Common use of Plan to Achieve Construction Progress Milestones Clause in Contracts

Plan to Achieve Construction Progress Milestones. If any Construction Progress Milestone has not been achieved on or before the corresponding Construction Progress Milestone Date, Contractor shall promptly prepare and submit to Owner and Independent Engineer, within thirty (30) days of such Construction Progress Milestone Date, a Plan to accelerate the performance of the Services that reasonably demonstrates that Contractor will achieve (i) at least one of Provisional Acceptance, Interim Acceptance or Final Acceptance of the Facility by the date that is twelve (12) months after the Guaranteed Provisional Acceptance Date, and (ii) Final Acceptance of the Facility by the Guaranteed Final Acceptance Date. (For the avoidance of doubt, all costs and expenses that arise in connection with the development and performance of any such Plan, including without limitation any overtime or other acceleration costs and expenses, shall be solely the responsibility of Contractor, and Owner shall have no responsibility or liability with respect thereto). Upon receipt of such a Plan, Owner or Independent Engineer shall promptly review the Plan and provide Contractor, within ten (10) days of their receipt of such Plan, with written notice of either (a) their acceptance of the Plan, which acceptance will not be unreasonably withheld (in which event such accepted Plan shall constitute an "Approved (1) revise the Plan in accordance with the comments received from Owner and Independent Engineer pursuant to said clause (b) or in accordance with such other changes as Constractor reasonably determines are appropriate, and submit the revised Plan to Owner and Independent Engineer (whereupon the procedure set forth in the preceding sentence will be repeated); or (2) if Contractor in good faith believes that its Plan as proposed reasonably demonstrates that the requirements of clauses (i) and (ii) will be achieved, submit the issue for dispute resolution pursuant to Article 21 hereof (in which event if the final decision thereunder finds that the Contractor's proposed Plan does reasonably demonstrate the likelihood of such achievements, such Plan shall constitute an Approved Plan). In the event that (A) such a dispute on a Plan is submitted to dispute resolution pursuant to clause (2) above and a final resolution thereof is not obtained thereunder by the date that is sixty (60) days after the missed Construction Progress Milestone Date, or (B) an Approved Plan is otherwise not obtained pursuant to the review and resubmittal procedure set forth above by the date that is sixty (60) days after the missed Construction Progress Milestone Date, then either (x) Contractor shall thereafter proceed to perform the Services in accordance with the Plan as revised in accordance with the most recent comments submitted by Owner and Independent Engineer pursuant to clause (b) above (provided that if a final decision subsequently received under clause (2) above finds that Contractor's proposed Plan should have been accepted by Owner as an Approved Plan, Contractor shall be entitled hereunder to a Scope Change to reflect the additional costs incurred by Contractor solely as a result of proceeding in accordance with provisions of this clause (x) instead of its proposed Plan), or (y) Contractor shall be in default hereunder pursuant to Section 16.1(k) hereof.

Plan to Achieve Construction Progress Milestones. (a) If any Construction Progress Milestone has not been achieved on or before the corresponding Construction Progress Milestone Date, Contractor shall promptly prepare and submit to Owner and Independent Engineer, within thirty (30) days of such Construction Progress Milestone Date, a Plan (which Plan may revise the order of the milestones set forth in the Payment and Milestone Schedule, but shall not increase the Contract Price or accelerate the timing of the Scheduled Payments hereunder) to accelerate the performance of the Services that reasonably demonstrates that Contractor will achieve (i) at least one of Provisional Acceptance, Interim Acceptance or Final Acceptance of the Facility by the date that is twelve (12) months after the Guaranteed Provisional Acceptance Date, and (ii) Final Acceptance of the Facility by the Guaranteed Final Acceptance Date. (For the avoidance of doubt, all costs and expenses that arise in connection with the development and performance of any such Plan, including without limitation any overtime or other acceleration costs and expenses, shall be solely the responsibility of Contractor, and Owner shall have no responsibility or liability with respect thereto). Upon receipt of such a Plan, Owner or (and, at Owner's request, the Independent Engineer Engineer) shall promptly review the Plan and provide Contractor, within ten (10) days of their receipt of such Plan, with written notice of either (a1) their acceptance approval of the Plan, which acceptance approval will not be unreasonably withheld or delayed, or (in which event 2) proposed revisions to or disapproval of (with a summary of the perceived deficiencies therein) the Plan. Upon receipt of any such accepted Plan notice from Owner under clause (2) of the preceding sentence, Contractor shall constitute an "Approved promptly take one of the following actions: (1x) revise the Plan in accordance with the comments received from Owner and Independent Engineer pursuant to said clause (b2) or in accordance with such other changes as Constractor Contractor reasonably determines are