Model Project Development Agreement Page 58
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88complying, with its obligations in this Agreement by such Force Majeure Event as
determined by the Compensation Committee of Independent Experts. However, such
extension of time limits and deadlines shall in no case exceed five (5) years in total; and
16.5.3
other than for breaches of this Agreement by the other Party, and subject to the effects of
Sections 22.1, 16.5.4, 16.7, 16.8 and 18.4, the other Party shall not bear any liability for
any loss or expense suffered by the Affected Party as a result of a Force Majeure Event
or its effects,
provided that no relief, including the extension of performance deadlines and the Term of
this Agreement, shall be granted to the Affected Party pursuant to this Section 16.5 to the
extent that such failure or delay:
(A)
would have nevertheless been experienced by the Affected Party had
the Force Majeure Event not occurred; or
(B)
was caused by the failure of the Affected Party to comply with its
obligations under Section 16.4 to mitigate such Force Majeure Event.
16.5.4 The GON shall constitute a Compensation Committee of Independent Experts to
determine the period to be extended and the amount to be compensated to the Affected
Party upon the occurrence of a Force Majeure Event as referred in this Section 16. If
either Party does not accept the decision of the Compensation Committee of
Independent Experts, such matter may be referred to an arbitration in accordance with
Section 21. The cost of the compensation committee shall be equally borne by the GON
and the Company.
Consequences of Political Force Majeure Events prior to COD
16.6
16.6.1
Upon the occurrence of a Political Force Majeure Event prior to COD, the Company
shall be entitled to recover (without duplication of any amounts recovered under the
Export Power Purchase Agreement) the costs reasonably and necessarily incurred by the
Company or any Contractor as a result of one or more Political Force Majeure Events or
its or their effects or by any combination thereof in:
(A)
protecting the Hydro Property against damage or deterioration;
(B)
suspending the delivery of (and storing, pending the resumption of
deliveries) any plant, equipment and materials which have been ordered
by the Company for the Hydro Property;
(C)
demobilising and, upon resumption of performance, remobilisation of
their plant and employees and those of any subcontractor, including the
cost of such employees being kept on standby, pending resumption of
the works;
(D)
extending the hire period of any plant, equipment, appliances and
vehicles, including the additional cost of hire; and
(E)
any further costs incurred by the Company in relation to the financing
of the costs specified above, including any fees payable to the Lenders
in respect of further financing.
Provided, however, that the GON shall be held liable only to such cost which is attributable to it
because of lack of its due diligence in preventing the occurrence of the Political Force Majeure
Events as determined by the Compensation Committee of Independent Experts. In case, the GON
exercises its due diligence in preventing the Political Force Majeure Events, the GON shall only
extend the period of this Agreement as determined by the compensation committee of independent
experts.
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