Content Headings | Key Issues | Example clauses | Notes and References |
Appointment of independent third parties | Often a project provides for an independent engineer or an independent tester to conduct the projects and to make determinations in relation to the project. The idea is to provide objective determinations in relation to the project, significantly in relation to project completion. The terms of this independent third party's appointment is usually set out in a separate appointment agreement. Alternative 1 deals with the appointment of an independent tester, and Alternative 2 deals with the appointment of an independent engineer. | Alternative 1 Appointment The parties have prior to the date of this Agreement, in compliance with all Law relating to procurement which is applicable to either party, appointed a suitably qualified and experienced consultant to act as the Independent Tester for the purposes of this Agreement upon the terms of the Independent Tester Contract. Changes to terms of appointment Neither the Authority nor Concessionaire shall without the other's prior written approval (not to be unreasonably withheld or delayed): (a) terminate, repudiate or discharge the Independent Tester Contract or treat the same as having been terminated, repudiated or otherwise discharged; (b) waive, settle, compromise or otherwise prejudice any rights or claims which the other may from time to time have against the Independent Tester; or (c) vary the terms of the Independent Tester Contract or the service performed or to be performed by the Independent Tester. The parties shall comply with and fulfil their respective duties and obligations arising under or in connection with the Independent Tester Contract. Co-Operation The parties agree to co-operate with each other generally in relation to all matters within the scope of or in connection with the Independent Tester Contract. All instructions and representations issued or made by either of the parties to the Independent Tester shall be simultaneously copied to the other and both parties shall be entitled to attend all inspections undertaken by or meetings involving the Independent Tester. Replacement In the event of the Independent Tester's appointment being terminated otherwise than for full performance, the parties shall liaise and co-operate with each other in order to appoint, in accordance with this clause, a replacement consultant to act as the Independent Tester as soon as reasonably practicable. The identity of any such replacement shall be as agreed by the parties and the terms of his appointment shall, unless otherwise agreed, be as set out in the Independent Tester Contract. In the event the parties fail to agree the identity and/or terms of a replacement Independent Tester in accordance with clause [reference], within ten (10) Business Days of the original Independent Tester's appointment being terminated, then such disagreement shall be referred for resolution in accordance with Schedule [Dispute Resolution Procedure]. | Alternative 1 adapted from Department of Health (UK), Standard Form Project Agreement Index reference A1 Folder 1.
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Alternative 2 Procedure for Appointment The Authority shall invite proposals from the interest persons to act as Independent Engineer on this Project. Within 15 days of receipt of the proposals, the Authority and the Concessionaire shall carry out a joint assessment and agree a panel of 3 (three) persons, together with the Concessionaire's consent for appointment by the Authority of one of the Persons named in such panel as the Independent Engineer. The Authority shall within 30 days of agreement of the panel, appoint one of the Persons included in the panel as the Independent Engineer and communicate the same to the Concessionaire and the Person so appointed. The scope of work of the Independent Engineer shall include that set out in Schedule [reference]. The initial term of the Independent Engineer shall extend upto 1 year after COD, which term may be renewed /extended for a period not exceeding 6 months at a time and 2 years in aggregate. Payments to the Independent Engineer All fees, costs, charges and expenses payable to the Independent Engineer in accordance with the terms of its appointment (collectively "the Remuneration") shall be shared and borne by the Parties equally. The Concessionaire shall within 7 days of receipt of demand from the Authority pay /reimburse to the Authority from time to time its share of the Remuneration. Replacement of the Independent Engineer The Parties may replace the Independent Engineer for the time being in any of the following circumstances : (a) If the Authority or the Concessionaire has reason to believe that the Independent Engineer has not discharged its duties in a fair, appropriate and diligent manner; (b) if the Parties decide not to renew the term of the Independent Engineer; (c) if, in accordance with the terms of its appointment the Independent Engineer resigns or notifies its intention not to continue as the Independent Engineer; (d) any other circumstance which in the opinion of the Parties warrants replacement of the Independent Engineer. Subject to the attendant circumstances and unless the Parties otherwise agree, the procedure laid down in [ref] shall as far as possible be adhered to for replacement of the Independent Engineer, and the replacement shall be so effected as to maintain continuity in the supervision and monitoring of the Project Requirements. The Independent Engineer appointed pursuant to clause [ref] shall be for an initial term not exceeding 2 years which term may be extended /renewed for a further period of not exceeding six months at a time and 2 years in aggregate. Eligibility for Re-appointment No person shall be eligible to be re-appointed as the Independent Engineer unless a period of not less than two years has lapsed since the expiry of his previous tenure as the Independent Engineer. | Alternative 2 adapted from Concession Agreement for Colombo Kathunayake Expressway Project (note confidential), index reference A2, folder 1. |