Content Headings | Key Issues | Example clauses | Notes and References |
Pre-completion | Alternative 1 envisages the following sequence of events: • Final Commissioning Programme ("FCP") agreed • Concessionaire commissioning needed in order to achieve Practical Completion • The Authority to carry out its commissioning activities scheduled to take place prior to completion (if any) • Concessionaire to carry out completion tests in accordance with FCP • Visual inspection by The Authority and Independent Tester • Certificate of Practical Completion and snagging list issued • Commencement of appropriate percentage of the unitary charge • Concessionaire post completion commissioning activities in accordance with FCP • The Authority post completion commissioning (including, for example, installation of its equipment and decant to new site) in accordance with FCP. | Alternative 1 Final Commissioning Programme Not less than [number] months before the Completion Date the Authority shall provide Concessionaire with a draft of the Final Commissioning Programme as jointly developed by the Authority and Concessionaire in accordance with the provisions of Clauses 0 and 0. Concessionaire shall provide the Authority with comments on the draft Final Commissioning Programme submitted to it no later than [number] months before the Completion Date. The parties shall, within [number] Business Days of receipt by the Authority of Concessionaire's comments agree the terms of the Final Commissioning Programme provided that the Authority may by prior notice to Concessionaire change the scope and time of the Authority's Commissioning and reimburse Concessionaire its reasonable costs incurred as a result of such change in scope or time. If the parties are unable to agree the Final Commissioning Programme or the change in scope or time of the Authority's Commissioning [number] months before the Completion Date the matter shall be referred for determination in accordance with Schedule [Dispute Resolution Procedure]. [The final Commissioning Programme relating to the relevant Phase shall be prepared in accordance with the requirements of the Completion Process. Before the date specified by the Completion Process for each Phase the Authority shall provide Concessionaire with a draft of the Final Commissioning Programme relating to the relevant Phase as jointly developed by the Authority and Concessionaire in accordance with the provisions of Clauses [reference]. Concessionaire shall provide the Authority with comments on the draft Final Commissioning Programme for each relevant Phase submitted to it within the period stated in the Completion Process. The parties shall, within [number] Business Days of receipt by the Authority of Concessionaire's comments agree the terms of the Final Commissioning Programme for the relevant Phase provided that the Authority may by prior notice to Concessionaire change the scope and time of the Authority's Commissioning and reimburse Concessionaire its reasonable costs incurred as a result of such change in scope or time. If the parties are unable to agree the Final Commissioning Programme for each relevant Phase or the change in scope or time of the Authority's Commissioning by the date specified in the Completion Process for the relevant Phase the matter shall be referred for determination in accordance with Schedule [Dispute Resolution Procedure].] The Final Commissioning Programme [for each Phase] shall be in accordance with the Outline Commissioning Programme and shall impose no greater or more onerous obligations on the Authority than those set out in the Outline Commissioning Programme (unless otherwise agreed by the Authority in its absolute discretion). The Final Commissioning Programme shall then replace the Outline Commissioning Programme [as it relates to that Phase]. The Final Commissioning Programme shall describe the steps necessary, the party responsible for taking each of such steps and the timing and sequence of each of such steps to ensure [insofar as relevant for each Phase of the Works]: (a) that Concessionaire's Pre-Completion Commissioning and the Authority's Commissioning will not delay the Actual Completion Date [Phase Actual Completion Date] from occurring by the Completion Date [Phase Completion Date]; and (b) that Concessionaire's Post Completion Commissioning and the Authority's Post Completion Commissioning is completed by the Commissioning End Date. The parties shall procure that the steps that they are responsible for carrying out and completing pursuant to the Final Commissioning Programme include, [in the case of Concessionaire's activities, the activities described at paragraph [ref] of the Authority's Construction Requirements]. [In accordance with the Completion Process] Concessionaire shall notify the Independent Tester and the Authority's Representative of the date when Concessionaire (acting reasonably) considers that [any Phase of] the Works will be complete in accordance with the Authority's Construction Requirements [the Completion Criteria] and this Agreement not less than [number] months prior to such anticipated completion. Such notification shall trigger the activities of the Independent Tester under this clause. The parties each undertake to co-operate with the Independent Tester to ensure that the Independent Tester is familiar with all necessary aspects of the Project for the purposes of its role as described in this clause. Commissioning prior to Completion Date The Concessionaire shall: (a) undertake the Concessionaire's Pre-Completion Commissioning in accordance with the Final Commissioning Programme; and (b) permit the Authority to undertake the Authority's Commissioning including [permitting specialist contractors engaged by the Authority to deliver and install equipment] on such dates as agreed between the Authority and Concessionaire, in accordance with the Final Commissioning Programme. The relevant party shall insofar as relevant for each Phase: (a) undertake its Post Completion Commissioning in accordance with the Final Commissioning Programme; and (b) permit the other party to undertake its Post Completion Commissioning including [permitting specialist contractors engaged by the Authority to deliver and install equipment] on dates agreed between the Authority and Concessionaire, within the period defined in the Completion Process and in accordance with the Final Commissioning Programme. The Concessionaire shall give written notice to the Independent Tester and the Authority of the commencement of Concessionaire's Pre-Completion Commissioning and shall ensure that the Independent Tester and the Authority's Representative are invited to witness all of, and are provided with all information they may reasonably require in relation to, Concessionaire's Pre-Completion Commissioning and that the Independent Tester is invited to comment on Concessionaire's Pre-Completion Commissioning. The Concessionaire shall (or shall procure