Common use of Third Party Engineer Clause in Contracts

Third Party Engineer. Disputes arising under subsections 2.6, 2.7, 9.5(b), 9.6, 10.1 and 17.4 of this Contract, or as otherwise specifically provided elsewhere in this Contract, or as otherwise mutually agreed by the Parties, are to be resolved by the Third Party Engineer in the manner provided in this subsection 23.3. The Vendor and the Buyer will first attempt to resolve the dispute through consultation and negotiation in good faith and in a spirit of mutual cooperation as provided in subsection 23.1 above. If those attempts fail, then either Party may submit its written notice to the other Party requesting that the dispute be resolved by the Third Party Engineer, in accordance with the merits of the dispute. If, within ten (10) Business Days after the receipt of such notice by the notified Party, the dispute is not resolved, the Owner will select one of the Third Party Engineers listed on Schedule 14 to render decision in the dispute. The Third Party Engineer will issue a written decision containing an explanation of how and why the decision was reached. The Third Party Engineer's decision will be final and binding, except with respect to any opinion that over the Term of the Contract will impact the losing Party in the amount of one million dollars ($1,000,000) or more. If within ten (10) Business Days following the issuance of any such opinion the Parties have not agreed to implement the terms of any such opinion that is not final, either Party may seek arbitration pursuant to the provisions of subsection 23.2 above. In such arbitration, either Party may introduce into evidence the opinion of the Third Party Engineer, but the arbitrator(s) must rule on all issues of the dispute on a de novo basis, except as to any facts or other matters set forth in the opinion and stipulated by both of the Parties. If none of the listed Third Party Engineers is available or if none accepts the assignment and the Parties cannot otherwise mutually agree to another Third Party Engineer, an experienced and reputable engineer (who is not employed by either Party or any of their Affiliates or affiliates) will be chosen by the then President of the Institute of Electrical and Electronic Engineers (or the Vice President, if the President is a present or former employee of any such entities) to serve as the Third Party Engineer for the purposes of resolving the dispute. Unless otherwise mutually agreed by the Parties, any Person who is an officer or employee, agent, Subcontractor or subcontractor of, or a technical consultant to, either Party will be automatically ineligible to be the Third Party Engineer. The costs of utilizing a Third Party Engineer to resolve disputes under this subsection 23.3 will be shared equally by both Parties.

