(a) (Review of Development Activities): Project Co acknowledges that the Independent Reviewer will (without limiting clause 20.5 including if requested to do so by the State) continually review (including by general overview, reasonable checking, visits to the Development Phase Site and review of Project Co Material) the carrying out of the Development Activities to ensure that:
(i) Commercial Acceptance will be achieved by the Date for Commercial Acceptance; and
(ii) the Development Phase Program accurately reflects the actual progress of the Works in all material respects.
(b) (Notice of non-compliance by Independent Reviewer): If, [at any time after the date that is 6 Months after Financial Close], the Independent Reviewer believes that:
[Note: Timing of review by Independent Reviewer to be determined on a project specific basis having regard to the Development Phase Program.]
(i) subject to clause 26.4(m), Commercial Acceptance will not be achieved by the Date for Commercial Acceptance; or
(ii) the Development Phase Program does not accurately reflect the actual progress of the Works in all material respects,
the Independent Reviewer may make a determination to that effect and give notice to the State and Project Co of that determination, together with its reasons for making that determination.
(c) (Frequency of review): The Independent Reviewer must not make a determination under clause 26.4(b) more frequently than [once every 3 Months]. [Note: Timing to be determined on a project specific basis having regard to the Development Phase Program.]
(d) (Project Co's response): Within 10 Business Days after receipt of the Independent Reviewer's notice referred to in clause 26.4(b), Project Co must:
(i) notify the State and the Independent Reviewer of any matters in connection with that notice with which it disagrees with the Independent Reviewer's opinion, together with its reasons for doing so (Explanation); and
(ii) to the extent it does not disagree, provide to the State and the Independent Reviewer a plan and a program for the rectification of any non-compliance, in accordance with the requirements set out in clause 26.4(f) (Remediation Plan),
for review in accordance with the Review Procedures.
(e) (Explanation): The Independent Reviewer must, within 10 Business Days after receipt of the Explanation from Project Co under clause 26.4(d)(i), give notice to the State and Project Co whether the Explanation:
(i) adequately addresses its concerns such that it will withdraw the determination under clause 26.4(b), in which case, no further action is required from Project Co in connection with the notice issued by the Independent Reviewer under clause 26.4(b); or
(ii) does not adequately address its concerns (and the reasons for this) such that it is not prepared to withdraw the determination under clause 26.4(b), in which case Project Co will have 10 Business Days after receipt of the Independent Reviewer's notice under this clause 26.4(e)(ii), within which to provide a Remediation Plan (which complies with the requirements set out in clause 26.4(f)), for review in accordance with the Review Procedures.
(f) (Remediation Plan requirements): To the extent that a Remediation Plan has been prepared by Project Co in response to a notice under clause 26.4(b) or clause 26.4(e)(ii), a Remediation Plan will not be considered to be satisfactory unless at a minimum:
(i) if the determination of the Independent Reviewer under clause 26.4(b) is that the Development Phase Program does not accurately reflect the actual progress of the Works in all material respects, it includes a revised Development Phase Program which complies with the requirements of the Development Phase Program set out in this Deed and accurately reflects the actual progress of the Works in all material respects;
(ii) if the determination of the Independent Reviewer under clause 26.4(b) is that Commercial Acceptance will not be achieved by the Date for Commercial Acceptance, it includes:
A. the date by which Commercial Acceptance will be achieved, which date may be later than the Date for Commercial Acceptance, but cannot be later than [24] Months after the Date for Commercial Acceptance; [Note: To be aligned with the period set out in clause 45.4(h).]
