PORTION THEREOF, SHALL SUBJECT MGP TO THE IMPOSITION OF FURTHER CIVIL
PENALTIES AND COURT ACTION TO ENFORCE THE TERMS OF THE CAO. MGP RESERVES THE
RIGHT TO CONTEST SUCH PENALTIES AND COURT ACTION.
FORCE MAJEURE, EXCUSABLE DELAY, MODIFICATION
43.
THE FOLLOWING SHALL CONSTITUTE THE GOVERNING
TERMS FOR FORCE MAJEURE, EXCUSABLE DELAY AND MODIFICATION OF THE CAO.
A.
MGP SHALL PERFORM THE REQUIREMENTS
UNDER THIS CAO WITHIN THE TIME LIMITS SET FORTH HEREIN UNLESS, THE PERFORMANCE
IS PREVENTED OR DELAYED SOLELY BY EVENTS WHICH CONSTITUTE A FORCE MAJEURE. FOR
PURPOSES OF THIS CAO A FORCE MAJEURE IS DEFINED AS ANY EVENT BEYOND THE CONTROL
OF MGP WHICH COULD NOT BE OVERCOME BY DUE DILIGENCE AND WHICH DELAYS OR PREVENTS
PERFORMANCE BY A DATE REQUIRED BY THIS CAO. SUCH EVENTS DO NOT INCLUDE INCREASED
COSTS OF PERFORMANCE OR CHANGED ECONOMIC CIRCUMSTANCES. ANY DELAY CAUSED IN
WHOLE OR IN PART BY ACTION OR INACTION BY STATE AUTHORITIES SHALL BE CONSIDERED
A FORCE MAJEURE AND SHALL NOT BE DEEMED A VIOLATION OF ANY OBLIGATIONS REQUIRED
BY THIS CAO.
9
B.
MGP SHALL HAVE THE BURDEN OF PROVING ALL
CLAIMS OF FORCE MAJEURE. FAILURE TO COMPLY BY REASON OF FORCE MAJEURE SHALL NOT
BE CONSTRUED AS A VIOLATION OF THIS CAO.
C.
MGP SHALL NOTIFY KDHE IN WRITING WITHIN
SEVEN DAYS AFTER BECOMING AWARE OF AN EVENT WHICH MGP KNEW, OR SHOULD HAVE
KNOWN, CONSTITUTED FORCE MAJEURE. SUCH NOTICE SHALL ESTIMATE THE ANTICIPATED
LENGTH OF DELAY, ITS CAUSE, MEASURES TO BE TAKEN TO MINIMIZE THE DELAY, AND AN
ESTIMATED TIMETABLE FOR IMPLEMENTATION OF THESE MEASURES. FAILURE TO COMPLY WITH
THE NOTICE PROVISION OF THIS SECTION SHALL CONSTITUTE A WAIVER OF THE MGP RIGHT
TO ASSERT A FORCE MAJEURE CLAIM AND SHALL BE GROUNDS FOR KDHE TO DENY MGP AN
EXTENSION OF TIME.
D.
WITHIN SEVEN DAYS OF THE RECEIPT OF
WRITTEN NOTICE FROM MGP OF A FORCE MAJEURE EVENT, KDHE SHALL NOTIFY MGP OF THE
EXTENT TO WHICH MODIFICATIONS TO THIS CAO ARE NECESSARY. IN THE EVENT THAT KDHE
AND MGP CANNOT AGREE THAT A FORCE MAJEURE EVENT HAS OCCURRED, OR IF THERE IS NO
AGREEMENT ON THE LENGTH OF THE EXTENSION, THE DISPUTE SHALL BE RESOLVED AS SET
FORTH IN A PARAGRAPH NUMBERED 44 DISPUTE RESOLUTION.
E.
ANY MODIFICATIONS TO ANY PROVISION OF
THIS CAO SHALL NOT ALTER THE SCHEDULE FOR PERFORMANCE OR COMPLETION OF OTHER
TASKS REQUIRED BY THIS CAO UNLESS SPECIFICALLY AGREED TO BY THE PARTIES IN
WRITING AND INCORPORATED INTO THIS CAO.
F.
THIS CAO MAY BE AMENDED BY MUTUAL
AGREEMENT OF KDHE AND MGP. SUCH AMENDMENTS SHALL BE IN WRITING, SHALL HAVE AS
THEIR EFFECTIVE DATE THE DATE ON WHICH THEY ARE SIGNED BY BOTH PARTIES AND SHALL
BE INCORPORATED INTO THIS CAO.
DISPUTE RESOLUTION
44.
THE PARTIES RECOGNIZE THAT A DISPUTE MAY
ARISE BETWEEN THEM REGARDING IMPLEMENTATION OF THE ACTION TO BE TAKEN AS HEREIN
SET FORTH OR OTHER TERMS OR PROVISIONS OF THIS CAO.
A.
IF SUCH DISPUTE ARISES, THE PARTIES
WILL ENDEAVOR TO SETTLE IT BY