Common use of Substantial Completion of the Work Clause in Contracts

Substantial Completion of the Work. (a) The Work or designated portions thereof will not be considered Substantially Complete until (1) all Project systems have been accepted by the Owner’s Commissioning Agent, if applicable, and are functioning as designed and scheduled by Architect/Engineer, (2) all required governmental inspections and certification required therefor have been made and posted, (3) any required initial instruction of Owner's personnel in the operation of systems has been completed, and (4) all the finishes required therefor are in place. The only remaining Work shall be minor in nature, so that the Owner can occupy the applicable portion of the Project on that date, and the completion of the Work by the Contractor will not materially interfere with or hamper the Owner’s operations. As a further condition of Substantial Completion of the Work or designated portion thereof, the Contractor shall certify that all remaining Work with respect thereto will be completed within the time required for Final Completion. (b) When the Contractor considers that the Work, or a portion thereof which Owner agrees to accept separately, is Substantially Complete, the Contractor shall prepare for Project Manager’s and Architect/Engineer’s review and approval a comprehensive list of items to be completed or corrected as Punch List Work prior to final payment. (c) When the Contractor notifies the Project Manager in writing that it believes it has reached Substantial Completion, the Project Manager and/or Architect/Engineer will make an inspection by which it shall be determined whether the Work or a designated portion thereof has achieved Substantially Completion. If the inspection discloses any item, whether or not included on the Contractor's list of Punch List Work, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall, before requesting a Certificate of Substantial Completion, complete or correct such item upon notification by the Project Manager or Architect/Engineer. In such case, the Contractor shall then submit a request for another inspection by the Project Manager and/or Architect/Engineer to determine Substantial Completion. (d) When the Work or designated portion thereof has achieved Substantial Completion, the Architect/Engineer will prepare a Certificate of Substantial Completion as soon as reasonably practicable thereafter, establishing the date of Substantial Completion, as approved by Project Manager, and the responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the Date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. Warranties on any item, which is completed after the Substantial Completion date shall commence on the date of completion of such item. (e) Upon completion of the Certificate of Substantial Completion and consent of surety to partial release of retainage in the form of consent attached hereto as Exhibit 13, if any, the Owner may make partial payment of retainage as provided in Article 15.02. (f) The Contractor shall keep all required insurance in full force, and utilities on, until the Certificate of Substantial Completion is issued, and accepted by the Owner in writing, regardless of the stated date of Substantial Completion. Acceptance shall not be unreasonably withheld. The Contractor shall not be responsible for utility or insurance certificates in areas which have been accepted by the Owner. (g) As a further condition of Substantial Completion acceptance, the Contractor shall certify that all remaining Punch List Work will be completed within thirty (30) consecutive calendar days or at such earlier time as may be agreed upon as a condition of issuance of the completed Certificate of Substantial Completion. Notwithstanding the foregoing, the Owner may refuse to make payment on any Certificate of Substantial Completion or any Application for Payment (including, without limitation, the final Application for Payment) for any default of the Contractor. The Owner shall not be deemed in default by reason of withholding payment while any such defaults remain uncured.

