costs (including fees of professional advisors) in connection with any consent required of HMQ pursuant to, or HMQ?s determination of Project Co?s compliance with, Sections 59.1, 59.3 or 59.4, whether or not such consent is granted.
(a)
The term “Prohibited Act” means:
(i)
offering, giving or agreeing to give to HMQ or any public body (or anyone employed by or acting on their behalf), or to any family member of such person, any gift or consideration of any kind as an inducement or reward:
(A)
for doing or not doing, or for having done or not having done, any act in relation to the obtaining or performance of this Project Agreement or any other agreement with HMQ or any public body in connection with the Project; or
(B)
for showing or not showing favour or disfavour to any person in relation to this Project Agreement or any other agreement with HMQ or any public body in connection with the Project;
provided that this Section 60.1(a)(i) shall not apply to Project Co or any Project Co Party (or anyone employed by or acting on their behalf) providing consideration to HMQ or any public body in the ordinary course, or as reasonably necessary, to fulfill or comply with the obligations and liabilities of Project Co under this Project Agreement or any other agreement with HMQ or any public body in connection with the Project;
(ii)
entering into this Project Agreement or any other agreement with HMQ or any public body in connection with the Project if a commission or a fee has been paid or has been agreed to be paid by Project Co, or on its behalf or to its knowledge, to HMQ or any public body (or anyone employed by or acting on their behalf), or to any family member of such person, unless, before the relevant agreement is entered into, particulars of any such commission or fee have been disclosed in writing to HMQ, provided that this Section 60.1(a)(ii) shall not apply to a fee or commission paid by Project Co or any Project Co Party (or anyone employed by or acting on their behalf) to HMQ or any public body pursuant to an agreement where such fee or commission is paid in the ordinary course, or as reasonably necessary, to fulfill or comply with the obligations and liabilities of Project Co under this Project Agreement or any other agreement with HMQ or any public body in connection with the Project without contravening the intent of this Section 60;
(iii)
breaching or committing any offence under Applicable Law in respect of corrupt or fraudulent acts in relation to this Project Agreement or any other agreement with HMQ or any public body in connection with the Project; or
(iv)
defrauding or attempting to defraud or conspiring to defraud HMQ or any other public body.
(a)
If Project Co or any Project Co Party (or anyone employed by or acting on their behalf) commits any Prohibited Act, then HMQ shall be entitled to act in accordance with the following:
(i)
if the Prohibited Act is committed by Project Co or by an employee acting under the direction of a director or officer of Project Co, then HMQ may give written notice to Project Co and Section 45 shall apply;
(ii)
if the Prohibited Act is committed by an employee of Project Co acting independently of a direction of a director or officer of Project Co, then HMQ may give written notice to Project Co and Section 45 shall apply, unless, within 30 days of receipt of such notice, Project Co terminates the employee?s employment and ensures that the relevant part of the Project Operations shall be performed by another person;
(iii)
if a Prohibited Act is committed by a Project Co Party or by an employee of that Project Co Party not acting independently of a direction of a director or officer of that Project Co Party, then HMQ may give written notice to Project Co and Section 45 shall apply, unless, within 30 days of receipt of such notice, Project Co terminates the relevant Subcontract and ensures that the relevant part of the Project Operations shall be performed by another person, where relevant, in accordance with Section 59.3;
(iv)
if the Prohibited Act is committed by an employee of a Project Co Party acting independently of a direction of a director or officer of that Project Co Party, then HMQ may give notice to Project Co and Section 45 shall apply, unless, within 30 days of receipt of such notice, Project Co causes the termination of the employee?s employment and ensures that the relevant part of the Project Operations shall be performed by another person; and
(v)
if the Prohibited Act is committed on behalf of Project Co or a Project Co Party by a person not specified in Sections 60.2(a)(i) to 60.2(a)(iv), then HMQ may give notice to Project Co and Section 45 shall apply, unless, within 30 days of receipt of such notice, Project Co causes the termination of such person?s employment or the appointment of their employer and, if necessary, ensures that the relevant part of the Project Operations shall be performed by another person.
