Procedure for Addressing Design Issues. (a) When Project Co identifies a Design Issue, Project Co shall promptly notify the Consultant in writing, under a request for information, of such Design Issue and may propose a resolution to the Design Issue. Upon receipt of Project Co’s notification and proposed resolution, if any, the Consultant shall: (i) if a proposed resolution is provided by Project Co, proceed to review the proposed resolution and either: (A) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c)); (B) reject the proposed resolution and request that additional information be provided or request that an alternative resolution be proposed by Project Co; or (C) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution; (ii) if no resolution is proposed by Project Co, provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner or Project Co is of the view that the Design Issue is not properly characterized by the Consultant, or if either Owner or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, then either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response to any Design Issue will be provided in accordance with Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice, Change Directive or otherwise, will be an Owner cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive. (b) When the Consultant identifies a Design Issue, the Consultant shall promptly notify Project Co of such Design Issue in writing as a Supplemental Instruction or by providing a Contemplated Change Notice or a Change Directive, as applicable in the circumstances. If issued as a Supplemental Instruction, Project Co may review the Design Issue and propose an alternative resolution to the Consultant. Upon receipt of Project Co’s proposed alternative resolution, the Consultant shall proceed to review the proposed alternative resolution and either: (i) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c)); (ii) reject the proposed resolution, request that additional information be provided or request a further alternative resolution be proposed by Project Co; or (iii) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner or Project Co is of the view that the Design Issue is not properly characterized by the Consultant or if either Owner or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response shall be provided in accordance with the provisions of Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice or Change Directive or otherwise, will be an Owner cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive. (c) An acceptable resolution to a Design Issue shall be a resolution that (i) in all respects is consistent with the design intent and quality standards of the Contract Documents; (ii) will not interfere with the efficient operations of Owner; and (iii) will not increase the life cycle costs of the Facility. If the resolution to a Design Issue proposed by the Consultant is of a higher quality, not consistent with the design intent and quality standards of the Contract Documents, Project Co will, subject to and in accordance with Schedule 11 – Change Procedure, be entitled to a Change in the Scope of the Work. (d) If either Owner or Project Co is of the view that a Design Issue is not properly characterized by the Consultant or does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, and such issues will be determined in accordance with Schedule 14 – Dispute Resolution Procedure. Project Co acknowledges that notwithstanding any such dispute, the Consultant may issue a Supplemental Instruction to Project Co for a resolution to the Design Issue and Project Co shall proceed to implement such resolution to the Design Issue in accordance with the Supplemental Instruction issued by the Consultant, pending resolution of the dispute and subject to Section 1.3 of Schedule 14 – Dispute Resolution Procedure. (e) The Project Co Design Contingency is included in the Cost of the Work and the Guaranteed Price and Project Co is solely responsible for all costs to remedy all Design Issues that are properly characterized as Project Co Design Issues, and Project Co will not be entitled to any additional compensation or change in the Contract Time with respect to any and all Design Issues that are properly characterized as Project Co Design Issues, subject, in each case, to Section 11.18(c), and to the responsibility of Owner, at Owner’s cost, for the provision of professional design services as specifically provided in Sections 11.18(a) and 11.18(b). Subject to the preceding sentence, and notwithstanding anything to the contrary in this Project Agreement, Project Co acknowledges and agrees that it shall have no recourse against Owner in respect of any Project Co Design Contingency or any costs directly or indirectly arising out of a Design Issue that is properly characterized as a Project Co Design Issue. Project Co is not accountable to Owner for the expenditure of the amount Project Co has carried as the Project Co Design Contingency and Owner has no entitlement to claimthe unused portion, if any, of the Project Co Design Contingency. Payment of the Guaranteed Price to Project Co (which, for greater certainty, shall include any unused portion of the Project Co Design Contingency) shall fully satisfy Project Co in respect of its costs to carry the Project Co Design Contingency and all costs of Project Co to remedy all Design Issues that are properly characterized as Project Co Design Issues. Further to and without limiting the foregoing, but, subject to the limitations set out in Section 34.2(b), Project Co acknowledges and agrees that it shall have no recourse against the Consultant in respect of any Design Issue, except for claims arising in relation to the professional negligence or errors and omissions of the Consultant. (f) Project Co shall provide the Consultant, Owner and Owner’s Project Manager with a detailed weekly update report in form and substance satisfactory to the Consultant and Owner, on the status of all outstanding Design Issues.
Appears in 2 contracts
Samples: Project Agreement, Project Agreement
Procedure for Addressing Design Issues. (a) When Project Co identifies a Design Issue, Project Co shall promptly notify the Consultant in writing, under a request for information, of such Design Issue and may propose a resolution to the Design Issue. Upon receipt of Project Co’s notification and proposed resolution, if any, the Consultant shall:
(i) if a proposed resolution is provided by Project Co, proceed to review the proposed resolution and either:
(A) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(B) reject the proposed resolution and request that additional information be provided or request that an alternative resolution be proposed by Project Co; or
(C) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution;
(ii) if no resolution is proposed by Project Co, provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner or Project Co is of the view that the Design Issue is not properly characterized by the Consultant, or if either Owner or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, then either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response to any Design Issue will be provided in accordance with Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice, Change Directive or otherwise, will be an Owner cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(b) When the Consultant identifies a Design Issue, the Consultant shall promptly notify Project Co of such Design Issue in writing as a Supplemental Instruction or by providing a Contemplated Change Notice or a Change Directive, as applicable in the circumstances. If issued as a Supplemental Instruction, Project Co may review the Design Issue and propose an alternative resolution to the Consultant. Upon receipt of Project Co’s proposed alternative resolution, the Consultant shall proceed to review the proposed alternative resolution and either:
(i) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(ii) reject the proposed resolution, request that additional information be provided or request a further alternative resolution be proposed by Project Co; or
(iii) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner or Project Co is of the view that the Design Issue is not properly characterized by the Consultant or if either Owner or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response shall be provided in accordance with the provisions of Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice or Change Directive or otherwise, will be an Owner cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(c) An acceptable resolution to a Design Issue shall be a resolution that (i) in all respects is consistent with the design intent and quality standards of the Contract Documents; (ii) will not interfere with the efficient operations of Owner; and (iii) will not increase the life cycle costs of the Facility. If the resolution to a Design Issue proposed by the Consultant is of a higher quality, not consistent with the design intent and quality standards of the Contract Documents, Project Co will, subject to and in accordance with Schedule 11 – Change Procedure, be entitled to a Change in the Scope of the Work.
