(a) (Notice by Project Co): When Project Co considers that Commercial Acceptance has been achieved, Project Co must issue a notice in the form required by the Schedule of Certificates and Notices to the State and the Independent Reviewer which:
(i) states that it considers that Commercial Acceptance has been achieved;
(ii) lists all Returned Assets and states that Returned Works Acceptance has been achieved in respect of all Returned Assets (other than any Returned Works Outstanding Items or Remaining Works);
(iii) asks the State to issue a Certificate of Commercial Acceptance;
(iv) includes any then current Collated Returned Works Outstanding Items List;
(v) [Not Used]; and
(vi) includes the then current Remaining Works Schedule.
(b) (Remaining Works): Subject to clause 24.3(d), at any time prior to the Independent Reviewer issuing a notice under clause 24.3(j), the State and Project Co may agree or, subject to clause 24.3(c), the Independent Reviewer may determine that any Defect, work, act, matter, state of affairs or thing that is required in accordance with this Deed to have been performed, achieved, rectified, provided or completed by Project Co to achieve Commercial Acceptance, does not need to be so performed, achieved, rectified, provided or completed by Project Co to achieve Commercial Acceptance, in which case such Defect, work, act, matter, state of affairs or thing will be deemed to be Remaining Works.
(c) (Minor Defects): The Independent Reviewer may only make a determination under clause 24.3(b) if the relevant Defect, act, matter, state of affairs or thing is a Minor Defect.
(d) (Returned Works): Without limiting the parties' rights and obligations:
(i) under clause 24.4 in respect of Returned Works Outstanding Items; and
(ii) in respect of Returned Assets that are listed in the Remaining Works Schedule at the date of this Deed,
the parties acknowledge and agree that any Defect, work, act, matter, state of affairs or thing in respect of any Returned Works, that is required, in accordance with this Deed, to have been performed, achieved, rectified, provided or completed by Project Co by Commercial Acceptance must not be included in the Remaining Works Schedule.
(e) (Update Remaining Works Schedule): If the State and Project Co make any agreement or the Independent Reviewer makes any determination in accordance with clause 24.3(b), Project Co must update the Remaining Works Schedule to reflect the Remaining Works so agreed or determined and provide it to the State and the Independent Reviewer for review in accordance with the Review Procedures.
(f) (Notice by State): Notwithstanding that Project Co may not have issued a notice under clauses 24.3(a) or 24.3(n)(ii), if the State considers that Commercial Acceptance has been achieved, the State may:
(i) notify Project Co and the Independent Reviewer of its opinion; and
(ii) ask the Independent Reviewer to issue a Certificate of Commercial Acceptance.
(g) (Project Co to provide lists): If the State issues a notice to Project Co and the Independent Reviewer in accordance with clause 24.3(f), Project Co must, within 3 Business Days of receiving that notice from the State, provide to the State and the Independent Reviewer any then current:
(i) Collated Returned Works Outstanding Items List; and
(ii) Remaining Works Schedule.
(h) (Independent Reviewer to make determination): As soon as reasonably practicable and, in any event, within 10 Business Days after Project Co issues a notice under clauses 24.3(a) or 24.3(n)(ii), or the State issues a notice under clause 24.3(f), the Independent Reviewer must determine whether Commercial Acceptance has been achieved.
(i) (State and Project Co right to agree Commercial Acceptance): Whether or not the Independent Reviewer considers that Commercial Acceptance has been achieved, the State and Project Co may agree to require the Independent Reviewer to issue a Certificate of Commercial Acceptance at any time.
(j) (Independent Reviewer determines Commercial Acceptance is achieved): If the Independent Reviewer determines under clause 24.3(h) that Commercial Acceptance has been achieved, the Independent Reviewer must issue a Certificate of Commercial Acceptance to the State and Project Co:
(i) certifying that Commercial Acceptance has been achieved;
(ii) stating the Date of Commercial Acceptance; [Note: For roads projects, the Date of Commercial Acceptance must be the date of the certificate but, where not a road project, the Date of Commercial Acceptance may be able to be prior to the date of the Certificate of Commercial Acceptance. Consider on a Project specific basis having regard to relevant regulatory framework.]
(iii) attaching the then current Remaining Works Schedule; and
(iv) attaching the then current Collated Returned Works Outstanding Items List.
(k) (Program): Within 5 Business Days after the State issues any Certificate of Commercial Acceptance, Project Co must submit to the State and the Independent Reviewer, for review in accordance with the Review Procedures, a program for the rectification or completion of the Remaining Works in the Remaining Works Schedule, that ensures that the Remaining Works are rectified or completed by the Date for Final Acceptance.
(l) (Completion Remaining Works): Without limiting the State's rights under clause 27.6, Project Co must rectify or complete all Remaining Works in the Remaining Works Schedule in accordance with the program referred to in clause 24.3(k) and otherwise by the Date for Final Acceptance.
(m) (Performance Failures): Provided they are rectified or completed in accordance with clause 24.3(l), the Remaining Works, while they are being rectified or completed, will not of themselves be Performance Failures, but nothing in this clause 24.3 will relieve Project Co of its obligations and liabilities under this Deed to the extent that any such Remaining Works give rise to a Performance Failure.
(n) (Independent Reviewer determines Commercial Acceptance is not achieved): If the Independent Reviewer determines under clause 24.3(h) that Commercial Acceptance has not been achieved:
(i) the Independent Reviewer must issue a notice to the State and Project Co:
A. listing the work remaining to be undertaken by Project Co to achieve Commercial Acceptance; or
B. stating that Commercial Acceptance is so far from being achieved that it is not practicable to provide a list of the type referred to in clause 24.3(n)(i)A,
after which Project Co must continue to expeditiously and diligently progress the Development Activities to achieve Commercial Acceptance;
(ii) Project Co must give notice to the State and the Independent Reviewer in accordance with clause 24.3(a) when the work listed in a notice issued by the Independent Reviewer under clause 24.3(n)(i)A has been completed or, if clause 24.3(n)(i)B applies, when Project Co is otherwise of the view that Commercial Acceptance has been achieved; and
(iii) clauses 24.3(b) to 24.3(n) will apply in connection with Project Co's notice under clause 24.3(n)(ii) in the same way as if it was the original notice given under clause 24.3(a).
(o) (No restriction on Independent Reviewer): The Independent Reviewer, in making its determination as to whether Commercial Acceptance has been achieved, will:
(i) save to the extent (if any) expressly stated in the PSDR, not be restricted by any notice, list or opinion which it previously provided to Project Co under clause 24.3(n); and
(ii) be entitled to raise any other items of work which are required to be completed in order to achieve Commercial Acceptance in accordance with this Deed which have not been so completed (other than any Returned Works Outstanding Items that are not required to be completed by Commercial Acceptance or Remaining Works) as a ground for determining that Commercial Acceptance has not been achieved.
(p) (Certificate of Commercial Acceptance): The issue of a Certificate of Commercial Acceptance in accordance with clause 24.3(j) does not constitute:
(i) evidence that Project Co has satisfied the relevant FFP Warranty;
(ii) an approval by the State of the completion or acceptance of the relevant Works under this Deed; or
(iii) evidence that all or any other obligations under this Deed have been satisfied.