(b)
Any notice of termination under this Section 60.2 shall specify:
(i)
the nature of the Prohibited Act;
(ii)
the identity of the person whom HMQ believes has committed the Prohibited Act; and
(iii)
the date of termination in accordance with the applicable provisions of this Project Agreement.
(c)
Without prejudice to its other rights or remedies under this Section 60.2, HMQ shall be entitled to recover from Project Co any Direct Loss sustained in consequence of any breach of this Section
(a)
Nothing contained in this Section 60 shall prevent Project Co or any other person from paying any proper commission, fee or bonus whether to its employees within the agreed terms of their employment or otherwise, and such commission fee or bonus shall not constitute a Prohibited Act.
(a)
Project Co shall notify HMQ of the occurrence and details of any Prohibited Act promptly on Project Co becoming aware of its occurrence.
60.5
Replacement of Project Co Party
(a)
Where Project Co is required to replace any Project Co Party pursuant to this Section 60, the party replacing such Project Co Party shall from the time of the replacement be deemed to be a Project Co Party and the provisions of this Project Agreement shall be construed accordingly.
(a)
All notices, requests, demands, instructions, certificates, consents and other communications (each being a “Notice”) required or permitted under this Project Agreement shall be in writing (whether or not “written notice” or “notice in writing” is specifically required by the applicable provision of this Project Agreement) and served by sending the same by registered mail, facsimile or by hand, as follows:
If to Project Co:
With a copy to:
With a copy to:
If to HMQ:
With a copy to:
Notices to Representatives
[REDACTED]
Fax No.: [REDACTED]
Attn: [REDACTED]
[REDACTED]
Fax No.: [REDACTED]
Attn: J. [REDACTED]
[REDACTED]
Fax No.: [REDACTED]
Attn: [REDACTED]
Infrastructure Ontario
777 Bay Street, 6th Floor
Toronto, Ontario
M5G 2C8
Fax: [REDACTED]
Attn.: [REDACTED]
Ministry of Transportation
900 Bay Street, Room M1-21
Toronto, Ontario
M7A 2A2
Fax: [REDACTED]
Attn.: [REDACTED]
or submitted to the HMQ Representative or the Project Co Representative it shall be provided or submitted by sending the same by registered mail, facsimile or by hand, as follows:
If to Project Co Representative:
If to HMQ Representative:
With a copy to:
Facsimile
[REDACTED]
Fax No.: [REDACTED]
Attn: [REDACTED]
Infrastructure Ontario
777 Bay Street, 6 Floor
Toronto, Ontario
M5G 2C8
Fax: [REDACTED]
Attn.: [REDACTED]
Ministry of Transportation
900 Bay Street, Room M1-21
Toronto, Ontario
M7A 2A2
Fax: [REDACTED]
Attn.: [REDACTED]
via facsimile shall promptly be sent by regular mail or registered mail. For greater certainty, a Notice given via facsimile shall not be invalid by reason only of a Party?s failure to comply with this Section 61.3.
(a)
Either Party to this Project Agreement may, from time to time, change any of its contact information set forth in Sections 61.1 or 61.2 by prior Notice to the other Party, and such change shall be effective on the Business Day that next follows the recipient Party?s receipt of such Notice unless a later effective date is given in such Notice.
61.5
Deemed Receipt of Notices
(a)
Subject to Sections 61.5(b), 61.5(c) and 61.5(d):
(i)
a Notice given by registered mail shall be deemed to have been received on the third Business Day after mailing;
(ii)
a Notice given by hand delivery shall be deemed to have been received on the day it is delivered; and
(iii)
a Notice given by facsimile shall be deemed to have been received on the day it is transmitted by facsimile.
(b)
If the Party giving the Notice knows or ought reasonably to know of difficulties with the postal system which might affect negatively the delivery of mail, any such Notice shall not be mailed but shall be made or given by personal delivery or by facsimile transmission in accordance with this Section 61.
(c)
If any Notice delivered by hand or transmitted by facsimile is so delivered or transmitted, as the case may be, either on a day that is not a Business Day or on a Business Day after 4:00 p.m. (recipient?s local time), then such Notice shall be deemed to have been received by such recipient on the next Business Day.