(d) If either Owner or Project Co is of the view that a Design Issue is not properly characterized by the Consultant or does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, and such issues will be determined in accordance with Schedule 14 – Dispute Resolution Procedure. Project Co acknowledges that notwithstanding any such dispute, the Consultant may issue a Supplemental Instruction to Project Co for a resolution to the Design Issue and Project Co shall proceed to implement such resolution to the Design Issue in accordance with the Supplemental Instruction issued by the Consultant, pending resolution of the dispute and subject to Section 1.3 of Schedule 14 – Dispute Resolution Procedure.
(e) The Project Co Design Contingency is included in the Cost of the Work and the Guaranteed Price and Project Co is solely responsible for all costs to remedy all Design Issues that are properly characterized as Project Co Design Issues, and Project Co will not be entitled to any additional compensation or change in the Contract Time with respect to any and all Design Issues that are properly characterized as Project Co Design Issues, subject, in each case, to Section 11.18(c), and to the responsibility of Owner, at Owner’s cost, for the provision of professional design services as specifically provided in Sections 11.18(a) and 11.18(b). Subject to the preceding sentence, and notwithstanding anything to the contrary in this Project Agreement, Project Co acknowledges and agrees that it shall have no recourse against Owner in respect of any Project Co Design Contingency or any costs directly or indirectly arising out of a Design Issue that is properly characterized as a Project Co Design Issue. Project Co is not accountable to Owner for the expenditure of the amount Project Co has carried as the Project Co Design Contingency and Owner has no entitlement to claimthe claim the unused portion, if any, of the Project Co Design Contingency. Payment of the Guaranteed Price to Project Co (which, for greater certainty, shall include any unused portion of the Project Co Design Contingency) shall fully satisfy Project Co in respect of its costs to carry the Project Co Design Contingency and all costs of Project Co to remedy all Design Issues that are properly characterized as Project Co Design Issues. Further to and without limiting the foregoing, but, subject to the limitations set out in Section 34.2(b), Project Co acknowledges and agrees that it shall have no recourse against the Consultant in respect of any Design Issue, except for claims arising in relation to the professional negligence or errors and omissions of the Consultant.
(f) Project Co shall provide the Consultant, Owner and Owner’s Project Manager with a detailed weekly update report in form and substance satisfactory to the Consultant and Owner, on the status of all outstanding Design Issues.
Appears in 2 contracts
Samples: Project Agreement, Project Agreement
Procedure for Addressing Design Issues. (a) When Project Co identifies a Design Issue, Project Co shall promptly notify the Consultant in writing, under a request for information, of such Design Issue and may propose a resolution to the Design Issue. Upon receipt of Project Co’s notification and proposed resolution, if any, the Consultant shall:
(i) if a proposed resolution is provided by Project Co, proceed to review the proposed resolution and either:
(A) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(B) reject the proposed resolution and request that additional information be provided or request that an alternative resolution be proposed by Project Co; or
(C) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution;
(ii) if no resolution is proposed by Project Co, provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner or Project Co is of the view that the Design Issue is not properly characterized by the Consultant, or if either Owner or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, then either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response to any Design Issue will be provided in accordance with Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice, Change Directive or otherwise, will be an Owner cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(b) When the Consultant identifies a Design Issue, the Consultant shall promptly notify Project Co of such Design Issue in writing as a Supplemental Instruction or by providing a Contemplated Change Notice or a Change Directive, as applicable in the circumstances. If issued as a Supplemental Instruction, Project Co may review the Design Issue and propose an alternative resolution to the Consultant. Upon receipt of Project Co’s proposed alternative resolution, the Consultant shall proceed to review the proposed alternative resolution and either:
(i) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(ii) reject the proposed resolution, request that additional information be provided or request a further alternative resolution be proposed by Project Co; or
(iii) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner or Project Co is of the view that the Design Issue is not properly characterized by the Consultant or if either Owner or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response shall be provided in accordance with the provisions of Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice or Change Directive or otherwise, will be an Owner cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(c) An acceptable resolution to a Design Issue shall be a resolution that (i) in all respects is consistent with the design intent and quality standards of the Contract Documents; (ii) will not interfere with the efficient operations of Owner; and (iii) will not increase the life cycle costs of the Facility. If the resolution to a Design Issue proposed by the Consultant is of a higher quality, not consistent with the design intent and quality standards of the Contract Documents, Project Co will, subject to and in accordance with Schedule 11 – Change Procedure, be entitled to a Change in the Scope of the Work.
(d) If either Owner or Project Co is of the view that a Design Issue is not properly characterized by the Consultant or does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, and such issues will be determined in accordance with Schedule 14 – Dispute Resolution Procedure. Project Co acknowledges that notwithstanding any such dispute, the Consultant may issue a Supplemental Instruction to Project Co for a resolution to the Design Issue and Project Co shall proceed to implement such resolution to the Design Issue in accordance with the Supplemental Instruction issued by the Consultant, pending resolution of the dispute and subject to Section 1.3 of Schedule 14 – Dispute Resolution Procedure.
(e) The Project Co Design Contingency is included in the Cost of the Work and the Guaranteed Price and Project Co is solely responsible for all costs to remedy all Design Issues that are properly characterized as Project Co Design Issues, and Project Co will not be entitled to any additional compensation or change in the Contract Time with respect to any and all Design Issues that are properly characterized as Project Co Design Issues, subject, in each case, to Section 11.18(c), and to the responsibility of Owner, at Owner’s cost, for the provision of professional design services as specifically provided in Sections 11.18(a) and 11.18(b). Subject to the preceding sentence, and notwithstanding anything to the contrary in this Project Agreement, Project Co acknowledges and agrees that it shall have no recourse against Owner in respect of any Project Co Design Contingency or any costs directly or indirectly arising out of a Design Issue that is properly characterized as a Project Co Design Issue. Project Co is not accountable to Owner for the expenditure of the amount Project Co has carried as the Project Co Design Contingency and Owner has no entitlement to claimthe unused portion, if any, of the Project Co Design Contingency. Payment of the Guaranteed Price to Project Co (which, for greater certainty, shall include any unused portion of the Project Co Design Contingency) shall fully satisfy Project Co in respect of its costs to carry the Project Co Design Contingency and all costs of Project Co to remedy all Design Issues that are properly characterized as Project Co Design Issues. Further to and without limiting the foregoing, but, subject to the limitations set out in Section 34.2(b), Project Co acknowledges and agrees that it shall have no recourse against the Consultant in respect of any Design Issue, except for claims arising in relation to the professional negligence or errors and omissions of the Consultant.
