(a) (Consultation): Project Co must:
(i) fully consult with each Returned Asset Owner within a reasonable time prior to, and while undertaking, any work in connection with the Returned Works that will be returned to that Returned Asset Owner so as to ensure that:
A. Project Co understands the usual requirements of that Returned Asset Owner for the relevant Returned Works (which, in the case of a Direct Interface Party, must be consistent with any corresponding requirements in any relevant Direct Interface Deed); and
B. the requirements of clause 24.4(b) are satisfied;
(ii) complete the Returned Works in accordance with the relevant Returned Works Acceptance Requirements; and
(iii) develop, conduct and satisfy all tests required in accordance with the PSDR, or as otherwise required to determine whether the relevant Returned Works Acceptance Requirements have been met in respect of the Returned Works.
(b) (General obligations): Project Co must progressively complete the Returned Works so as to ensure that:
(i) Returned Works Acceptance for all Returned Works is achieved as soon as reasonably possible to minimise any loss of amenity and inconvenience to each Returned Asset Owner (subject to any timing for completion of any Returned Works is expressly agreed by the Returned Asset Owner and Project Co under a relevant Direct Interface Deed);
(ii) Returned Works Acceptance for all Returned Works is achieved by the Date for Commercial Acceptance, other than where Returned Works are Remaining Works or Returned Works Outstanding Items; and [Note: Timing for Returned Works Acceptance for each Returned Asset to be determined on a project specific basis. There may be dates for completion of specific Returned Assets that precede the Date for Commercial Acceptance.]
(iii) achievement of Returned Works Acceptance occurs in a smooth and orderly manner (rather than in a compressed period immediately prior to Commercial Acceptance) which:
A. is consistent with the Development Phase Program; and
B. provides the Independent Reviewer and the Returned Asset Owners with sufficient time to progressively inspect the relevant Returned Works, consider whether the relevant Returned Works have been completed in accordance with the Returned Works Acceptance Requirements relevant to those Returned Works and carry out any reinspection or other activities required by the Independent Reviewer in order to determine whether the Returned Works Acceptance Requirements have been met.
(c) (Returned Works Outstanding Item): At any time prior to the Independent Reviewer making a determination under clause 24.4(k), the State and Project Co may agree or, subject to clause 24.4(d), 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 Returned Works Acceptance, does not need to be so performed, achieved, rectified, provided or completed by Project Co in order to achieve Returned Works Acceptance for the relevant Returned Works (Returned Works Outstanding Item).
(d) (Minor Defects): The Independent Reviewer may only make a determination under clause 24.4(c) if the relevant Defect, act, matter, state of affairs or thing is a Minor Defect.
(e) (Returned Works Outstanding Items List): If the State and Project Co make any agreement or the Independent Reviewer makes any determination in accordance with clause 24.4(c):
(i) Project Co must prepare a list of the Returned Works Outstanding Items for the relevant Returned Works so agreed or determined (Returned Works Outstanding Items List); and
(ii) Project Co must collate each such list into one list for all then current Returned Works Outstanding Items and provide that collated list to the State and Independent Reviewer for review in accordance with the Review Procedures no later than the date on which it gives its notice under clause 24.2(a)(iii) (Collated Returned Works Outstanding Items List).
(f) (Update Collated Returned Works Outstanding Items List): Project Co must update the Collated Returned Works Outstanding Items List, and provide it to the State and the Independent Reviewer for review in accordance with the Review Procedures, each time it creates or updates a Returned Works Outstanding Items List.
(g) (Notice by Project Co): When Project Co considers that it has met the Returned Works Acceptance Requirements for any Returned Works, Project Co must issue a notice in the form required by the Schedule of Certificates and Notices to the State, the Independent Reviewer and the relevant Returned Asset Owner which:
(i) states that it considers that it has achieved all the Returned Works Acceptance Requirements in respect of those Returned Works; and
(ii) includes the Returned Works Outstanding Items List for those Returned Works.
