Five Year Plan. (a) The Concessionaire shall submit to the University a proposed Initial Five-Year Plan on or before the first December 30 following the Closing Date and shall thereafter submit to the University a proposed Five-Year Plan at least 180 Days prior to the end of each Fiscal Year during the Term. Each proposed Five-Year Plan shall include the Capital Improvements, ECMs and Material Changes (and shall identify whether an item requested for Approval is a Capital Improvement, ECM or Material Change or a combination thereof) that the Concessionaire proposes to make in each Fiscal Year in such proposed Five-Year Plan as well as anticipated O&M Costs, delineated between Capped O&M Costs and Uncapped O&M Costs, and anticipated Supply Costs for each such Fiscal Year. The initial Five-Year Plan can include, and the University will consider in accordance with Section 4.3, proposed Capital Improvements and Material Changes to the Utility System to address any conditions of the Utility System existing prior to the Closing Date. Each proposed Five-Year Plan shall be submitted in a format reasonably acceptable to the University as of the date of submission. (b) The University shall convene the EAC after receipt of the proposed Five-Year Plan. The EAC shall review and provide comments to the Concessionaire on such proposed Five-Year Plan within 30 Days after receipt by the University thereof. The EAC’s comments on such proposed Five-Year Plan shall not be binding on the University. The Concessionaire shall incorporate those comments from the EAC that the Concessionaire elects to incorporate and shall then submit its proposed Five-Year Plan to the University at least 120 Days prior to the end of the Fiscal Year (or, in the case of the proposed Initial Five-Year Plan, as soon as reasonably practicable after receipt of the EAC’s comments). (c) The University shall review and provide comments to the Concessionaire on the proposed Five-Year Plan, provided that to the extent pertaining to proposed Capital Improvements, ECMs or Material Changes relating to the first full Fiscal Year in the proposed Five-Year Plan, such review and comments shall be conducted and provided in accordance with Section 4.3(c), and provided further that, subject to Section 7.3(d), if the University shall have previously Approved any such Capital Improvement, ECM or Material Change included in the proposed Five-Year Plan, the University shall not have the right to modify or rescind such prior Approval to the extent of such prior Approval. The Concessionaire shall promptly incorporate and use the University’s comments on the proposed Five-Year Plan to prepare a revised version thereof and submit such revised version to the University. This process shall continue until the University Approves the proposed Five-Year Plan. (d) The proposed Five-Year Plan Approved by the University shall become the Approved Five-Year Plan as of the commencement of the first Fiscal Year in such proposed Five-Year Plan (or, in the case of a proposed Initial Five-Year Plan, as of the date of the University’s Approval); provided, however, that no portion of an Approved Five-Year Plan related to the 2nd through 5th full Fiscal Years therein shall be deemed Approved by the University, except to the extent that a Capital Improvement, ECM or Material Change is scheduled pursuant to such Approved Five-Year Plan to be started in the first full Fiscal Year and completed in the 2nd through 5th full Fiscal Years therein. For the avoidance of doubt, the Approval of a Five-Year Plan that includes a Capital Improvement, ECM or Material Change that is not scheduled to be commenced until the 2nd Fiscal Year therein at the earliest shall not be deemed an Approval of such Capital Improvement, ECM or Material for purposes of Article 4. • If the Concessionaire does not accommodate or otherwise resolve any comment provided by the University pursuant to Section 7.3(c), the Concessionaire shall deliver to the University, within 10 Days after receipt of the University’s comments, a written explanation as to why accommodation or other resolution of such comment would not allow the Concessionaire to meet the requirements of Section 3.2(a)(ii). The explanation shall include the facts, analyses and reasons that support the conclusion regarding such comment. Any dispute between the Concessionaire and the University over such comment shall be resolved pursuant to the procedures set forth in Article 18. • If a proposed Five-Year Plan or a portion thereof is not Approved by the commencement of the first Fiscal Year in such proposed Five- Year Plan, the Approved Five-Year Plan or relevant portion thereof shall continue in effect until a new proposed Five-Year Plan is Approved, provided that in the case of the proposed Initial Five-Year Plan, no Approved Five-Year Plan shall be in effect until the proposed Initial Five-Year Plan is Approved, and provided further that nothing in this Section 7.3 shall permit the Concessionaire to make a Capital Improvement, ECM or Material Change except if it is Approved in accordance with Section 4.3(c). Until the initial Five-Year Plan is Approved following the Closing Date, the Concessionaire shall operate the Utility System in accordance with this Agreement and otherwise in substantially the same manner it had been operated immediately prior to Closing provided that nothing in this Section 7.3 shall permit the Concessionaire to make a Capital Improvement, ECM or Material Change except if it is Approved in accordance with Section 4.3(c).