(f) Project Co shall provide the Consultant, Owner and Owner’s Project Manager with a detailed weekly update report in form and substance satisfactory to the Consultant and Owner, on the status of all outstanding Design Issues.and
Appears in 2 contracts
Samples: Project Agreement, Project Agreement
Procedure for Addressing Design Issues. (a) When Project Co identifies a Design Issue, Project Co shall promptly notify the Consultant in writing, under a request for information, of such Design Issue and may propose a resolution to the Design Issue. Upon receipt of Project Co’s notification and proposed resolution, if any, the Consultant shall:
(i) if a proposed resolution is provided by Project Co, proceed to review the proposed resolution and either:
(A) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(B) reject the proposed resolution and request that additional information be provided or request that an alternative resolution be proposed by Project Co; or
(C) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution;
(ii) if no resolution is proposed by Project Co, provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner or Project Co is of the view that the Design Issue is not properly characterized by the Consultant, or if either Owner or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, then either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response to any Design Issue will be provided in accordance with Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice, Change Directive or otherwise, will be an Owner cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(b) When the Consultant identifies a Design Issue, the Consultant shall promptly notify Project Co of such Design Issue in writing as a Supplemental Instruction or by providing a Contemplated Change Notice or a Change Directive, as applicable in the circumstances. If issued as a Supplemental Instruction, Project Co may review the Design Issue and propose an alternative resolution to the Consultant. Upon receipt of Project Co’s proposed alternative resolution, the Consultant shall proceed to review the proposed alternative resolution and either:
(i) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(ii) reject the proposed resolution, request that additional information be provided or request a further alternative resolution be proposed by Project Co; or
(iii) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner or Project Co is of the view that the Design Issue is not properly characterized by the Consultant or if either Owner or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response shall be provided in accordance with the provisions of Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice or Change Directive or otherwise, will be an Owner cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(c) An acceptable resolution to a Design Issue shall be a resolution that (i) in all respects is consistent with the design intent and quality standards of the Contract Documents; (ii) will not interfere with the efficient operations of Owner; and (iii) will not increase the life cycle costs of the Facility. If the resolution to a Design Issue proposed by the Consultant is of a higher quality, not consistent with the design intent and quality standards of the Contract Documents, Project Co will, subject to and in accordance with Schedule 11 – Change Procedure, be entitled to a Change in the Scope of the Work.
(d) If either Owner or Project Co is of the view that a Design Issue is not properly characterized by the Consultant or does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, and such issues will be determined in accordance with Schedule 14 – Dispute Resolution Procedure. Project Co acknowledges that notwithstanding any such dispute, the Consultant may issue a Supplemental Instruction to Project Co for a resolution to the Design Issue and Project Co shall proceed to implement such resolution to the Design Issue in accordance with the Supplemental Instruction issued by the Consultant, pending resolution of the dispute and subject to Section 1.3 of Schedule 14 – Dispute Resolution Procedure.
(e) The Project Co Design Contingency is included in the Cost of the Work and the Guaranteed Price and Project Co is solely responsible for all costs to remedy all Design Issues that are properly characterized as Project Co Design Issues, and Project Co will not be entitled to any additional compensation or change in the Contract Time with respect to any and all Design Issues that are properly characterized as Project Co Design Issues, subject, in each case, to Section 11.18(c), and to the responsibility of Owner, at Owner’s cost, for the provision of professional design services as specifically provided in Sections 11.18(a) and 11.18(b). Subject to the preceding sentence, and notwithstanding anything to the contrary in this Project Agreement, Project Co acknowledges and agrees that it shall have no recourse against Owner in respect of any Project Co Design Contingency or any costs directly or indirectly arising out of a Design Issue that is properly characterized as a Project Co Design Issue. Project Co is not accountable to Owner for the expenditure of the amount Project Co has carried as the Project Co Design Contingency and Owner has no entitlement to claimthe unused portion, if any, of the Project Co Design Contingency. Payment of the Guaranteed Price to Project Co (which, for greater certainty, shall include any unused portion of the Project Co Design Contingency) shall fully satisfy Project Co in respect of its costs to carry the Project Co Design Contingency and all costs of Project Co to remedy all Design Issues that are properly characterized as Project Co Design Issues. Further to and without limiting the foregoing, but, subject to the limitations set out in Section 34.2(b), Project Co acknowledges and agrees that it shall have no recourse against the Consultant in respect of any Design Issue, except for claims arising in relation to the professional negligence or errors and omissions of the Consultant.
(f) Project Co shall provide the Consultant, Owner and Owner’s Project Manager with a detailed weekly update report in form and substance satisfactory to the Consultant and Owner, on the status of all outstanding Design Issues.
Appears in 1 contract
Samples: Project Agreement
Procedure for Addressing Design Issues. (a) When Project Co identifies a Design Issue, Project Co shall promptly notify the Consultant in writing, under a request for information, of such Design Issue and may propose a resolution to the Design Issue. Upon receipt of Project Co’s notification and proposed resolution, if any, the Consultant shall:
(i) if a proposed resolution is provided by Project Co, proceed to review the proposed resolution and either:
(A) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(B) reject the proposed resolution and request that additional information be provided or request that an alternative resolution be proposed by Project Co; or
(C) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution;
(ii) if no resolution is proposed by Project Co, provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner CMH issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner CMH or Project Co is of the view that the Design Issue is not properly characterized by the Consultant, or if either Owner CMH or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, then either Owner CMH or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response to any Design Issue will be provided in accordance with Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice, Change Directive or otherwise, will be an Owner CMH cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner CMH and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner CMH acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(b) When the Consultant identifies a Design Issue, the Consultant shall promptly notify Project Co of such Design Issue in writing as a Supplemental Instruction or by providing a Contemplated Change Notice or a Change Directive, as applicable in the circumstances. If issued as a Supplemental Instruction, Project Co may review the Design Issue and propose an alternative resolution to the Consultant. Upon receipt of Project Co’s proposed alternative resolution, the Consultant shall proceed to review the proposed alternative resolution and either:
(i) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(ii) reject the proposed resolution, request that additional information be provided or request a further alternative resolution be proposed by Project Co; or
(iii) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner CMH issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner CMH or Project Co is of the view that the Design Issue is not properly characterized by the Consultant or if either Owner CMH or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner CMH or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response shall be provided in accordance with the provisions of Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice or Change Directive or otherwise, will be an Owner CMH cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner CMH and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner CMH acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(c) An acceptable resolution to a Design Issue shall be a resolution that (i) in all respects is consistent with the design intent and quality standards of the Contract Documents; (ii) will not interfere with the efficient operations of OwnerCMH; and (iii) will not increase the life cycle costs of the Facility. If the resolution to a Design Issue proposed by the Consultant is of a higher quality, not consistent with the design intent and quality standards of the Contract Documents, Project Co will, subject to and in accordance with Schedule 11 – Change Procedure, be entitled to a Change in the Scope of the Work.
