12.1 If an Unavailability Event occurs Project Co may offer the Board Temporary Alternative Accommodation by written notice to the Board within 5 Business Days from the commencement of the relevant Event.
12.2 The Temporary Alternative Accommodation shall:-
12.2.1 comply with:
(a) the Accessibility Condition;
(b) the Safety Condition;
(c) the Use Condition;
(d) the Prescribed Health Function Condition;
(e) the Prescribed Operational Function Condition;
applicable to any Functional Part which is affected by the relevant Unavailability Event for which Temporary Alternative Accommodation is offered;
12.2.2 be a temporary alternative having regard to the facts and the circumstances in existence;
12.2.3 be upon terms which are not materially different from the terms upon which the Board occupied the affected Functional Part;
12.2.4 be accommodation for which the Board is not already paying within the Annual Service Payment or other terms of this Agreement;
12.2.5 be supplied with the Services to the standards set out in the Service Level Specifications which Project Co would under normal circumstances be providing within the Unavailable Functional Part;
12.2.6 not involve the Board incurring any additional cost or charges in respect of the Temporary Alternative Accommodation including, without limitation, the reasonable costs of any relocation to and from the Temporary Alternative Accommodation which shall be borne by Project Co; and
12.2.7 be in reasonable proximity to the Facilities, shall be reasonably accessible by public and private transport and shall have adequate parking facilities.
12.3 The written notice sent by Project Co to the Board pursuant to paragraph 12.1 above shall:-
12.3.1 describe the Temporary Alternative Accommodation;
12.3.2 invite the Board to inspect the Temporary Alternative Accommodation and shall give the Board reasonable notice of a time and a date when it may do so in accordance with paragraph 12.4 below;
12.3.3 set out its proposals regarding the timing and co-ordination of relocation to the Temporary Alternative Accommodation;
12.3.4 specify the date (agreed by the Board before the submission of the written notice) by which Project Co reasonably expects the Board to be able to relocate back to the relevant Functional Part (the "Return Date"); and
12.3.5 describe the terms upon which the Board shall be entitled to occupy such Temporary Alternative Accommodation including the proposed division of such accommodation into Functional Units and Functional Areas and the weighting to be attributed to them for the purposes of the operation of the Payment Mechanism.
12.4 If it requires to inspect the Temporary Alternative Accommodation the Board shall do so within 48 hours of receipt of the notice referred to in paragraph 12.1 above. The Board shall notify Project Co in writing of its acceptance or refusal of the proposed Temporary Alternative Accommodation within 24 hours of its inspection of the same or, if the Board has elected not to carry out an inspection, within 48 hours of receipt of the notice referred to in paragraph 12.1 above. The Board shall act reasonably when deciding to accept or refuse any proposed Temporary Alternative Accommodation.
12.5 If the Board accepts the offer of Temporary Alternative Accommodation then, without affecting the Board's remedial rights under Clause 29 of this Agreement, the Board shall not be entitled to vacate the Temporary Alternative Accommodation until the earlier of the Return Date and the date on which the Board is entitled and able to return to and use the Functional Part in accordance with the agreed programme for relocation referred to in paragraph 12.9 below.
12.6 For the avoidance of doubt, the Board's rights under Clause 29 (Monitoring of Performance) of this Agreement shall not be affected by the acceptance by the Board of the Temporary Alternative Accommodation.
12.7 If the Board accepts Project Co's offer of Temporary Alternative Accommodation, no further Deductions shall be made or Service Failure Points awarded in respect of the Functional Part vacated by the Board while the Temporary Alternative Accommodation is being used by the Board.
12.8 The Board shall be entitled to award Service Failure Points and make Deductions in respect of any Performance Failure or Unavailability Event which occurs in the Temporary Alternative Accommodation as if the Temporary Alternative Accommodation was the Functional Part which it replaced and any Deduction in respect of an Unavailability Event shall be calculated using the weighting attributed by the Board pursuant to paragraph 12.3.5 of this Section C.
12.9 When Project Co has completed the required works to enable the Board to return to the Functional Part the Board Representative shall confirm that the Availability Conditions for the Functional Part are met and the Board Representative and Project Co shall agree a relocation programme to return to the Functional Part [and any necessary Re-Commissioning period].
12.10 Where the Board has accepted the proposed Temporary Alternative Accommodation pursuant to paragraph 12.4, in the event that Project Co fails to complete the works to enable the Board to return to the relevant Functional Part on the Return Date the Board may, in its absolute discretion, vacate the Temporary Alternative Accommodation at any time after the Return Date or remain in occupation. In such circumstances:
12.10.1 where the Board, in its discretion, remains in occupation of the Temporary Alternative Accommodation following the Return Date the Temporary Alternative Accommodation shall be deemed to be Unavailable with effect from the Return Date and the Board shall levy 50% of the Deduction which would have been levied in respect of that Unavailability Event for each period of three (3) consecutive Sessions during which the Board occupies the Temporary Alternative Accommodation thereafter until the date on which the Unavailability Event referred to in paragraph 12.2.1 above has been rectified and the Board is able to resume its use of the Functional Part;
12.10.2 where the Board, in its discretion, vacates the Temporary Alternative Accommodation following the Return Date, the Temporary Alternative Accommodation shall be deemed to be Unavailable on each period of three (3) consecutive Sessions during which the Board is not in occupation of the Temporary Alternative Accommodation until the date on which the Unavailability Event referred to in paragraph 12.2.1 above has been rectified and the Board is able to resume its use of the Functional Part.
12.11 The Board shall specify a date (the "Long Stop Return Date"), being a date no earlier than the Return Date, by which the Rectification shall be completed and if Project Co fails to complete the Rectification of the Functional Part for which the Temporary Alternative Accommodation is a replacement by the Long-Stop Return Date the following shall apply:
12.11.1 the Board may (without prejudice to its rights under Clause 44 (Project Co Events of Default) or any other express rights of the Board under this Agreement) take such steps as it considers to be appropriate (either itself or by engaging others to take such steps) to restore any Functional Part for which the Temporary Alternative Accommodation is a replacement to a condition which satisfies in all respects the requirements of the Service Level Specifications; and
12.11.2 Project Co shall reimburse the Board for all reasonable costs, losses, expenses or damages incurred by the Board in relation to taking the steps, or engaging others to take the steps, referred to in paragraph 12.11.1 above and the Board shall be entitled to deduct any such amount from any amounts payable to Project Co under the provisions of this Agreement.