(d)
A Notice given by facsimile shall be deemed to have been received by the recipient on the day it is transmitted only if a facsimile transmission report (maintained by the sender) indicates that the transmission of such Notice was successful.
(a)
Where any Notice is required to be served on HMQ, the obligation to serve such Notice shall be fulfilled by serving it on HMQ in accordance with the provisions of this Section 61.
(a)
From the Initial Works Commencement Date until the Phase Substantial Completion Date of Phase One, upon the occurrence of an Emergency, Project Co shall comply with the MTO SouthWestern Region Emergency Plan.
(b)
From and after the Phase Substantial Completion Date of Phase One, upon the occurrence of an Emergency, Project Co shall comply with its Emergency Response Plan in accordance with Part 2, Article 15 of the Design and Construction Specifications.
(c)
If, in respect of any Emergency, HMQ notifies Project Co that it requires compliance with any additional or overriding procedures as may be determined by HMQ or any other statutory body, then Project Co shall, subject to Schedule 22 – Variation Procedure (if compliance with such procedures constitutes a Variation), comply with such procedures (whether such procedures are specific to the particular Emergency or of general application and on the basis that such procedures shall take precedence to the extent that they overlap with the procedures mentioned in Section 62.1(a) or (b).
(a)
At any time and from time to time, HMQ may designate any ministry, branch, agency, division, department or office of the Government of Ontario to carry out administrative responsibility for the rights and obligations of HMQ under this Project Agreement (including, without limitation, review of all documentation submitted by Project Co, a Project Co Representative or a Project Co Party to HMQ for review, approval, comment, evaluation or otherwise as described in this Project Agreement, engagement in discussions, consultations and meetings with Project Co, submission of notices and documentation to HMQ, issuances of notices, documentation, Variation Confirmations and related matters) and Project Co may deal exclusively with the designated person in respect of all such matters and is entitled to rely on the actions, directions, requests, notices, consents, approvals, waivers, and comments relating to the review of documentation and other administrative matters and decisions determined by such designated person from time to time, until HMQ has notified Project Co in writing that such designated person is no longer the person designated by HMQ hereunder and such notice shall have effect on the later of the date of delivery of such notice and the date specified in the written notice). HMQ shall advise Project Co in writing of any designation hereunder. The rights and obligations of the parties to this Project Agreement shall be in no way affected by reason of any such designation. Project Co acknowledges the right of HMQ to delegate administrative responsibilities hereunder as set forth in this Section 63.1.
(a)
This Project Agreement may not be varied, amended or supplemented except by an agreement in writing signed by duly authorized representatives of the Parties and stating on its face that it is intended to be an amendment, restatement or other modification, as the case may be, to this Project Agreement.
(a)
No waiver made or given by a Party under or in connection with this Project Agreement shall be binding or effective unless the waiver is in writing, signed by an authorized representative of the Party giving such waiver, and delivered by such Party to the other Party. No waiver made with respect to any right, power or remedy in one instance will be deemed to be a waiver with respect to any other instance involving the exercise of such right, power, or remedy or with respect to any other right, power, or remedy.
(b)
Failure by either Party to exercise any of its rights, powers or remedies hereunder or its delay to do so shall not constitute a waiver of those rights, powers or remedies. The single or partial exercise of a right, power or remedy shall not prevent its subsequent exercise or the exercise of any other right, power or remedy.
64.3
Relationship Between the Parties
(a)
The Parties are independent contractors. This Project Agreement is not intended to and does not create or establish between the Parties, or between HMQ and any Project Co Party, any relationship as partners, joint venturers, employer and employee, master and servant, or (except as provided in this Project Agreement), of principal and agent, and does not create or establish any relationship whatsoever between HMQ and any representative or employee of Project Co or the Project Co Parties.