(d) If either Owner or Project Co is of the view that a Design Issue is not properly characterized by the Consultant or does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, and such issues will be determined in accordance with Schedule 14 – Dispute Resolution Procedure. Project Co acknowledges that notwithstanding any such dispute, the Consultant may issue a Supplemental Instruction to Project Co for a resolution to the Design Issue and Project Co shall proceed to implement such resolution to the Design Issue in accordance with the Supplemental Instruction issued by the Consultant, pending resolution of the dispute and subject to Section 1.3 of Schedule 14 – Dispute Resolution Procedure.
(e) The Project Co Design Contingency is included in the Cost of the Work and the Guaranteed Price and Project Co is solely responsible for all costs to remedy all Design Issues that are properly characterized as Project Co Design Issues, and Project Co will not be entitled to any additional compensation or change in the Contract Time with respect to any and all Design Issues that are properly characterized as Project Co Design Issues, subject, in each case, to Section 11.18(c), and to the responsibility of Owner, at Owner’s cost, for the provision of professional design services as specifically provided in Sections 11.18(a) and 11.18(b). Subject to the preceding sentence, and notwithstanding anything to the contrary in this Project Agreement, Project Co acknowledges and agrees that it shall have no recourse against Owner in respect of any Project Co Design Contingency or any costs directly or indirectly arising out of a Design Issue that is properly characterized as a Project Co Design Issue. Project Co is not accountable to Owner for the expenditure of the amount Project Co has carried as the Project Co Design Contingency and Owner has no entitlement to claimthe unused portion, if any, of the Project Co Design Contingency. Payment of the Guaranteed Price to Project Co (which, for greater certainty, shall include any unused portion of the Project Co Design Contingency) shall fully satisfy Project Co in respect of its costs to carry the Project Co Design Contingency and all costs of Project Co to remedy all Design Issues that are properly characterized as Project Co Design Issues. Further to and without limiting the foregoing, but, subject to the limitations set out in Section 34.2(b), Project Co acknowledges and agrees that it shall have no recourse against the Consultant in respect of any Design Issue, except for claims arising in relation to the professional negligence or errors and omissions of the Consultant.
(f) Project Co shall provide the Consultant, Owner and Owner’s Project Manager with a detailed weekly update report in form and substance satisfactory to the Consultant and Owner, on the status of all outstanding Design Issues.and
Appears in 1 contract
Samples: Project Agreement
Procedure for Addressing Design Issues. (a) When Project Co identifies a Design Issue, Project Co shall promptly notify the Consultant in writing, under a request for information, of such Design Issue and may propose a resolution to the Design Issue. Upon receipt of Project Co’s notification and proposed resolution, if any, the Consultant shall:
(i) if a proposed resolution is provided by Project Co, proceed to review the proposed resolution and either:
(A) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(B) reject the proposed resolution and request that additional information be provided or request that an alternative resolution be proposed by Project Co; or
(C) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution;
(ii) if no resolution is proposed by Project Co, provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner UOHI issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner UOHI or Project Co is of the view that the Design Issue is not properly characterized by the Consultant, or if either Owner UOHI or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, then either Owner UOHI or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response to any Design Issue will be provided in accordance with Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice, Change Directive or otherwise, will be an Owner a UOHI cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner UOHI and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner UOHI acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(b) When the Consultant identifies a Design Issue, the Consultant shall promptly notify Project Co of such Design Issue in writing as a Supplemental Instruction or by providing a Contemplated Change Notice or a Change Directive, as applicable in the circumstances. If issued as a Supplemental Instruction, Project Co may review the Design Issue and propose an alternative resolution to the Consultant. Upon receipt of Project Co’s proposed alternative resolution, the Consultant shall proceed to review the proposed alternative resolution and either:
(i) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(ii) reject the proposed resolution, request that additional information be provided or request a further alternative resolution be proposed by Project Co; or
(iii) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner UOHI issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner UOHI or Project Co is of the view that the Design Issue is not properly characterized by the Consultant or if either Owner UOHI or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner UOHI or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response shall be provided in accordance with the provisions of Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice or Change Directive or otherwise, will be an Owner UOHI cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner UOHI and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner UOHI acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(c) An acceptable resolution to a Design Issue shall be a resolution that (i) in all respects is consistent with the design intent and quality standards of the Contract Documents; (ii) will not interfere with the efficient operations of OwnerUOHI; and (iii) will not increase the life cycle costs of the Facility. If the resolution to a Design Issue proposed by the Consultant is of a higher quality, not consistent with the design intent and quality standards of the Contract Documents, Project Co will, subject to and in accordance with Schedule 11 – Change Procedure, be entitled to a Change in the Scope of the Work.
(d) If either Owner or Project Co is of the view that a Design Issue is not properly characterized by the Consultant or does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, and such issues will be determined in accordance with Schedule 14 – Dispute Resolution Procedure. Project Co acknowledges that notwithstanding any such dispute, the Consultant may issue a Supplemental Instruction to Project Co for a resolution to the Design Issue and Project Co shall proceed to implement such resolution to the Design Issue in accordance with the Supplemental Instruction issued by the Consultant, pending resolution of the dispute and subject to Section 1.3 of Schedule 14 – Dispute Resolution Procedure.
