Common use of Independent Certifier Clause in Contracts

Independent Certifier. 17.9.1 The Project Co shall notify the Trust's Works Adviser and the Independent Certifier when the Project Co (acting reasonably) considers that the Phase 1 Works will be complete in accordance with the Design Documents in 12 months time. Such notification shall trigger the activities of the Independent Certifier pursuant to Clause 17.10.1. 17.9.2 The Project Co shall notify the Trust's Works Adviser when the Project Co (acting reasonably) considers that the Phase 1 Works, the Phase 2 Works for any Beneficial Occupation Area or all of the Phase 2 Works (as the case may be) will be completed in accordance with the Design Documents in six months time. Such notification shall, in each case, trigger the activities of the Independent Certifier pursuant to Clause 17.10.2. 17.9.3 The role of the Independent Certifier shall be to carry out, acting with reasonable skill and care, the various tasks which the Project Co is to procure that it performs pursuant to Clause 17.10. 17.9.4 Subject to Clause 17.9.5, the cost of the employment of the Independent Certifier by the Project Co (including all reimbursable expenses payable in accordance with the Agreement for Appointment of Independent Certifier) shall be paid by the Trust to the Project Co within 10 Working Days of demand by the Project Co to the Trust, such demand to be accompanied by evidence that the invoice date relating to the relevant sum claimed by the Project Co has occurred provided that, nothing in this Clause 17.9.4 shall require the Trust to reimburse any cost to the Project Co which is payable by the Project Co pursuant to Clause 17.9.5. 17.9.5 In respect of the cost of employment of the Independent Certifier, the Project Co shall pay, without any right of reimbursement by the Trust under Clause 17.9.4: (A) any cost which arises as a result of any breach by the Project Co of any provisions of the Agreement for Appointment of Independent Certifier; (B) any amount payable pursuant to paragraph 7.3 of the Second Schedule to the Agreement for Appointment of Independent Certifier; (C) any amount payable pursuant to paragraph 8 of the Second Schedule to the Agreement for Appointment of Independent Certifier, where the relevant suspension pursuant to paragraph 7.1 of the same arises for any reason other than as a result of any Delay Event, Relief Event or Archaeological Delay Event; and (D) any amount payable pursuant to paragraph 9 of the Second Schedule to the Agreement for Appointment of Independent Certifier in respect of any Dispute; (1) where the Dispute is decided entirely in favour of the Trust; or (2) where the Dispute is decided only partly in favour of each Party, to the extent determined pursuant to the Disputes Resolution Procedure. 17.9.6 Where a delay arises during the briefing phase or either certification phase as described in the Second Schedule to the Agreement for the Appointment of Independent Certifier, whether as a result of any Delay Event, Relief Event or Archaeological Delay Event or for any other reason, the Parties shall liaise together in accordance with the Liaison Procedure to consider whether the activities of the Independent Certifier should be suspended and the duration of such suspension, in each case, pursuant to paragraph 7.1 of the Second Schedule to the Agreement for the Appointment of Independent Certifier. If the Parties (acting reasonably) are unable to agree upon any matter relating to the same within five Working Days, the Dispute shall be referred to the Disputes Resolution Procedure. 17.9.7 Without prejudice to their respective obligations pursuant to Clause 17.10, the Parties each undertake to co-operate with the Independent Certifier to ensure that the Independent Certifier is familiar with all necessary aspects of the Project for the purposes of its role as described in Clause 17.9.3. 17.9.8 The Parties agree that the Independent Certifier shall act as an expert and not as an arbitrator. 17.9.9 The Parties shall be bound by the decision of the Independent Certifier unless and until the same shall be overturned or modified by the Disputes Resolution Procedure. 17.9.10 If either Party wishes to challenge any decision of the Independent Certifier it shall refer the matter to the Disputes Resolution Procedure within 10 Working Days of the relevant decision, as to which time shall be of the essence, failing which the Parties shall be bound by the same.