(h) (Notice by the State): Notwithstanding that Project Co may not have issued a notice under clause 24.4(g) or clause 24.4(p)(i), if the State considers that Returned Works Acceptance has been achieved for any Returned Works, the State may:
(i) notify Project Co, the relevant Returned Asset Owner and the State of its opinion;
(ii) ask the Independent Reviewer to issue a Certificate of Returned Works Acceptance for those Returned Works; and
(iii) include in its notice, the Returned Works Outstanding Items List for those Returned Works.
(i) (Joint inspection): No more than 5 Business Days after receipt of Project Co's notice under clause 24.4(g) or clause 24.4(p)(i) or the State's notice under clause 24.4(h), Project Co, the Independent Reviewer, the State and the relevant Returned Asset Owner (unless otherwise agreed between them) must jointly inspect the relevant Returned Works at a time agreed (or in the absence of agreement, determined by the Independent Reviewer).
(j) (Right to agree Returned Works Acceptance): The State, Project Co and the relevant Returned Asset Owner may agree, no later than 5 Business Days after the date of inspection under clause 24.4(i) that the Returned Works Acceptance Requirements have been met for the relevant Returned Works (other than any Remaining Works or Returned Works Outstanding Items), in which case, the State must promptly notify the Independent Reviewer accordingly and, whether or not it agrees with the State, the Returned Asset Owner and Project Co, the Independent Reviewer must issue a Certificate of Returned Works Acceptance in respect of the relevant Returned Works within 10 Business Days of the date of the inspection under clause 24.4(i) in accordance with clause 24.4(m).
(k) (Independent Reviewer to make determination): Subject to any agreement under clause 24.4(j), as soon as reasonably practicable and, in any event, within 10 Business Days following the date of inspection under clause 24.4(i), the Independent Reviewer must determine whether the Returned Works Acceptance Requirements for the relevant Returned Works have been met.
(l) (Independent Reviewer to consider comments of Returned Asset Owner): In determining whether the Returned Works Acceptance Requirements for the relevant Returned Works have been met, the Independent Reviewer must consider any reasonable comments of the relevant Returned Asset Owner provided within 5 Business Days after the date of the inspection under clause 24.4(i).
(m) (Independent Reviewer determines Returned Works Acceptance Requirements met): If:
(i) the Independent Reviewer is required to issue a Certificate of Returned Works Acceptance under clause 24.4(j); or
(ii) the Independent Reviewer determines under clause 24.4(k) that the Returned Works Acceptance Requirements have been met for certain Returned Works,
the Independent Reviewer must issue a Certificate of Returned Works Acceptance for the relevant Returned Works to the State, Project Co and the relevant Returned Asset Owner:
(iii) certifying that the Returned Works Acceptance Requirements have been met in respect of the relevant Returned Works;
(iv) setting out the date on which Returned Works Acceptance will occur for the relevant Returned Works, which must be agreed between Project Co and the relevant Returned Asset Owner and notified to the Independent Reviewer no later than 5 Business Days after the date of inspection under clause 24.4(i), or if not agreed by that time, determined by the Independent Reviewer, provided that the Independent Reviewer must not determine a date of Returned Works Acceptance that is less than 5 Business Days after the issue of the Certificate of Returned Works Acceptance (Date of Returned Works Acceptance); and
(v) attaching the then current Returned Works Outstanding Items List updated to include a timeframe within which all Returned Works Outstanding Items in the Returned Works Outstanding Items List must be rectified, which must be as soon as reasonably possible and no later than the Date of Final Acceptance.