(e) The Project Co Design Contingency is included in the Cost of the Work and the Guaranteed Price and Project Co is solely responsible for all costs to remedy all Design Issues that are properly characterized as Project Co Design Issues, and Project Co will not be entitled to any additional compensation or change in the Contract Time with respect to any and all Design Issues that are properly characterized as Project Co Design Issues, subject, in each case, to Section 11.18(c), and to the responsibility of Owner, at Owner’s cost, for the provision of professional design services as specifically provided in Sections 11.18(a) and 11.18(b). Subject to the preceding sentence, and notwithstanding anything to the contrary in this Project Agreement, Project Co acknowledges and agrees that it shall have no recourse against Owner in respect of any Project Co Design Contingency or any costs directly or indirectly arising out of a Design Issue that is properly characterized as a Project Co Design Issue. Project Co is not accountable to Owner for the expenditure of the amount Project Co has carried as the Project Co Design Contingency and Owner has no entitlement to claimthe unused portion, if any, of the Project Co Design Contingency. Payment of the Guaranteed Price to Project Co (which, for greater certainty, shall include any unused portion of the Project Co Design Contingency) shall fully satisfy Project Co in respect of its costs to carry the Project Co Design Contingency and all costs of Project Co to remedy all Design Issues that are properly characterized as Project Co Design Issues. Further to and without limiting the foregoing, but, subject to the limitations set out in Section 34.2(b), Project Co acknowledges and agrees that it shall have no recourse against the Consultant in respect of any Design Issue, except for claims arising in relation to the professional negligence or errors and omissions of the Consultant.
(f) Project Co shall provide the Consultant, Owner and Owner’s Project Manager with a detailed weekly update report in form and substance satisfactory to the Consultant and Owner, on the status of all outstanding Design Issues.and
Appears in 1 contract
Samples: Project Agreement
Procedure for Addressing Design Issues. (a) When Project Co identifies a Design Issue, Project Co shall promptly notify the Consultant in writing, under a request for information, of such Design Issue and may propose a resolution to the Design Issue. Upon receipt of Project Co’s notification and proposed resolution, if any, the Consultant shall:
(i) if a proposed resolution is provided by Project Co, proceed to review the proposed resolution and either:
(A) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(B) reject the proposed resolution and request that additional information be provided or request that an alternative resolution be proposed by Project Co; or
(C) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution;
(ii) if no resolution is proposed by Project Co, provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner HMQ issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner HMQ or Project Co is of the view that the Design Issue is not properly characterized by the Consultant, or if either Owner HMQ or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, then either Owner HMQ or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response to any Design Issue will be provided in accordance with Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice, Change Directive or otherwise, will be an Owner HMQ cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner HMQ and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner HMQ acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(b) When the Consultant identifies a Design Issue, the Consultant shall promptly notify Project Co of such Design Issue in writing as a Supplemental Instruction or by providing a Contemplated Change Notice or a Change Directive, as applicable in the circumstances. If issued as a Supplemental Instruction, Project Co may review the Design Issue and propose an alternative resolution to the Consultant. Upon receipt of Project Co’s proposed alternative resolution, the Consultant shall proceed to review the proposed alternative resolution and either:
(i) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(ii) reject the proposed resolution, request that additional information be provided or request a further alternative resolution be proposed by Project Co; or
(iii) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner HMQ issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner HMQ or Project Co is of the view that the Design Issue is not properly characterized by the Consultant or if either Owner HMQ or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner HMQ or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response shall be provided in accordance with the provisions of Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice or Change Directive or otherwise, will be an Owner HMQ cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner HMQ and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner HMQ acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(c) An acceptable resolution to a Design Issue shall be a resolution that (i) in all respects is consistent with the design intent and quality standards of the Contract Documents; (ii) will not interfere with the efficient operations of OwnerHMQ; and (iii) will not increase the life cycle costs of the Facility. If the resolution to a Design Issue proposed by the Consultant is of a higher quality, not consistent with the design intent and quality standards of the Contract Documents, Project Co will, subject to and in accordance with Schedule 11 – Change Procedure, be entitled to a Change in the Scope of the Work.
(d) If either Owner or Project Co is of the view that a Design Issue is not properly characterized by the Consultant or does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, and such issues will be determined in accordance with Schedule 14 – Dispute Resolution Procedure. Project Co acknowledges that notwithstanding any such dispute, the Consultant may issue a Supplemental Instruction to Project Co for a resolution to the Design Issue and Project Co shall proceed to implement such resolution to the Design Issue in accordance with the Supplemental Instruction issued by the Consultant, pending resolution of the dispute and subject to Section 1.3 of Schedule 14 – Dispute Resolution Procedure.
(e) The Project Co Design Contingency is included in the Cost of the Work and the Guaranteed Price and Project Co is solely responsible for all costs to remedy all Design Issues that are properly characterized as Project Co Design Issues, and Project Co will not be entitled to any additional compensation or change in the Contract Time with respect to any and all Design Issues that are properly characterized as Project Co Design Issues, subject, in each case, to Section 11.18(c), and to the responsibility of Owner, at Owner’s cost, for the provision of professional design services as specifically provided in Sections 11.18(a) and 11.18(b). Subject to the preceding sentence, and notwithstanding anything to the contrary in this Project Agreement, Project Co acknowledges and agrees that it shall have no recourse against Owner in respect of any Project Co Design Contingency or any costs directly or indirectly arising out of a Design Issue that is properly characterized as a Project Co Design Issue. Project Co is not accountable to Owner for the expenditure of the amount Project Co has carried as the Project Co Design Contingency and Owner has no entitlement to claimthe unused portion, if any, of the Project Co Design Contingency. Payment of the Guaranteed Price to Project Co (which, for greater certainty, shall include any unused portion of the Project Co Design Contingency) shall fully satisfy Project Co in respect of its costs to carry the Project Co Design Contingency and all costs of Project Co to remedy all Design Issues that are properly characterized as Project Co Design Issues. Further to and without limiting the foregoing, but, subject to the limitations set out in Section 34.2(b), Project Co acknowledges and agrees that it shall have no recourse against the Consultant in respect of any Design Issue, except for claims arising in relation to the professional negligence or errors and omissions of the Consultant.