that the Contractor shall) give the Authority access to the Facilities at such times as may be set out in the Final Commissioning Programme to enable the Authority to undertake the Authority's Commissioning [within the period defined in the Completion Process and] in accordance with the Final Commissioning Programme for the period prior to completion. Pre-Completion inspection The Concessionaire shall give the Independent Tester and the Authority's Representative not less than [number] Business Days' notice and not more than [number] Business Days' notice [the appropriate notice period for that Phase as set out in the Completion Process] of the date upon which Concessionaire considers that [the relevant Phase of] the Works will be complete and the tests on completion [required for the relevant Phase] to be performed in accordance with the Final Commissioning Programme will be carried out. [Following receipt of the notice specified in this Clause], the Authority's Representative and the Independent Tester shall be entitled to inspect [the relevant Phase of] the Works on the date or dates reasonably specified by Concessionaire in accordance with this Clause, and to attend any of the tests on completion [undertake inspections of any Phase in accordance with the periods specified in the Completion Process]. Concessionaire shall, if so requested, accompany the Authority's Representative and the Independent Tester on any such inspection. Pre-Completion matters The parties shall procure that the Independent Tester, within [number] Business Days of any inspection made pursuant to Clause [reference], notifies Concessionaire and the Authority of any outstanding matters (including, without limitation, the repetition of any of the tests on completion which are required to be carried out and passed in accordance with the Final Commissioning Programme) which are required to be attended to before [the relevant Phase of] the Works can be considered to be complete in accordance with the Authority's Construction Requirements and Concessionaire's Proposals [Completion Criteria]. Concessionaire shall attend to such matters and shall, if necessary, give the Independent Tester further notices in accordance with Clause [ref] (but dealing only with matters raised in the notification under this Clause [reference]) so that the procedures in Clause [reference] and this Clause [reference] are repeated as often as may be necessary to ensure that all outstanding matters in relation to the Works are attended to | Alternative 1 adapted from Department of Health (UK), Standard Form Project Agreement Index reference A1 Folder 1. |
Alternative 2 The Concessionaire is required to commence Construction Works only on or after the Commencement Date or the Financial Close whichever is later. Nothing contained in the preceding clause shall be deemed to preclude the Concessionaire from commencing Construction Works prior to the Commencement Date, provided the Concessionaire shall do so entirely at its own cost and risk, and shall not be entitled to seek any compensation therefore or in respect thereof in the event the Agreement is terminated prior to Financial Close for any reason whatsoever. Provided however, no Construction Works shall begin unless the Independent Engineer is in place and has assumed charge. The Concessionaire shall immediately upon commencement of Construction Works notify the Authority of the same. The Concessionaire shall adhere to the Construction Requirements and achieve COD on or before the Scheduled Project Completion Date. The Concessionaire may undertake Construction Works by itself or through a Contractor possessing requisite technical, financial and managerial expertise/capability; but in either case, the Concessionaire shall remain solely responsible to meet the Construction Requirements. The Concessionaire shall, before commencement of Construction Works; (a) have requisite organisation and designate and appoint suitable officers/ representatives as it may deem appropriate to supervise the Project, to deal with the Independent Engineer/the Authority and to be responsible for all necessary exchange of information required pursuant to this Agreement; (b) construct, provide and maintain a reasonably furnished site office accommodation for the Independent Engineer, at the Project Site. For the purposes of determining that Construction Works are being undertaken in accordance with the Project Requirements, the Concessionaire shall with due diligence carry out all necessary and periodical Tests in accordance with the instructions and under the supervision of the Independent Engineer and the Construction Requirements. The Concessionaire shall maintain proper record of such Tests and the remedial measures taken to cure the defects or deficiencies, if any, indicated by the Test results. All Tests shall be conducted in accordance with Construction Requirements. If the Tests are successful and all parts of Project Facility can be safely and reliably opened for commercial operation, the Independent Engineer shall issue Completion Certificate. Provided, notwithstanding that certain works or things forming part of Construction Works are not complete, if following Tests the Independent Engineer determines that the Project Facility can be safely and reliably opened for operations, the Independent Engineer may issue Provisional Certificate to the Concessionaire. The Provisional Certificate shall have appended thereto a list of outstanding items signed jointly by the Independent Engineer and the Concessionaire ("Punch List"). All Punch List items shall be completed by the Concessionaire within such time as may be determined by the Independent Engineer, not exceeding 90 (ninety) days of the date of issue of the Provisional Certificate. Upon satisfactory completion of all Punch List items, the Independent Engineer, shall promptly and in any case within 15 days thereof, issue Completion Certificate. If the Concessionaire fails to complete the Punch List items within the said period of 90 days, the Authority may, without prejudice to any other rights or remedy available to it under this Agreement, have such items completed at the risk and costs of the Concessionaire. The cost incurred by the Authority in completing the Punch List items, as certified by the Independent Engineer, shall be reimbursed by the Concessionaire to the Authority within 7 days from the date of receipt of a claim in respect thereof from the Authority. Thereupon, the Independent Engineer may issue Completion Certificate. The Independent Engineer, may, by written notice, require the Concessionaire to suspend forthwith the whole or any part of the Construction Works if in its reasonable opinion the same is being carried on in a manner that is not in conformity with the Construction Requirements. | Alternative 2 adapted from Concession Agreement for Colombo Kathunayake Expressway Project (note confidential), index reference A2, folder 1. |