Substantial Completion of the Work. (a) The Work or designated portions thereof will not Project Co shall deliver a notice to Owner and the Consultant at least 90 days prior to the date anticipated by Project Co to be considered Substantially Complete until (1) all the Substantial Completion Date. Project systems have been accepted Co acknowledges that Owner needs a minimum of 90 days notice prior to the anticipated Substantial Completion Date to prepare for Commissioning. Project Co shall advise Owner and the Consultant of any change in the anticipated date. Project Co shall, by the Ownerdate which is 20 days prior to the anticipated Substantial Completion Date as set out in Project Co’s Commissioning Agentnotice, if applicableprepare a list, in electronic format on software that identifies deficiencies by division, trade and are functioning as designed and scheduled by Architect/Engineerlocation (“Project Co’s Preliminary Minor Deficiencies List”) of Minor Deficiencies, (2) all required governmental inspections and certification required therefor have been made and posted, (3) any required initial instruction of Owner's personnel in the operation of systems has been completed, and (4) all the finishes required therefor are in place. The only remaining Work shall be minor in nature, so that the Owner can occupy the applicable portion including an estimate of the Project on that date, cost of and the completion time for rectifying such Minor Deficiencies. (b) Project Co shall reconfirm the anticipated Substantial Completion Date in a notice given to Owner and to the Consultant 20 days prior to the anticipated Substantial Completion Date which notice shall include a copy of Project Co’s Preliminary Minor Deficiencies List. Project Co shall plan for start up and verification of all systems to be completed no later than 7 days prior to the anticipated Substantial Completion Date. Project Co shall reconfirm the anticipated Substantial Completion Date and when Project Co is satisfied that it has completed all of the Work by requirements for Substantial Completion of the Contractor will not materially interfere with or hamper Work, Project Co shall apply to Owner and the Owner’s operations. As a further condition Consultant for certification of Substantial Completion of the Work or designated portion thereofin a notice to Owner and the Consultant by the date which is 10 days prior to the anticipated Substantial Completion Date. The Consultant shall in the next following 10 days, proceed to review and inspect the Contractor shall certify that all remaining Work for the purpose of: (i) confirming the achievement of Substantial Completion of the Work and providing its report with respect thereto will be completed within pursuant to Section 16.2(d); (ii) certifying substantial performance of the Work in accordance with the Construction Lien Act (Ontario) pursuant to Section 16.2(c); and (iii) taking into account Project Co’s Preliminary Minor Deficiencies List, preparing its own list of Minor Deficiencies (the “Minor Deficiencies List”) and its estimate of the cost of and the time required for Final Completion. (b) When rectifying the Contractor considers that Minor Deficiencies set out in the Work, or a portion thereof which Owner agrees to accept separately, is Substantially Complete, the Contractor shall prepare for Project Manager’s and Architect/Engineer’s review and approval a comprehensive list of items to be completed or corrected as Punch List Work prior to final paymentMinor Deficiencies List. (c) When the Contractor notifies the Project Manager in writing Consultant is satisfied that it believes it has reached Substantial Completion, the Project Manager and/or Architect/Engineer will make an inspection by which it shall be determined whether substantial performance of the Work or a designated portion thereof has achieved Substantially Completion. If the inspection discloses any item, whether or not included on the Contractor's list of Punch List Work, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended useConstruction Lien Act (Ontario) has been achieved, the Contractor shall, before requesting Consultant shall provide Project Co and Owner with a Certificate certificate of Substantial Completion, complete or correct such item upon notification by substantial performance in accordance with the Project Manager or Architect/Engineer. In such case, the Contractor shall then submit a request for another inspection by the Project Manager and/or Architect/Engineer to determine Substantial CompletionConstruction Lien Act (Ontario). (d) When the Consultant is satisfied that Substantial Completion of the Work or designated portion thereof has achieved Substantial Completionbeen achieved, the Architect/Engineer will prepare Consultant shall provide to Owner and to Project Co a Certificate of report confirming the Minor Deficiencies List and the date on which the Consultant determines that Substantial Completion as soon as reasonably practicable thereafter, establishing the date of Substantial Completion, as approved by