(f) Project Co shall provide the Consultant, Owner and Owner’s Project Manager with a detailed weekly update report in form and substance satisfactory to the Consultant and Owner, on the status of all outstanding Design Issues.and
Appears in 1 contract
Samples: Project Agreement
Procedure for Addressing Design Issues. (a) When Project Co identifies a Design Issue, Project Co shall promptly notify the Consultant in writing, under a request for information, of such Design Issue and may propose a resolution to the Design Issue. Upon receipt of Project Co’s Co‟s notification and proposed resolution, if any, the Consultant shall:
(i) if a proposed resolution is provided by Project Co, proceed to review the proposed resolution and either:
(A) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(B) reject the proposed resolution and request that additional information be provided or request that an alternative resolution be proposed by Project Co; or
(C) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution;
(ii) if no resolution is proposed by Project Co, provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner or Project Co is of the view that the Design Issue is not properly characterized by the Consultant, or if either Owner or Project Co does not agree with the Consultant’s Consultant‟s decision regarding what constitutes an acceptable resolution to the Design Issue, then either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s Consultant‟s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s Consultant‟s response to any Design Issue will be provided in accordance with Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice, Change Directive or otherwise, will be an Owner cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(b) When the Consultant identifies a Design Issue, the Consultant shall promptly notify Project Co of such Design Issue in writing as a Supplemental Instruction or by providing a Contemplated Change Notice or a Change Directive, as applicable in the circumstances. If issued as a Supplemental Instruction, Project Co may review the Design Issue and propose an alternative resolution to the Consultant. Upon receipt of Project Co’s Co‟s proposed alternative resolution, the Consultant shall proceed to review the proposed alternative resolution and either:
(i) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(ii) reject the proposed resolution, request that additional information be provided or request a further alternative resolution be proposed by Project Co; or
(iii) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner or Project Co is of the view that the Design Issue is not properly characterized by the Consultant or if either Owner or Project Co does not agree with the Consultant’s Consultant‟s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s Consultant‟s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s Consultant‟s response shall be provided in accordance with the provisions of Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice or Change Directive or otherwise, will be an Owner cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(c) An acceptable resolution to a Design Issue shall be a resolution that (i) in all respects is consistent with the design intent and quality standards of the Contract Documents; (ii) will not interfere with the efficient operations of Owner; and (iii) will not increase the life cycle costs of the Facility. If the resolution to a Design Issue proposed by the Consultant is of a higher quality, not consistent with the design intent and quality standards of the Contract Documents, Project Co will, subject to and in accordance with Schedule 11 – Change Procedure, be entitled to a Change in the Scope of the Work.
(d) If either Owner or Project Co is of the view that a Design Issue is not properly characterized by the Consultant or does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, and such issues will be determined in accordance with Schedule 14 – Dispute Resolution Procedure. Project Co acknowledges that notwithstanding any such dispute, the Consultant may issue a Supplemental Instruction to Project Co for a resolution to the Design Issue and Project Co shall proceed to implement such resolution to the Design Issue in accordance with the Supplemental Instruction issued by the Consultant, pending resolution of the dispute and subject to Section 1.3 of Schedule 14 – Dispute Resolution Procedure.
(e) The Project Co Design Contingency is included in the Cost of the Work and the Guaranteed Price and Project Co is solely responsible for all costs to remedy all Design Issues that are properly characterized as Project Co Design Issues, and Project Co will not be entitled to any additional compensation or change in the Contract Time with respect to any and all Design Issues that are properly characterized as Project Co Design Issues, subject, in each case, to Section 11.18(c), and to the responsibility of Owner, at Owner’s cost, for the provision of professional design services as specifically provided in Sections 11.18(a) and 11.18(b). Subject to the preceding sentence, and notwithstanding anything to the contrary in this Project Agreement, Project Co acknowledges and agrees that it shall have no recourse against Owner in respect of any Project Co Design Contingency or any costs directly or indirectly arising out of a Design Issue that is properly characterized as a Project Co Design Issue. Project Co is not accountable to Owner for the expenditure of the amount Project Co has carried as the Project Co Design Contingency and Owner has no entitlement to claimthe unused portion, if any, of the Project Co Design Contingency. Payment of the Guaranteed Price to Project Co (which, for greater certainty, shall include any unused portion of the Project Co Design Contingency) shall fully satisfy Project Co in respect of its costs to carry the Project Co Design Contingency and all costs of Project Co to remedy all Design Issues that are properly characterized as Project Co Design Issues. Further to and without limiting the foregoing, but, subject to the limitations set out in Section 34.2(b), Project Co acknowledges and agrees that it shall have no recourse against the Consultant in respect of any Design Issue, except for claims arising in relation to the professional negligence or errors and omissions of the Consultant.
(f) Project Co shall provide the Consultant, Owner and Owner’s Project Manager with a detailed weekly update report in form and substance satisfactory to the Consultant and Owner, on the status of all outstanding Design Issues.and
Appears in 1 contract
Samples: Project Agreement
Procedure for Addressing Design Issues. (a) When Project Co identifies a Design Issue, Project Co shall promptly notify the Consultant in writing, under a request for information, of such Design Issue and may propose a resolution to the Design Issue. Upon receipt of Project Co’s notification and proposed resolution, if any, the Consultant shall:
(i) if a proposed resolution is provided by Project Co, proceed to review the proposed resolution and either:
(A) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(B) reject the proposed resolution and request that additional information be provided or request that an alternative resolution be proposed by Project Co; or
(C) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution;
(ii) if no resolution is proposed by Project Co, provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner CHH issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner CHH or Project Co is of the view that the Design Issue is not properly characterized by the Consultant, or if either Owner CHH or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, then either Owner CHH or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response to any Design Issue will be provided in accordance with Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice, Change Directive or otherwise, will be an Owner a CHH cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner CHH and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner CHH acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(b) When the Consultant identifies a Design Issue, the Consultant shall promptly notify Project Co of such Design Issue in writing as a Supplemental Instruction or by providing a Contemplated Change Notice or a Change Directive, as applicable in the circumstances. If issued as a Supplemental Instruction, Project Co may review the Design Issue and propose an alternative resolution to the Consultant. Upon receipt of Project Co’s proposed alternative resolution, the Consultant shall proceed to review the proposed alternative resolution and either:
(i) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(ii) reject the proposed resolution, request that additional information be provided or request a further alternative resolution be proposed by Project Co; or
(iii) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner CHH issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner CHH or Project Co is of the view that the Design Issue is not properly characterized by the Consultant or if either Owner CHH or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner CHH or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response shall be provided in accordance with the provisions of Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice or Change Directive or otherwise, will be an Owner a CHH cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner CHH and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner CHH acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(c) An acceptable resolution to a Design Issue shall be a resolution that (i) in all respects is consistent with the design intent and quality standards of the Contract Documents; (ii) will not interfere with the efficient operations of OwnerCHH; and (iii) will not increase the life cycle costs of the Facility. If the resolution to a Design Issue proposed by the Consultant is of a higher quality, not consistent with the design intent and quality standards of the Contract Documents, Project Co will, subject to and in accordance with Schedule 11 – Change Procedure, be entitled to a Change in the Scope of the Work.