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Sources: Concession Agreement
Five Year Plan. (a) The Concessionaire shall submit to the University a proposed Initial Five-Year Plan on or before the first December 30 following the Closing Date and shall thereafter submit to the University a proposed Five-Year Plan at least 180 Days prior to the end of each Fiscal Year during the Term. Each proposed Five-Year Plan shall include the Capital Improvements, ECMs and Material Changes (and shall identify whether an item requested for Approval is a Capital Improvement, ECM or Material Change or a combination thereof) that the Concessionaire proposes to make in each Fiscal Year in such proposed Five-Year Plan as well as anticipated O&M Costs, delineated between Capped O&M Costs and Uncapped O&M Costs, and anticipated Supply Costs for each such Fiscal Year. The initial Five-Year Plan can include, and the University will consider in accordance with Section 4.3, proposed Capital Improvements and Material Changes to the Utility System to address any conditions of the Utility System existing prior to the Closing Date. Each proposed Five-Year Plan shall be submitted in a format reasonably acceptable to the University as of the date of submission.
(b) The University shall convene the EAC after receipt of the proposed Five-Year Plan. The EAC shall review and provide comments to the Concessionaire on such proposed Five-Year Plan within 30 Days after receipt by the University thereof. The EAC’s comments on such proposed Five-Year Plan shall not be binding on the University. The Concessionaire shall incorporate those comments from the EAC that the Concessionaire elects to incorporate and shall then submit its proposed Five-Year Plan to the University at least 120 Days prior to the end of the Fiscal Year (or, in the case of the proposed Initial Five-Year Plan, as soon as reasonably practicable after receipt of the EAC’s comments).
(c) The University shall review and provide comments to the Concessionaire on the proposed Five-Year Plan, provided that to the extent pertaining to proposed Capital Improvements, ECMs or Material Changes relating to the first full Fiscal Year in the proposed Five-Year Plan, such review and comments shall be conducted and provided in accordance with Section 4.3(c), and provided further that, subject to Section 7.3(d), if the University shall have previously Approved any such Capital Improvement, ECM or Material Change included in the proposed Five-Year Plan, the University shall not have the right to modify or rescind such prior Approval to the extent of such prior Approval. The Concessionaire shall promptly incorporate and use the University’s comments on the proposed Five-Year Plan to prepare a revised version thereof and submit such revised version to the University. This process shall continue until the University Approves the proposed Five-Year Plan.
(d) The proposed Five-Year Plan Approved by the University shall become the Approved Five-Year Plan as of the commencement of the first Fiscal Year in such proposed Five-Year Plan (or, in the case of a proposed Initial Five-Year Plan, as of the date of the University’s Approval); provided, however, that no portion of an Approved Five-Year Plan related to the 2nd through 5th full Fiscal Years therein shall be deemed Approved by the University, except to the extent that a Capital Improvement, ECM or Material Change is scheduled pursuant to such Approved Five-Year Plan to be started in the first full Fiscal Year and completed in the 2nd through 5th full Fiscal Years therein. For the avoidance of doubt, the Approval of a Five-Year Plan that includes a Capital Improvement, ECM or Material Change that is not scheduled to be commenced until the 2nd Fiscal Year therein at the earliest shall not be deemed an Approval of such Capital Improvement, ECM or Material for purposes of Article 4. • .
(e) If the Concessionaire does not accommodate or otherwise resolve any comment provided by the University pursuant to Section 7.3(c), the Concessionaire shall deliver to the University, within 10 Days after receipt of the University’s comments, a written explanation as to why accommodation or other resolution of such comment would not allow the Concessionaire to meet the requirements of Section 3.2(a)(ii). The explanation shall include the facts, analyses and reasons that support the conclusion regarding such comment. Any dispute between the Concessionaire and the University over such comment shall be resolved pursuant to the procedures set forth in Article 18. • .
(f) If a proposed Five-Year Plan or a portion thereof is not Approved by the commencement of the first Fiscal Year in such proposed Five- Five-Year Plan, the Approved Five-Year Plan or relevant portion thereof shall continue in effect until a new proposed Five-Year Plan is Approved, provided that in the case of the proposed Initial Five-Year Plan, no Approved Five-Year Plan shall be in effect until the proposed Initial Five-Year Plan is Approved, and provided further that nothing in this Section 7.3 shall permit the Concessionaire to make a Capital Improvement, ECM or Material Change except if it is Approved in accordance with Section 4.3(c). Until the initial Five-Year Plan is Approved following the Closing Date, the Concessionaire shall operate the Utility System in accordance with this Agreement and otherwise in substantially the same manner it had been operated immediately prior to Closing provided that nothing in this Section 7.3 shall permit the Concessionaire to make a Capital Improvement, ECM or Material Change except if it is Approved in accordance with Section 4.3(c).
(g) For the avoidance of doubt, the Concessionaire’s right to receive the Utility Fee, subject to the limitations contained herein and in Schedule 5, shall not be modified or superseded by the Approved Five-Year Plan.
(h) Except as otherwise provided in Section 7.3(c), the contents of any Approved Five-Year Plan shall not be binding on any future Five-Year Plan.
(i) Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that all payments to the Operator pursuant to any agreement between the Concessionaire and the Operator to operate the Utility System that have been previously Approved by the University on or prior to the Closing Date, shall be deemed Approved and shall require no further Approval for any Five-Year Plan, provided that such payments do not materially differ from the payments or payment mechanics that were Approved by the University in its Approval of the Operator or otherwise.
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