Guidance Note - As part of the AD Phase, the Participants will develop the Adjustment Event Guidelines which will identify those acts, events and circumstances which may arise during the performance of the Works under the Agreement and for which the Participants will be entitled to adjustment of any or all of the TOC, the KRAs and the Date for Practical Completion. Except in respect of Adjustment Events, the TOC will be fixed and not subject to alteration or escalation. It is expected that provision will be made in the Risk & Contingency Provisions in the TOC for all other risks and contingencies that may arise in performing the Works under the Agreement. |
(a) The TOC which has been developed by the Participants and approved by the Project Owner in accordance with the Alliance Development Agreement:
(1) is fixed and not subject to alteration or escalation under this Agreement except in accordance with this clause 12; and
(2) is inclusive of all Reimbursable Costs, Corporate Overhead and Profit and Risk & Contingency Provisions.
(b) If the ALT, having regard to the Adjustment Event Guidelines, determines that an Adjustment Event has occurred (including in accordance with clause 13.2(f)):
(1) the Participants must take every reasonable measure available to them to:
(A) mitigate any adverse or prejudicial effects; and/or
(B) optimise any improvement or positive effects, of the acts, events or circumstances giving rise to or contributing to the Adjustment Event; and
(2) the ALT may determine any reasonable adjustment to any or all of the TOC, the KRAs and the Date for Practical Completion which needs to be made and make a recommendation to the Project Owner for its approval (or otherwise) (which recommendation must include all supporting information relating to the recommendation). The Project Owner must make its determination in respect of any recommendation from the ALT under this clause 12(b) within a reasonable time.
(c) The ALT, in determining any reasonable adjustment to any or all of the TOC, the KRAs and the Date for Practical Completion under clause 12(b), must have regard to:
(1) the assumptions adopted by the Participants in developing the Project Proposal (including the TOC and the Adjustment Event Guidelines) and approved by the Project Owner so as to ensure that any adjustment to the TOC, the KRAs or the Date for Practical Completion is Best For Project;
(2) the Project Owner's timing requirements and the Date for Practical Completion being of fundamental importance in respect of the carrying out of the Project; and
(3) any other matters considered relevant by the ALT in making a Best For Project determination.
(d) If the Project Owner, in its absolute discretion, approves the ALT's recommendation under clause 12(b), then the Project Owner will issue a notice to the ALT approving the effect of the Adjustment Event on the TOC, the KRAs and the Date for Practical Completion (as the case may be) and the TOC, the KRAs and the Date for Practical Completion (as the case may be) will be adjusted as recommended by the ALT.
(e) If the Project Owner, in its absolute discretion, does not approve the ALT's recommendation under clause 12(b), the Project Owner will issue a notice to the ALT not approving the effect of the Adjustment Event on the TOC, the KRAs and the Date for Practical Completion (as the case may be) and providing its reasons for not approving the recommendation. The ALT must consider the reasons provided and resubmit its recommendation to the Project Owner for approval (or otherwise).
(f) The NOPs acknowledge and agree that the Project Owner may engage an independent adviser to review and advise on any recommendation made by the ALT to the Project Owner under this clause 12.