(d) If either Owner or Project Co is of the view that a Design Issue is not properly characterized by the Consultant or does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, and such issues will be determined in accordance with Schedule 14 – Dispute Resolution Procedure. Project Co acknowledges that notwithstanding any such dispute, the Consultant may issue a Supplemental Instruction to Project Co for a resolution to the Design Issue and Project Co shall proceed to implement such resolution to the Design Issue in accordance with the Supplemental Instruction issued by the Consultant, pending resolution of the dispute and subject to Section 1.3 of Schedule 14 – Dispute Resolution Procedure.
(e) The Project Co Design Contingency is included in the Cost of the Work and the Guaranteed Price and Project Co is solely responsible for all costs to remedy all Design Issues that are properly characterized as Project Co Design Issues, and Project Co will not be entitled to any additional compensation or change in the Contract Time with respect to any and all Design Issues that are properly characterized as Project Co Design Issues, subject, in each case, to Section 11.18(c), and to the responsibility of Owner, at Owner’s cost, for the provision of professional design services as specifically provided in Sections 11.18(a) and 11.18(b). Subject to the preceding sentence, and notwithstanding anything to the contrary in this Project Agreement, Project Co acknowledges and agrees that it shall have no recourse against Owner in respect of any Project Co Design Contingency or any costs directly or indirectly arising out of a Design Issue that is properly characterized as a Project Co Design Issue. Project Co is not accountable to Owner for the expenditure of the amount Project Co has carried as the Project Co Design Contingency and Owner has no entitlement to claimthe unused portion, if any, of the Project Co Design Contingency. Payment of the Guaranteed Price to Project Co (which, for greater certainty, shall include any unused portion of the Project Co Design Contingency) shall fully satisfy Project Co in respect of its costs to carry the Project Co Design Contingency and all costs of Project Co to remedy all Design Issues that are properly characterized as Project Co Design Issues. Further to and without limiting the foregoing, but, subject to the limitations set out in Section 34.2(b), Project Co acknowledges and agrees that it shall have no recourse against the Consultant in respect of any Design Issue, except for claims arising in relation to the professional negligence or errors and omissions of the Consultant.
(f) Project Co shall provide the Consultant, Owner and Owner’s Project Manager with a detailed weekly update report in form and substance satisfactory to the Consultant and Owner, on the status of all outstanding Design Issues.and
Appears in 1 contract
Samples: Project Agreement
Procedure for Addressing Design Issues.
(a) When Project Co identifies a Design Issue, Project Co shall promptly notify the Consultant in writing, under a request for information, of such Design Issue and may propose a resolution to the Design Issue. Upon receipt of Project Co’s notification and proposed resolution, if any, the Consultant shall:shall:
(i) if a proposed resolution is provided by Project Co, proceed to review the proposed resolution and either:
(A) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(B) reject the proposed resolution and request that additional information be provided or request that an alternative resolution be proposed by Project Co; or
(C) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution;
(ii) if no resolution is proposed by Project Co, provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner STEGH issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner STEGH or Project Co is of the view that the Design Issue is not properly characterized by the Consultant, or if either Owner STEGH or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, then either Owner STEGH or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response to any Design Issue will be provided in accordance with Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice, Change Directive or otherwise, will be an Owner a STEGH cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner STEGH and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner STEGH acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(b) When the Consultant identifies a Design Issue, the Consultant shall promptly notify Project Co of such Design Issue in writing as a Supplemental Instruction or by providing a Contemplated Change Notice or a Change Directive, as applicable in the circumstances. If issued as a Supplemental Instruction, Project Co may review the Design Issue and propose an alternative resolution to the Consultant. Upon receipt of Project Co’s proposed alternative resolution, the Consultant shall proceed to review the proposed alternative resolution and either:either:
(i) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(ii) reject the proposed resolution, request that additional information be provided or request a further alternative resolution be proposed by Project Co; or
(iii) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner STEGH issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner STEGH or Project Co is of the view that the Design Issue is not properly characterized by the Consultant or if either Owner STEGH or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner STEGH or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response shall be provided in accordance with the provisions of Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice or Change Directive or otherwise, will be an Owner a STEGH cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner STEGH and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner STEGH acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(c) An acceptable resolution to a Design Issue shall be a resolution that (i) in all respects is consistent with the design intent and quality standards of the Contract Documents; (ii) will not interfere with the efficient operations of OwnerSTEGH; and (iii) will not increase the life cycle costs of the Facility. If the resolution to a Design Issue proposed by the Consultant is of a higher quality, not consistent with the design intent and quality standards of the Contract Documents, Project Co will, subject to and in accordance with Schedule 11 – Change Procedure, be entitled to a Change in the Scope of the Work.
(d) If either Owner or Project Co is of the view that a Design Issue is not properly characterized by the Consultant or does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, and such issues will be determined in accordance with Schedule 14 – Dispute Resolution Procedure. Project Co acknowledges that notwithstanding any such dispute, the Consultant may issue a Supplemental Instruction to Project Co for a resolution to the Design Issue and Project Co shall proceed to implement such resolution to the Design Issue in accordance with the Supplemental Instruction issued by the Consultant, pending resolution of the dispute and subject to Section 1.3 of Schedule 14 – Dispute Resolution Procedure.
(e) The Project Co Design Contingency is included in the Cost of the Work and the Guaranteed Price and Project Co is solely responsible for all costs to remedy all Design Issues that are properly characterized as Project Co Design Issues, and Project Co will not be entitled to any additional compensation or change in the Contract Time with respect to any and all Design Issues that are properly characterized as Project Co Design Issues, subject, in each case, to Section 11.18(c), and to the responsibility of Owner, at Owner’s cost, for the provision of professional design services as specifically provided in Sections 11.18(a) and 11.18(b). Subject to the preceding sentence, and notwithstanding anything to the contrary in this Project Agreement, Project Co acknowledges and agrees that it shall have no recourse against Owner in respect of any Project Co Design Contingency or any costs directly or indirectly arising out of a Design Issue that is properly characterized as a Project Co Design Issue. Project Co is not accountable to Owner for the expenditure of the amount Project Co has carried as the Project Co Design Contingency and Owner has no entitlement to claimthe unused portion, if any, of the Project Co Design Contingency. Payment of the Guaranteed Price to Project Co (which, for greater certainty, shall include any unused portion of the Project Co Design Contingency) shall fully satisfy Project Co in respect of its costs to carry the Project Co Design Contingency and all costs of Project Co to remedy all Design Issues that are properly characterized as Project Co Design Issues. Further to and without limiting the foregoing, but, subject to the limitations set out in Section 34.2(b), Project Co acknowledges and agrees that it shall have no recourse against the Consultant in respect of any Design Issue, except for claims arising in relation to the professional negligence or errors and omissions of the Consultant.