B. a program for Curing the issues set out in the Independent Reviewer's notice referred to in clause 26.4(b) or clause 26.4(e)(ii) (as applicable), which must include:
1) each task to be undertaken, the date by which each task is to be completed and the additional resources and personnel (if applicable) to be applied to the remediation; and
2) any temporary measures that will be undertaken to ameliorate the impact of the delay;
C. if it sets out a date by which Commercial Acceptance will be achieved that is after the Date for Commercial Acceptance, evidence satisfactory to the Independent Reviewer (acting reasonably) that the date is the earliest date by which Commercial Acceptance can be achieved if Project Co takes those steps a prudent, experienced and competent person in the position of Project Co exercising Best Industry Practices would reasonably be expected to undertake to satisfy all requirements for Commercial Acceptance as expeditiously as possible (including a reasonable expenditure of amounts); and
D. any further information reasonably required by the Independent Reviewer.
(g) (Review of Remediation Plan): The Independent Reviewer and the State must review any Remediation Plan submitted by Project Co in accordance with the Review Procedures.
(h) (Progress): If the Independent Reviewer notifies the State and Project Co that, in its opinion, a Remediation Plan satisfactorily addresses the requirements of clause 26.4(f), where the Remediation Plan is prepared as a consequence of a determination by the Independent Reviewer that:
(i) the Development Phase Program does not accurately reflect the actual progress of the Works, no further action will be taken by the State or the Independent Reviewer under this clause 26.4; or
(ii) Commercial Acceptance will not be achieved by the Date for Commercial Acceptance, Project Co must:
A. diligently pursue that Remediation Plan; and
B. update that Remediation Plan and the Development Phase Program Monthly (and in respect of the Development Phase Program, in accordance with the requirements of [#] of the PSDR) to reflect actual progress of the Remediation and submit them to the Independent Reviewer and the State for review in accordance with the Review Procedures.
(i) (Amended Remediation Plan): If the Independent Reviewer notifies the State and Project Co that, in its opinion, a Remediation Plan does not satisfactorily address the requirements of clause 26.4(f), Project Co must, within 5 Business Days after the date of the Independent Reviewer's notice, submit an amended Remediation Plan to the Independent Reviewer for review in accordance with the Review Procedures (Amended Remediation Plan).
(j) (Outcome of Amended Remediation Plan): If the Independent Reviewer notifies the State and Project Co that, in its opinion, an Amended Remediation Plan satisfactorily addresses the requirements of clause 26.4(f), then clause 26.4(h) will apply to that Amended Remediation Plan.
(k) (Deemed Major Default): If the Independent Reviewer notifies the State and Project Co:
(i) that, in its opinion:
A. an Amended Remediation Plan does not satisfactorily address the requirements of clause 26.4(f); or
B. where the Amended Remediation Plan is prepared as a consequence of a determination that Commercial Acceptance will not be achieved by the Date for Commercial Acceptance, Project Co is not diligently pursuing or updating the Remediation Plan or the Amended Remediation Plan (as applicable);
(ii) after it has received any Remediation Plan or Amended Remediation Plan (including any update) where the Amended Remediation Plan is prepared as a consequence of a determination that Commercial Acceptance will not be achieved by the Date for Commercial Acceptance, that, in its opinion, Project Co will not be able to achieve Commercial Acceptance by the date that is [24] Months after the Date for Commercial Acceptance; or
(iii) that Project Co has not provided any Explanation, Remediation Plan or Amended Remediation Plan that complies with this Deed when it is obliged to do so under this clause 26.4,
then a Major Default will be deemed to have occurred.
(l) (Dispute): If either party does not agree with a determination of the Independent Reviewer under this clause 26.4 either party may refer the matter by notice to the other party to expert determination in accordance with clause 48.1 within 20 Business Days after the Independent Reviewer's determination, save that neither party can refer a determination made by the Independent Reviewer under clause 26.4(b) to expert determination unless Project Co has first provided the Independent Reviewer and the State with an Explanation under clause 26.4(d)(i).
(m) (Subsequent reviews): While Project Co is diligently pursuing a Remediation Plan in accordance with clause 26.4(h)(ii) or an Amended Remediation Plan in accordance with clause 26.4(j) and clause 26.4(h)(ii), any subsequent review of the Development Activities under clause 26.4(a) must take into consideration that Remediation Plan or Amended Remediation Plan (as applicable).