(b)
The Parties further agree that:
(i)
except as expressly provided in this Project Agreement, neither Party shall be, or be deemed to be, an agent of the other Party, and neither Party shall have authority hereunder to represent it that is an agent of the other Party, or to accept any order, or enter into any contract or agreement, or make any representations or warranties of any kind to any person, or to assume or create any obligation, express or deemed, on behalf of or binding, or purportedly binding upon, the other Party;
(ii)
neither Party shall be required to make or pay employment benefits, contributions for Employment Insurance, Canada Pension Plan, Workers? Compensation Board or other similar levies with respect to any persons employed or engaged by the other Party;
(iii)
except as otherwise expressly provided in this Project Agreement, each Party shall be free from the control of the other Party as to the manner in which it shall perform its obligations, or cause same to be performed, under this Project Agreement; and
(iv)
any person which a Party may engage as an agent, employee, subcontractor or otherwise, to perform such Party?s obligations under this Project Agreement, as permitted hereby, shall, unless the Parties otherwise agree in writing, be engaged by such Party to act solely on behalf of such Party, and such person shall not act, or be deemed to act, on behalf of the Party that did not engage its services.
64.4
General Duty to Mitigate
(a)
HMQ and Project Co shall at all times take commercially reasonable steps to minimize and mitigate any loss for which the relevant Party is entitled to bring a claim against the other Party pursuant to this Project Agreement.
(a)
Without limitation to its actual knowledge and/or such knowledge which it, at law, may from time to time, be deemed to have, Project Co and HMQ shall, for all purposes of this Project Agreement, be deemed to have such knowledge in respect of the Project as is actually held (or ought reasonably to be held) by the directors, officers and senior management of each Partner of Project Co and in the case of HMQ, the directors, officers and senior management of IO, and the HMQ Representative or the Project Co Representative, as applicable. For clarity, except as expressly set out to the contrary, a reference in this Project Agreement to the “knowledge” of Project Co or of HMQ shall be construed in a manner consistent with the foregoing sentence.
(a)
Except where provided otherwise in this Project Agreement, this Project Agreement constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all prior representations, communications, negotiations and understandings, whether oral, written, express or implied, concerning the subject matter of this Project Agreement.
(a)
Each of the Parties acknowledge that:
(i)
it has not entered into this Project Agreement on the basis of and does not rely, and has not relied, upon any statement or representation, whether negligent or innocent, or warranty or other provision, whether oral, written, express or implied, made or agreed to by any person, whether a Party to this Project Agreement or not, except those expressly made, given or repeated in this Project Agreement and the only remedy or remedies available in respect of any misrepresentation or untrue statement made to it shall be those expressly provided for in this Project Agreement; and
(ii)
this Section 64.7 shall not apply to any statement, representation or warranty made fraudulently, or to any provision of this Project Agreement which was induced by fraud, for which the remedies available shall be all those available under the law governing this Project Agreement.
(a)
Each provision of this Project Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Project Agreement is declared invalid, unenforceable or illegal by the courts of a competent jurisdiction, such provision may be severed and such invalidity, unenforceability or illegality shall not prejudice or affect the validity, enforceability and legality of the remaining provisions of this Project Agreement. If any such provision of this Project Agreement is invalid, unenforceable or illegal, the Parties shall, acting in good faith, promptly negotiate new provisions to eliminate such invalidity, unenforceability or illegality and to restore this Project Agreement as near as possible to its original intent and effect.
(a)
This Project Agreement and any other agreement entered into in connection with the Project to which both HMQ and Project Co are parties shall enure to the benefit of, and be binding on, HMQ and Project Co and their respective successors and permitted transferees and assigns.
64.10
Governing Law and Jurisdiction
(a)
This Project Agreement, and each of the documents contemplated by or delivered under or in connection with this Project Agreement, shall be governed by and construed in accordance with the laws of Ontario and the laws of Canada applicable therein and shall be treated in all respects as an Ontario contract, without regard to conflict of laws principles.
(b)
Subject to Schedule 27 - Dispute Resolution Procedure, both Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals therefrom.
64.11
Cumulative Remedies
(a)
Except as otherwise set forth in this Project Agreement, the rights, powers and remedies of each Party set forth in this Project Agreement are cumulative and are in addition to and without prejudice to any other right, power or remedy that may be available to such Party under this Project Agreement.