(f) Project Co shall provide the Consultant, Owner and Owner’s Project Manager with a detailed weekly update report in form and substance satisfactory to the Consultant and Owner, on the status of all outstanding Design Issues.and
Appears in 1 contract
Samples: Project Agreement
Procedure for Addressing Design Issues.
(a) When Project Co identifies a Design Issue, Project Co shall promptly notify the Consultant in writing, under a request for information, of such Design Issue and may propose a resolution to the Design Issue. Upon receipt of Project Co’s notification and proposed resolution, if any, the Consultant shall:shall:
(i) if a proposed resolution is provided by Project Co, proceed to review the proposed resolution and either:
(A) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(B) reject the proposed resolution and request that additional information be provided or request that an alternative resolution be proposed by Project Co; or
(C) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution;
(ii) if no resolution is proposed by Project Co, provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner THP issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner THP or Project Co is of the view that the Design Issue is not properly characterized by the Consultant, or if either Owner THP or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, then either Owner THP or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response to any Design Issue will be provided in accordance with Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice, Change Directive or otherwise, will be an Owner a THP cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner THP and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner THP acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(b) When the Consultant identifies a Design Issue, the Consultant shall promptly notify Project Co of such Design Issue in writing as a Supplemental Instruction or by providing a Contemplated Change Notice or a Change Directive, as applicable in the circumstances. If issued as a Supplemental Instruction, Project Co may may review the Design Issue and propose an alternative resolution to the Consultant. Upon receipt of Project Co’s proposed alternative resolution, the Consultant shall proceed to review the proposed alternative resolution and either:
(i) confirm that such resolution is acceptable (and a resolution will be considered acceptable if such resolution meets the requirements of the first sentence of Section 11.18(c));
(ii) reject the proposed resolution, request that additional information be provided or request a further alternative resolution be proposed by Project Co; or
(iii) reject the proposed resolution and provide instructions to Project Co setting out an acceptable resolution. As soon as the Consultant has confirmed to Project Co an acceptable resolution to the Design Issue, Project Co shall proceed to implement such acceptable resolution. If the Consultant characterizes the Design Issue as a Project Co Design Issue, the Consultant shall issue a Supplemental Instruction and the cost, if any, of implementing the acceptable resolution to the Design Issue shall form part of the Project Co Design Contingency. If the Consultant characterizes the Design Issue as a matter that is not a Project Co Design Issue, the Consultant shall request that Owner THP issue a Contemplated Change Notice or a Change Directive, as applicable in the circumstances, and the cost, if any, of implementing the acceptable resolution to the Design Issue and the additional time, if any, required to implement the acceptable resolution to the Design Issue shall be documented in a Change Order. If either Owner THP or Project Co is of the view that the Design Issue is not properly characterized by the Consultant or if either Owner THP or Project Co does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner THP or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, pursuant to Section 11.18(d). The Consultant’s response shall be provided in accordance with the provisions of Section 8.2(i). Any professional design services of the Consultant, whether to issue the Supplemental Instruction, Contemplated Change Notice or Change Directive or otherwise, will be an Owner a THP cost. In assessing whether a Design Issue is properly characterized as a Project Co Design Issue, Owner THP and Project Co shall have regard to the Risk Assessment Guidelines. Project Co and Owner THP acknowledge that the Risk Assessment Guidelines are provided for information purposes only and are not complete or exhaustive.
(c) An acceptable resolution to a Design Issue shall be a resolution that (i) in all respects is consistent with the design intent and quality standards of the Contract Documents; (ii) will not interfere with the efficient operations of OwnerTHP; and (iii) will not increase the life cycle costs of the Facility. If the resolution to a Design Issue proposed by the Consultant is of a higher quality, not consistent with the design intent and quality standards of the Contract Documents, Project Co will, subject to and in accordance with Schedule 11 – Change Procedure, be entitled to a Change in the Scope of the Work.
(d) If either Owner or Project Co is of the view that a Design Issue is not properly characterized by the Consultant or does not agree with the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, either Owner or Project Co may dispute the characterization of the Design Issue or the Consultant’s decision regarding what constitutes an acceptable resolution to the Design Issue, and such issues will be determined in accordance with Schedule 14 – Dispute Resolution Procedure. Project Co acknowledges that notwithstanding any such dispute, the Consultant may issue a Supplemental Instruction to Project Co for a resolution to the Design Issue and Project Co shall proceed to implement such resolution to the Design Issue in accordance with the Supplemental Instruction issued by the Consultant, pending resolution of the dispute and subject to Section 1.3 of Schedule 14 – Dispute Resolution Procedure.
(e) The Project Co Design Contingency is included in the Cost of the Work and the Guaranteed Price and Project Co is solely responsible for all costs to remedy all Design Issues that are properly characterized as Project Co Design Issues, and Project Co will not be entitled to any additional compensation or change in the Contract Time with respect to any and all Design Issues that are properly characterized as Project Co Design Issues, subject, in each case, to Section 11.18(c), and to the responsibility of Owner, at Owner’s cost, for the provision of professional design services as specifically provided in Sections 11.18(a) and 11.18(b). Subject to the preceding sentence, and notwithstanding anything to the contrary in this Project Agreement, Project Co acknowledges and agrees that it shall have no recourse against Owner in respect of any Project Co Design Contingency or any costs directly or indirectly arising out of a Design Issue that is properly characterized as a Project Co Design Issue. Project Co is not accountable to Owner for the expenditure of the amount Project Co has carried as the Project Co Design Contingency and Owner has no entitlement to claimthe unused portion, if any, of the Project Co Design Contingency. Payment of the Guaranteed Price to Project Co (which, for greater certainty, shall include any unused portion of the Project Co Design Contingency) shall fully satisfy Project Co in respect of its costs to carry the Project Co Design Contingency and all costs of Project Co to remedy all Design Issues that are properly characterized as Project Co Design Issues. Further to and without limiting the foregoing, but, subject to the limitations set out in Section 34.2(b), Project Co acknowledges and agrees that it shall have no recourse against the Consultant in respect of any Design Issue, except for claims arising in relation to the professional negligence or errors and omissions of the Consultant.
(f) Project Co shall provide the Consultant, Owner and Owner’s Project Manager with a detailed weekly update report in form and substance satisfactory to the Consultant and Owner, on the status of all outstanding Design Issues.and
Appears in 1 contract
Samples: Project Agreement