Project Manager, and the responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage Work was achieved. Failure to the Work and insurance, and shall fix the time within which the Contractor shall finish all items include an item on the list accompanying Minor Deficiencies List does not alter the Certificate. Warranties required by responsibility of Project Co to complete the Contract Documents Work. (e) The Consultant shall commence on state the Substantial Completion Date as set out in its report delivered under Section 16.2(d) in a certificate. (f) The Consultant shall prepare the Minor Deficiencies List before a certificate of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. Warranties on any item, which is completed after the Substantial Completion date shall commence on the date of completion of such item. (e) Upon completion of the Certificate of Substantial Completion and consent of surety to partial release of retainage in the form of consent attached hereto as Exhibit 13, if any, the Owner may make partial payment of retainage as provided in Article 15.02. (f) The Contractor shall keep all required insurance in full force, and utilities on, until the Certificate of Substantial Completion is issued, and accepted by if the Owner certificate referred to in writingSection 16.2(c) has been issued, regardless then the Consultant shall not withhold the certificate of Substantial Completion of the stated date of Substantial Completion. Acceptance shall not be unreasonably withheld. The Contractor shall not be responsible for utility or insurance certificates in areas which have been accepted Work by the Ownerreason solely that there are such Minor Deficiencies. (g) As Project Co shall publish in a further condition construction trade newspaper in the area of the location of the Work, a copy of the certificate of substantial performance in accordance with the Construction Lien Act (Ontario) and Project Co shall provide suitable evidence of the publication to the Consultant and Owner. (h) Owner may withhold from the payment otherwise due on the Final Reimbursement Payment Date a holdback amount that is [REDACTED]% of the amount estimated by the Consultant for Owner to complete and rectify the Minor Deficiencies. The Consultant shall inspect the completion of the Minor Deficiencies and shall provide a monthly progress report to Owner describing the Minor Deficiencies which have been completed to the satisfaction of the Consultant, and Owner shall release from such holdback the amount of any holdback allocated to the Minor Deficiencies which have been completed. If, at any time after the 120 day period for completion of the Minor Deficiencies referred to in Section 4.2 of Schedule 18 – Payments And Holdbacks, any of the Minor Deficiencies are not completed in 10 Business Days following Project Co’s receipt of a written notice from Owner to correct the deficient work, or Project Co is not diligently working towards completion of the deficient work to the satisfaction of the Consultant, and unless Owner otherwise agrees, or the reasons for any delay are acceptable to Owner, or the delay is caused by Owner or an Owner Party, Owner may engage others to perform the work necessary to complete and rectify the Minor Deficiencies at the risk and cost of Project Co and Owner may deduct such cost from the holdback amount or any other amount remaining owing by Owner to Project Co. If the cost of completion and rectification of any Minor Deficiencies exceeds the amount held back by Owner, then Project Co shall reimburse Owner for all such excess costs. (i) Project Co shall assign to Owner and submit with the application for Substantial Completion acceptanceof the Work, all guaranties, warranties (whether from manufacturers, or Project Co Parties), certificates, preliminary testing and balancing reports, distribution system diagrams, maintenance and operation instructions, maintenance manuals and materials and any other materials or documentation required to be submitted under this Project Agreement and otherwise required for the proper use and operation of the Work (collectively, the Contractor “Project Deliverables”). If Project Co requests, Project Co and the Consultant shall, within 60 days following the request of Project Co, settle and agree upon a list specifying in reasonable detail the items to be assigned and submitted under the foregoing sentence. If Project Co is unable to provide any of the Project Deliverables for any reason, Project Co may submit a list of the outstanding Project Deliverables and if a delay in the delivery of such outstanding Project Deliverables will not impair the safety, security or health of the occupants of the Project, such outstanding Project Deliverables shall certify be included as Minor Deficiencies. Failure to submit any of the Project Deliverables that all remaining Punch List are required for the safe occupation and use of the Work will be completed within thirty (30) consecutive calendar days or at such earlier time and as may be agreed upon as a condition of issuance necessary for the