appropriate, and submit the revised Plan to Owner and (and, at Owner's request, the Independent Engineer (Engineer), whereupon the procedure set forth in the preceding sentence will be repeated); or (2y) if Contractor in good faith believes that its Plan as proposed reasonably demonstrates that the requirements of clauses (i) and (ii) Final Acceptance will be achievedachieved by the Guaranteed Final Acceptance Date, submit the issue for dispute resolution pursuant to Article 21 hereof (hereof, in which event if the final decision thereunder finds that the Contractor's proposed Plan does reasonably demonstrate the likelihood of such achievementsachievement, such Plan shall constitute an Approved Plan)be deemed approved by Owner. In the event that (A) such a dispute on a Plan is submitted to dispute resolution pursuant to clause (2y) above and a final resolution thereof is not obtained thereunder by the date that is sixty ninety (6090) days after the missed Construction Progress Milestone Date, or (B) an Approved a Plan is otherwise not obtained approved by Owner pursuant to the review and resubmittal procedure set forth above by the date that is sixty ninety (6090) days after the missed Construction Progress Milestone Date, then either (xI) Contractor shall thereafter proceed to perform the Services in accordance with the Plan as revised in accordance with the most recent comments submitted by Owner and Independent Engineer pursuant to clause (b2) above (provided PROVIDED that if a final decision subsequently received under clause (2y) above finds that Contractor's proposed Plan should have been accepted approved by Owner as an Approved PlanOwner, Contractor shall be entitled hereunder to a Scope Change to reflect the additional costs reasonably incurred by Contractor solely as a result of proceeding in accordance with provisions of this clause (xI) instead of its proposed Plan), or (yII) Contractor shall be in default hereunder pursuant to Section 16.1(k16.1(j) hereof. (b) Notwithstanding anything to the contrary in Section 7.6.2(a) hereof, if any Construction Progress Milestone has not been achieved on or before the corresponding Construction Progress Milestone Date and Contractor determines that the Services cannot, despite its best efforts, be accelerated to achieve Final Acceptance of the Facility by the Guaranteed Final Acceptance Date, then Contractor shall promptly prepare and submit for approval to Owner (and, at Owner's request, the Independent Engineer) within thirty (30) days of such Construction Progress Milestone Date a Plan (which Plan may revise the order of the milestones set forth in the Payment and Milestone Schedule, but shall not increase the Contract Price or accelerate the timing of the Scheduled Payments hereunder) to accelerate the performance of the Services as necessary in order to achieve Final Acceptance of the Facility as soon as possible. Upon receipt of such a Plan, Owner shall have the right in its sole discretion to require Contractor to proceed in accordance with such Plan (as it may be modified by Owner or the Independent Engineer as set forth in the following sentence) or, upon fifteen (15) days prior notice to Contractor, to declare an Event of Default pursuant to Section 16.1(j) hereof; PROVIDED, HOWEVER, that if Contractor shall have demonstrated to the reasonable satisfaction of Owner and the Independent Engineer that (x) the primary reason for Contractor's inability to so achieve Final Acceptance by the Guaranteed Final Acceptance Date is a defect or a delivery failure with respect to one or more of the major equipment components in the Facility's power island or transformer being provided by Subcontractors, and (y) such defect or delivery failure, or the consequent extended delay in Contractor's ability to achieve Final Acceptance as a result thereof, would not have been avoided by Contractor's compliance with the Quality Assurance Plan and the other standards of performance as specified in Section 2.3.1 hereof, then Owner and the Independent Engineer shall not unreasonably withhold approval of a Plan (as it may be modified by Owner or the Independent Engineer as set forth in the following sentence) that accelerates the performance of the Services in such a manner as to achieve Final Acceptance as soon as possible (it being understood and acknowledged that such a Plan may require the replacement of such Subcontractors). With respect to a Plan submitted under this Section 7.6.2(b), if Owner or the Independent Engineer in good faith believe such Plan does not accelerate the performance of the Services in such a manner as to achieve Final Acceptance as soon as possible, Owner shall have the right to modify such Plan (with the written concurrence of the Independent Engineer) as reasonably necessary to cause it to do so. In the event any Plan is so approved or modified by Owner (with the written concurrence of the Independent Engineer), Contractor shall thereafter perform the Services in accordance with such approved or modified Plan. (c) For the avoidance of doubt, except in the circumstances and to the extent expressly set forth in the parenthetical in clause (I) of the last sentence of Section 7.6.2(a) hereof, all costs and expenses incurred by Contractor and its Subcontractors in connection with the development and performance of any Plan pursuant to this Section 7.6.2, including without limitation any overtime or other acceleration costs and expenses, shall be solely the responsibility of Contractor, and Owner shall have no responsibility or liability with respect thereto.