(a)
Each Party shall do all things, from time to time, and execute all further documents necessary to give full effect to this Project Agreement.
(a)
Each Party shall be responsible for paying its own costs and expenses incurred in connection with the negotiation, preparation and execution and delivery of this Project Agreement.
64.14
Language of Agreement
(a)
Each of the parties acknowledges having requested and being satisfied that this Project Agreement and related documents be drawn in English. Chacune des parties reconnaît avoir demandé que ce document et ses annexes soient rédigés en anglais et s?en declare satisfaite.
(b)
For greater certainty, all correspondence, notices, drawings, test reports, certificates, specifications, information, operating and maintenance instructions, name plates, identification labels, instructions and notices to the public and staff and all other written, printed or electronically readable matter required in accordance with, or for purposes envisaged by, this Project Agreement shall be in English.
(a)
HMQ and Project Co each reserve the right to require any person executing this Project Agreement on behalf of the other Party to provide proof, in a form acceptable to HMQ or Project Co, as applicable, that they have the requisite authority to execute this Project Agreement on behalf of and to bind HMQ or Project Co, as applicable.
(a)
This Project Agreement may be executed in one or more counterparts. Any single counterpart or a set of counterparts executed, in either case, by all the Parties shall constitute a full, original and binding agreement for all purposes. Counterparts may be executed either in original or faxed form provided that any Party providing its signature in faxed form shall promptly forward to the other Party an original signed copy of this Project Agreement which was so faxed.
64.17
Province Persons as Third Party Beneficiaries
(a)
The provisions of Sections 6.1, 6.2(a), 6.3(a), 8.1(e), 9.2(a)(i), 9.2(a)(ii), 9.4(b), 9.5(a)(v), 16.1(a),
20.3
(j), 21.1, 35.6, 36.2(e), 51.6(a), 56.1, and 57.2(a) and each other provision of this Project Agreement which is expressed to be for the benefit of a Province Person or an HMQ Party, as applicable, are:
(i)
intended for the benefit of each Province Person, or HMQ Party, as applicable and, if so set out in the relevant Section, each Province Person?s or HMQ Party?s, as applicable, directors, officers employees, board appointees, agents and representatives, and shall be enforceable by each of such persons and his or her heirs, executors, administrators and other legal representatives (collectively, in respect of each Province Person, the “Province Person Third Party Beneficiaries”, and in respect of each HMQ Party, the “HMQ Third Party Beneficiaries”); and
(ii)
are in addition to, and not in substitution for, any other rights that the Province Person Third Party Beneficiaries may have in contract or otherwise.
(b)
HMQ shall hold the rights and benefits of Sections 6.1, 6.2(a), 6.3(a), 8.1(e), 9.2(a)(i), 9.2(a)(ii),
9.4
(b), 9.5(a)(v), 16.1(a), 20.3(j), 21.1, 35.6, 36.2(e), 51.6(a), 56.1, and 57.2(a) and each other provision of this Project Agreement which is to the benefit of a Province Person or an HMQ Party, as applicable, in trust for and on behalf of the Province Person Third Party Beneficiaries or HMQ Third Party Beneficiaries, as applicable, and HMQ hereby accepts such trust and agrees to hold the benefit of and enforce performance of such covenants on behalf of the Province Person Third Party Beneficiaries or HMQ Third Party Beneficiaries, as applicable.
IN WITNESS WHEREOF the Parties have executed this Project Agreement as of the date first above written.
ONTARIO INFRASTRUCTURE PROJECTS CORPORATION, as agent for Her Majesty The Queen in Right of Ontario, as represented by the Minister of Infrastructure
Per:
Per:
I/We have authority to bind the Corporation WINDSOR ESSEX MOBILITY GROUP GP
[REDACTED]
[REDACTED]
Per:
Per:
I/We have authority to bind the corporation.
[REDACTED]
Per:
Per:
I/We have authority to bind the corporation.
[REDACTED]
Per:
Per:
Title:
I/We have authority to bind the corporation.