security and health of the completed Certificate occupants of the Project, shall be grounds for the Consultant to reject Project Co’s application for Substantial CompletionCompletion of the Work. Notwithstanding For the foregoingpurposes of Section 16.2(h), and any holdback to be taken as contemplated thereunder, the Owner may refuse value of such outstanding Project Deliverables shall, without regard to the degree or quantum of such outstanding Project Deliverables, be set at $[REDACTED], provided that if there has been a holdback established on account of outstanding Phase 1 Deliverables under Section 16.1(f) and on the Final Reimbursement Payment Date such holdback amount has not been released then the holdback amount of $[REDACTED] set in respect to outstanding Project Deliverables shall be deemed included without duplication in the holdback on account of outstanding Phase 1 Deliverables under Section 16.1(f) and the provisions of Section 16.1(f) shall apply to such outstanding Project Deliverables mutatis mutandis. The assignment by Project Co of all guarantees and warranties shall expressly reserve the right of Project Co to make any claims under such guarantees and warranties for the repair or replacement of any Work and such assignment shall in no way prejudice any rights of or benefits accruing to Project Co pursuant to such guarantees and warranties. For greater certainty, nothing herein is intended to constitute a release or waiver of the obligation of Project Co to submit and assign (as applicable) to Owner all of the Project Deliverables. (j) The submission of an application for payment on any Certificate of upon Substantial Completion of the Work shall constitute a waiver by Project Co of all claims whatsoever against Owner under this Project Agreement, whether for a change in the Guaranteed Price, extension of the Contract Time or otherwise, except (i) those made in writing prior to Project Co’s application for payment upon Substantial Completion of the Work, and still unsettled; (ii) any third party claim which Project Co was not aware of at such time and with respect to which Project Co is entitled to indemnification from Owner in accordance with this Project Agreement; and (iii) subject to any subsequent waiver under Section 33.2, claims arising out of any act or omission of Owner or any Application for Payment (including, without limitation, Owner Party after the final Application for Payment) for any default date of the Contractorwaiver, and third-party claims arising after the date of the waiver. The Owner shall For greater certainty, for the purposes of clauses (i) and (ii) above, a third party claim does not be deemed in default include any claim by reason of withholding payment while any such defaults remain uncureda Project Co Party.

Substantial Completion of the Work. (a) The Work or designated portions thereof will not Project Co shall deliver a notice of the date anticipated to be considered Substantially Complete until (1) all the Substantial Completion Date to HMQ and the Consultant at least 90 days prior to the date anticipated by Project systems have been accepted Co to be the Substantial Completion Date. Project Co acknowledges that HMQ needs a minimum of 90 days notice prior to the anticipated Substantial Completion Date to prepare for Commissioning. Project Co shall advise HMQ and the Consultant of any change in the anticipated date. Project Co shall, by the Ownerdate which is 20 days prior to the anticipated Substantial Completion Date as set out in Project Co’s Commissioning Agentnotice, if applicableprepare a list, in electronic format on software that identifies deficiencies by division, trade and are functioning as designed and scheduled by Architect/Engineerlocation (“Project Co’s Preliminary Minor Deficiencies List”) of Minor Deficiencies, (2) all required governmental inspections and certification required therefor have been made and posted, (3) any required initial instruction of Owner's personnel in the operation of systems has been completed, and (4) all the finishes required therefor are in place. The only remaining Work shall be minor in nature, so that the Owner can occupy the applicable portion including an estimate of the Project on that date, cost of and the completion time for rectifying such Minor Deficiencies. (b) Project Co shall reconfirm the anticipated Substantial Completion Date in a notice given to HMQ and to the Consultant 20 days prior to the anticipated Substantial Completion Date which notice shall include a copy of Project Co’s Preliminary Minor Deficiencies List. Project Co shall plan for start up and verification of all systems to be completed no later than 7 days prior to the anticipated Substantial Completion Date. Project Co shall reconfirm the anticipated Substantial Completion Date and when Project Co is satisfied that it has completed all of the Work by requirements for Substantial Completion of the Contractor will not materially interfere with or hamper Work, Project Co shall apply to HMQ and the Owner’s operations. As a further condition Consultant