(n) (If Certificate of Returned Works Acceptance is issued): If the Independent Reviewer issues a Certificate of Returned Works Acceptance in respect of Returned Works in accordance with clause 24.4(m):
(i) notwithstanding that a Certificate of Returned Works Acceptance has been issued for the Returned Works, Returned Works Acceptance will not occur until the Date of Returned Works Acceptance;
(ii) Project Co must:
A. continue to maintain and repair the Returned Works and have control of the Returned Works until the Date of Returned Works Acceptance;
B. continue to rectify or complete any Returned Works Outstanding Items;
C. handover that Returned Asset to the Returned Asset Owner on the Date of Returned Works Acceptance; and
D. provide the State and the relevant Returned Asset Owner with all such assistance as may be reasonably required in relation to the Returned Asset Owner taking over that Returned Asset on the Date of Returned Works Acceptance;
(iii) within 10 Business Days after the issue of the Certificate of Returned Works Acceptance by the Independent Reviewer under clause 24.4(m), Project Co must submit to the Independent Reviewer for review in accordance with the Review Procedures, a program for the completion or rectification of the Returned Works Outstanding Items which ensures that all Returned Works Outstanding Items are completed within a reasonable time, having regard to the timing of the relevant Date of Returned Works Acceptance and, in any case by the Date for Final Acceptance; and
(iv) without limiting the State's rights to accept or rectify any Defects in Returned Works or a Returned Asset in accordance with clause 27.6 or clause 27.7(g)(i) (as applicable), Project Co must complete or rectify any Returned Works Outstanding Items to the satisfaction of the Independent Reviewer and in accordance with program referred to in clause 24.4(n)(iii) and otherwise by the Date for Final Acceptance.
(o) (Independent Reviewer determines Returned Works Acceptance Requirements not met): If:
(i) the Independent Reviewer determines under clause 24.4(k) that the Returned Works Acceptance Requirements have not been met for any Returned Works; and
(ii) the State, Project Co and the relevant Returned Asset Owner have not otherwise required the Independent Reviewer to issue a Certificate of Returned Works Acceptance in accordance with clause 24.4(j) for those Returned Works,
the Independent Reviewer must issue a notice to the State, Project Co and the relevant Returned Asset Owner:
(iii) listing the work remaining to be undertaken in order to meet the relevant Returned Works Acceptance Requirements for those Returned Works; or
(iv) stating that the Returned Works Acceptance Requirements for those Returned Works are so far from being met that it is not practicable to provide a list of the type referred to in clause 24.4(o)(iii),
after which Project Co must continue to expeditiously and diligently progress the Development Activities for those Returned Works to meet the Returned Works Acceptance Requirements.
(p) (Notification of Returned Works Acceptance): When, after the Independent Reviewer has issued a notice under clause 24.4(o), Project Co is of the view that the Returned Works Acceptance Requirements for the relevant Returned Works have been met:
(i) Project Co must give notice to the State, the relevant Returned Asset Owner and the Independent Reviewer in accordance with clause 24.4(f), when the work listed in a notice issued by the Independent Reviewer under clause 24.4(o)(iii) has been completed or, if clause 24.4(o)(iv) applies, when Project Co is otherwise of the view that Returned Works Acceptance has been achieved; and
(ii) clauses 24.4(c) to 24.4(o) will apply in connection with Project Co's notice under clause 24.4(p)(i) in the same way as if Project Co's notice given under clause 24.4(p)(i) was the original notice given under clause 24.4(g).
(q) (No restriction on Independent Reviewer): The Independent Reviewer, in making its determination as to whether the Returned Works Acceptance Requirements have been met in respect of any Returned Works will:
(i) not be restricted by any notice, list or opinion which it previously provided to Project Co under clause 24.4(o); and
(ii) be entitled to raise any other items of work which are required to be completed in order to meet the relevant Returned Works Acceptance Requirements for those Returned Works in accordance with this Deed which have not been so completed (other than any relevant Remaining Works or Returned Works Outstanding Items) as a ground for determining that the relevant Returned Works Acceptance Requirements have not been met.
(r) (Certificate of Returned Works Acceptance): The issue of a Certificate of Returned Works Acceptance in accordance with clause 24.4(m) 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 Returned Works under this Deed; or
(iii) evidence that all or any other obligations under this Deed have been satisfied.