Independent Certifier. 17.9.1 25.1 The Project Co GRANTING AUTHORITY shall notify be assisted by the Trust's Works Adviser technical service of independent verification in monitoring the performance of the CONTRACT AGREEMENT, applying the KEY PERFORMANCE STANDARDS and the Independent Certifier when PAYMENT MECHANISM for calculating the Project Co (acting reasonably) considers that EFFECTIVE MONTHLY PAYMENT, the Phase 1 Works will be complete BONUS ON THE ELECTRICITY BILL, the CAPEX EXPANSION PAYMENT, of indemnities, as well as in accordance with the Design Documents in 12 months time. Such notification shall trigger the activities monitoring of the Independent Certifier pursuant to Clause 17.10.1execution of the SERVICES AND INVESTMENTS SPECIFICATIONS, SOCIOENVIRONMENTAL SPECIFICATIONS and other obligations undertaken by the CONCESSIONAIRE. 17.9.2 25.1.1 The Project Co shall notify INDEPENDENT CERTIFIER, in the Trust's Works Adviser when exercise of its activities and under the Project Co (acting reasonably) considers that the Phase 1 Works, the Phase 2 Works for any Beneficial Occupation Area or all guidance of the Phase 2 Works (as GRANTING AUTHORITY, shall take the case may be) will necessary steps to fulfill its duties, carrying out field surveys and measurements and gathering information from the CONCESSIONAIRE and the GRANTING AUTHORITY, and shall have, for this purpose, access to the entire CONCESSION database. 25.1.2 The CONCESSIONAIRE shall be completed in accordance with responsible for contracting the Design Documents in six months time. Such notification shallINDEPENDENT CERTIFIER and the costs appurtenant to it, in each case, trigger under the activities terms of the Independent Certifier pursuant applicable legislation and the INDEPENDENT CERTIFIER GUIDELINES, including any need for additional inspections to Clause 17.10.2conclude a certain report, opinion and/or approval. 17.9.3 25.1.3 The role INDEPENDENT CERTIFIER shall be a legal entity with a high degree of technical specialization and adequate organization, qualified technical staff, on top of an outstanding ethical reputation in the market and with renowned expertise in assessing quality in the provision of services, thus considering the proven experience under the terms of the Independent Certifier INDEPENDENT CERTIFIER GUIDELINES. 25.1.4 The measurement carried out by the INDEPENDENT CERTIFIER and the reports it produces shall be issued according to carry outthe periodicity and other requirements established in the INDEPENDENT CERTIFIER GUIDELINES, acting with reasonable skill SERVICES AND INVESTMENTS SPECIFICATIONS and care, by the various tasks which the Project Co is to procure that it performs pursuant to Clause 17.10KEY PERFORMANCE STANDARDS (KPI). 17.9.4 Subject to Clause 17.9.5, 25.2 The GRANTING AUTHORITY may request the cost assistance of the employment INDEPENDENT CERTIFIER in any settlement of amounts resulting from the resumption of the Independent Certifier contractual economic-financial balance and the payment of indemnities to the CONCESSIONAIRE. 25.2.1 The INDEPENDENT CERTIFIER shall assist the GRANTING AUTHORITY in situations identified as giving rise to contractual economic-financial imbalance, whereby the INDEPENDENT CERTIFIER has provided a technical service for independent verification. 25.2.2 The assistance provided by the Project Co (including all reimbursable expenses payable in accordance with the Agreement for Appointment of Independent Certifier) INDEPENDENT CERTIFIER shall be paid consummated, if possible, through economic reports, without prejudice to the hiring of other specialized entities by the Trust PARTIES to provide consulting services, as provided for in Subclause 42.4.3. 25.2.3 Costs relating to any additions or changes to the Project Co within 10 Working Days of demand by the Project Co to the Trust, such demand to be accompanied by evidence that the invoice date relating to the relevant sum claimed by the Project Co has occurred provided that, nothing in this Clause 17.9.4 shall require the Trust to reimburse any cost to the Project Co which is payable by the Project Co pursuant to Clause 17.9.5. 17.9.5 In respect scope of the cost of employment of the Independent CertifierINDEPENDENT CERTIFIER, the Project Co shall pay, without any right of reimbursement by the Trust under Clause 17.9.4: (A) any cost which arises as a result of any breach the assistance services to the GRANTING AUTHORITY mentioned in the above Subclause 25.2, shall be advanced by the Project Co CONCESSIONAIRE and compensated concomitantly with the processes of any provisions economic-financial rebalancing of the Agreement for Appointment of Independent Certifier; (B) any amount payable pursuant to paragraph 7.3 of the Second Schedule to the Agreement for Appointment of Independent Certifier; (C) any amount payable pursuant to paragraph 8 of the Second Schedule to the Agreement for Appointment of Independent Certifier, where the relevant suspension pursuant to paragraph 7.1 of the same arises for any reason other than as a result of any Delay Event, Relief Event or Archaeological Delay Event; and (D) any amount payable pursuant to paragraph 9 of the Second Schedule to the Agreement for Appointment of Independent Certifier in respect of any Dispute; (1) where the Dispute is decided entirely in favour of the Trust; or (2) where the Dispute is decided only partly in favour of each Party, to the extent determined pursuant to the Disputes Resolution ProcedureCONTRACT AGREEMENT. 17.9.6 Where a delay arises during the briefing phase or either certification phase as described in the Second Schedule to the Agreement for the Appointment of Independent Certifier, whether as a result of any Delay Event, Relief Event or Archaeological Delay Event or for any other reason, the Parties shall liaise together in accordance with the Liaison Procedure to consider whether the activities of the Independent Certifier should be suspended and the duration of such suspension, in each case, pursuant to paragraph 7.1 of the Second Schedule to the Agreement for the Appointment of Independent Certifier. If the Parties (acting reasonably) are unable to agree upon any matter relating to the same within five Working Days, the Dispute shall be referred to the Disputes Resolution Procedure. 17.9.7 Without prejudice to their respective obligations pursuant to Clause 17.10, the Parties each undertake to co-operate with the Independent Certifier to ensure that the Independent Certifier is familiar with all necessary aspects of the Project for the purposes of its role as described in Clause 17.9.3. 17.9.8 The Parties agree that the Independent Certifier shall act as an expert and not as an arbitrator. 17.9.9 The Parties shall be bound by the decision of the Independent Certifier unless and until the same shall be overturned or modified by the Disputes Resolution Procedure. 17.9.10 If either Party wishes to challenge any decision of the Independent Certifier it shall refer the matter to the Disputes Resolution Procedure within 10 Working Days of the relevant decision, as to which time shall be of the essence, failing which the Parties shall be bound by the same.