for certification of Substantial Completion of the Work or designated portion thereofin a notice to HMQ and the Consultant by the date which is 10 days prior to the anticipated Substantial Completion Date. The Consultant shall in the next following 10 days, proceed to review and inspect the Contractor shall certify that all remaining Work for the purpose of: (i) confirming the achievement of Substantial Completion of the Work and providing its report with respect thereto will be completed within pursuant to Section 16.2(d); (ii) certifying substantial performance of the Work for such Project in accordance with the Construction Lien Act (Ontario) pursuant to Section 16.2(c); and (iii) taking into account Project Co’s Preliminary Minor Deficiencies List, preparing its own list of Minor Deficiencies (the “Minor Deficiencies List”) and its estimate of the cost of and the time required for Final Completion. (b) When rectifying the Contractor considers that Minor Deficiencies set out in the Work, or a portion thereof which Owner agrees to accept separately, is Substantially Complete, the Contractor shall prepare for Project Manager’s and Architect/Engineer’s review and approval a comprehensive list of items to be completed or corrected as Punch List Work prior to final paymentMinor Deficiencies List. (c) When the Contractor notifies the Project Manager in writing Consultant is satisfied that it believes it has reached Substantial Completion, the Project Manager and/or Architect/Engineer will make an inspection by which it shall be determined whether substantial performance of the Work or a designated portion thereof has achieved Substantially Completion. If the inspection discloses any item, whether or not included on the Contractor's list of Punch List Work, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended useConstruction Lien Act (Ontario) has been achieved, the Contractor shall, before requesting Consultant shall provide Project Co and HMQ with a Certificate certificate of Substantial Completion, complete or correct such item upon notification by substantial performance in accordance with the Project Manager or Architect/Engineer. In such case, the Contractor shall then submit a request for another inspection by the Project Manager and/or Architect/Engineer to determine Substantial CompletionConstruction Lien Act (Ontario). (d) When the Consultant is satisfied that Substantial Completion of the Work or designated portion thereof has achieved Substantial Completionbeen achieved, the Architect/Engineer will prepare Consultant shall provide to HMQ and to Project Co a Certificate of report confirming the Minor Deficiencies List and the date on which the Consultant determines that Substantial Completion as soon as reasonably practicable thereafter, establishing the date of Substantial Completion, as approved by Project Manager, and the responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage Work was achieved. Failure to the Work and insurance, and shall fix the time within which the Contractor shall finish all items include an item on the list accompanying Minor Deficiencies List does not alter the Certificate. Warranties required by responsibility of Project Co to complete the Contract Documents Work. (e) The Consultant shall commence on state the Substantial Completion Date as set out in its report delivered under Section 16.2(d) in a certificate. (f) The Consultant shall prepare the Minor Deficiencies List before a certificate of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. Warranties on any item, which is completed after the Substantial Completion date shall commence on the date of completion of such item. (e) Upon completion of the Certificate of Substantial Completion and consent of surety to partial release of retainage in the form of consent attached hereto as Exhibit 13, if any, the Owner may make partial payment of retainage as provided in Article 15.02. (f) The Contractor shall keep all required insurance in full force, and utilities on, until the Certificate of Substantial Completion is issued, and accepted by if the Owner certificate referred to in writingSection 16.2(c) has been issued, regardless then the Consultant shall not withhold the certificate of Substantial Completion of the stated date of Substantial Completion. Acceptance shall not be unreasonably withheld. The Contractor shall not be responsible for utility or insurance certificates in areas which have been accepted Work by the Ownerreason solely that there are such Minor Deficiencies. (g) As Project Co shall publish in a further condition construction trade newspaper in the area of the location of the Work, a copy of the certificate of substantial performance in accordance with the Construction Lien Act (Ontario) and Project Co shall provide suitable evidence of the publication to the Consultant and HMQ. (h) HMQ may withhold from the payment otherwise due on the Substantial Completion acceptancePayment Date a holdback amount that is [REDACTED]% of the amount estimated by the Consultant for HMQ to complete and rectify the Minor Deficiencies. The Consultant shall inspect the completion of the Minor Deficiencies and shall provide a monthly progress report to HMQ describing the Minor Deficiencies which have been completed to the satisfaction of the Consultant, and HMQ shall release from such holdback the amount of any holdback allocated to the Minor Deficiencies which have been completed. If, at any time after the 120 day period for completion of the Minor Deficiencies referred to in Section 4.2 of Schedule 18 – Payments And Holdbacks, any of the Minor Deficiencies are not completed in 10 Business Days following Project Co’s receipt of a written notice from HMQ to correct the deficient work, or Project Co is not diligently working towards completion of the deficient work to the satisfaction of the Consultant, and unless HMQ otherwise agrees, or the reasons for any delay are acceptable to HMQ, or the delay is caused by HMQ or an HMQ Party, HMQ may engage others to perform the work necessary to complete and rectify the Minor Deficiencies at the risk and cost of Project Co and HMQ may deduct such cost from the holdback amount or any other amount remaining owing by HMQ to Project Co. If the cost of completion and rectification of any Minor Deficiencies exceeds the amount held back by HMQ, then Project Co shall reimburse HMQ for all such excess costs. (i) Project Co shall assign to HMQ and submit with the application for Substantial Completion of the Work, all guarantees, warranties (whether from manufacturers, or Project Co Parties), certificates, preliminary testing and balancing reports, distribution system diagrams, maintenance and operation instructions, maintenance manuals and materials and any other materials or documentation required to be submitted under this Project Agreement and otherwise required for the proper use and operation of the Work for each Project (collectively, the Contractor “Project Deliverables”). If Project Co requests, Project Co and the Consultant shall, within 60 days following the request of Project Co, settle and agree upon a list specifying in reasonable detail the items to be assigned and submitted under the foregoing sentence. If Project Co is unable to provide any of the Project Deliverables for any reason, Project Co may submit a list of the outstanding Project Deliverables and if a delay in the delivery of such outstanding Project Deliverables will not impair the safety, security or health of the occupants of the Projects, such outstanding Project Deliverables shall certify be included as Minor Deficiencies. Failure to submit any of the Project Deliverables that all remaining Punch List are required for the safe occupation and use of the Work will be completed within thirty (30) consecutive calendar days or at such earlier time and as may be agreed upon as a condition of issuance necessary for the security and health of the completed Certificate occupants of the Projects, shall be grounds for the Consultant to reject Project Co’s application for Substantial CompletionCompletion of the Work. Notwithstanding For the foregoingpurposes of Section 16.2(h), and any holdback to be taken as contemplated thereunder, the Owner may refuse value of such outstanding Project Deliverables shall, without regard to the degree or quantum of such outstanding Project Deliverables, be set at $[REDACTED]. The assignment by Project Co of all guarantees and warranties shall expressly reserve the right of Project Co to make any claims under such guarantees and warranties for the repair or replacement of any Work and such assignment shall in no way prejudice any rights of or benefits accruing to Project Co pursuant to such guarantees and warranties. For greater certainty, nothing herein is intended to constitute a release or waiver of the obligation of Project Co to submit and assign (as applicable) to HMQ all of the Project Deliverables. (j) The submission of an application for payment on any Certificate of upon Substantial Completion of the Work shall constitute a waiver by Project Co of all claims whatsoever against HMQ under this Project Agreement, whether for a change in the Guaranteed Price, extension of the Contract Time or otherwise, except (i) those made in writing prior to Project Co’s application for payment upon Substantial Completion of the Work and still unsettled; (ii) any third party claim which Project Co was not aware of at such time and with respect to which Project Co is entitled to indemnification from HMQ in accordance with this Project Agreement; and (iii) subject to any subsequent waiver under Section 33.1, claims arising out of any act or omission of HMQ or any Application for Payment (including, without limitation, HMQ Party after the final Application for Payment) for any default date of the Contractorwaiver, and third-party claims arising after the date of the waiver. The Owner shall For greater certainty, for the purposes of clauses (i) and (ii) above, a third party claim does not be deemed in default include any claim by reason of withholding payment while any such defaults remain uncureda Project Co Party.