Third Party Engineer. Disputes arising under subsections 2.6(a) If Seller and Xxxxxxxx are in dispute with respect to any matter addressed in Sections 2.2, 2.75.4, 9.5(b)Article IX, 9.6Section 10.2 or 10.3 and Seller and Xxxxxxxx do not resolve the dispute within seven (7) Days of Seller or Xxxxxxxx notifying the other Party in writing of the existence of such dispute, 10.1 a committee consisting of two officers of Seller and 17.4 two officers of this ContractXxxxxxxx shall meet and attempt in good faith to resolve such dispute. If such committee does not resolve the dispute within seven (7) Days following their initial meeting, or as otherwise specifically provided elsewhere in this Contract, or as otherwise mutually agreed then a single third party engineer (the "Third Party Engineer") shall be designated to consider and decide the issues raised by such dispute unless both Parties determine that further discussions by the Parties, committee are to be resolved by the merited. The selection of such Third Party Engineer shall be made from the list of engineers set forth in the manner provided in this subsection 23.3Appendix 7 hereto (as supplemented or otherwise modified from time to time pursuant to paragraphs (e) and (f) below). The Vendor and the Buyer will first attempt to resolve the dispute through consultation and negotiation in good faith and in a spirit of mutual cooperation as provided in subsection 23.1 above. If those attempts fail, then either Party may submit its written notice to the other Party requesting that the dispute be resolved by In selecting the Third Party Engineer, each Party (starting with Seller for the first dispute and alternating between Seller and Xxxxxxxx for each dispute thereafter) shall alternate in accordance with deleting one name from the merits list of engineers until only one such engineer shall remain, which remaining engineer shall be the Third Party Engineer. The Third Party Engineer shall be designated from such list not later than the third (3rd) Business Day following the expiration of the second seven (7) Day period described above and such designation shall become effective on the third (3rd) Business Day following such designation. Within ten (10) Business Days of the effectiveness of the designation of a Third Party Engineer, each of Seller and Xxxxxxxx shall submit to the Third Party Engineer a confidential notice (a "Position Notice") setting forth in detail such Party's position in respect of the issues in dispute. IfSuch Position Notice shall include supporting documentation, if appropriate. (b) The Third Party Engineer shall complete all proceedings and issue its decision with regard to the issues in dispute as promptly as reasonably possible, but in any event within ten (10) Business Days after of the receipt of date on which both Position Notices are submitted unless the Third Party Engineer reasonably determines that additional time is required in order to give adequate consideration to the issues raised. In such notice by case the notified PartyThird Party Engineer shall state in writing his reasons for believing that additional time is needed and shall specify the additional period required, which period shall not exceed ten (10) Days without Seller's and Xxxxxxxx' agreement. (c) In resolving a dispute, the dispute Third Party Engineer shall consider all facts and circumstances it deems reasonable given the nature of the dispute. (d) The Third Party Engineer shall choose either Seller's position or Xxxxxxxx' position as set forth in their respective Position Notices. If the Third Party Engineer determines that the position set forth in Seller's Position Notice is not resolvedcorrect, it shall so state and shall state the Owner will select one appropriate actions to be taken by Xxxxxxxx. In such case, Xxxxxxxx shall promptly take such action. If the Third Party Engineer determines that the position set forth in Xxxxxxxx' Position Notice is correct, he shall so state and shall state the appropriate actions to be taken by Seller. In such case, Seller shall promptly take such actions. The decision of the Third Party Engineers listed on Schedule 14 to render decision in the dispute. The Third Party Engineer will issue a written decision containing an explanation of how and why the decision was reached. The Third Party Engineer's decision will shall be final and binding, except with respect to any opinion that over the Term non-appealable. The Seller and Xxxxxxxx shall each bear one-half of the Contract will impact the losing Party in the amount of one million dollars ($1,000,000) or more. If within ten (10) Business Days following the issuance of any such opinion the Parties have not agreed to implement the terms of any such opinion that is not final, either Party may seek arbitration pursuant to the provisions of subsection 23.2 above. In such arbitration, either Party may introduce into evidence the opinion of the Third Party Engineer, but the arbitrator(s) must rule on all issues of the dispute on a de novo basis, except as to any facts or other matters set forth in the opinion and stipulated reasonable costs incurred by both of the Parties. If none of the listed Third Party Engineers is available or if none accepts the assignment and the Parties cannot otherwise mutually agree to another Third Party Engineer, an experienced and reputable engineer (who is not employed by either Party or any of their Affiliates or affiliates) will be chosen by the then President of the Institute of Electrical and Electronic Engineers (or the Vice President, if the President is a present or former employee of any such entities) to serve as the Third Party Engineer for in connection with a dispute under this Section 11.1. (e) The list of engineers referred to in paragraph (a) above shall contain qualified engineers with experience in the purposes design, operation and maintenance of resolving electric generating facilities. The initial such list shall be proposed by Seller no later than sixty (60) Days after the disputeExecution Date and upon agreement of the Parties shall be incorporated into this Agreement as Appendix 7. Unless otherwise mutually agreed A Party may at any time remove a particular engineer from the list by obtaining the other Party's reasonable consent to such removal. However, neither Party may remove a name or names from the list if such removal would leave the list without at least three (3) names after giving effect to any concurrent addition of names pursuant to paragraph (f) below. (f) During January of each year, each of Seller and Xxxxxxxx shall review the current list of Third Party Engineers and give notice to the other of any proposed additions to the list and any intended deletions. Intended deletions shall automatically become effective thirty (30) Days after notice is received by the Partiesother Party unless written objection is made by the other Party within such thirty (30) Days and provided that such deletions do not leave the list without at least three (3) names after giving effect to any concurrent addition of names pursuant to this paragraph (f). Proposed additions to the list shall automatically become effective thirty (30) Days after notice is received by the other Party unless written objection is made by such other Party within thirty (30) Days. By mutual agreement between Seller and Xxxxxxxx, any Person who is an officer a new name or employee, agent, Subcontractor or subcontractor of, or a technical consultant to, either Party will names may be automatically ineligible added to be the list of Third Party Engineer. The costs of utilizing a Third Party Engineer to resolve disputes under this subsection 23.3 will be shared equally by both PartiesEngineers at any time.

Third Party Engineer. Disputes arising under subsections 2.6, 2.7, -------------------- 9.5(b), 9.6, 10.1 and 17.4 of this Contract, or as otherwise specifically provided elsewhere in this Contract, or as otherwise mutually agreed by the Parties, are to be resolved by the Third Party Engineer in the manner provided in this subsection 23.3. The Vendor and the Buyer will first attempt to resolve the dispute through consultation and negotiation in good faith and in a spirit of mutual cooperation as provided in subsection 23.1 above. If those attempts fail, then either Party may submit its written notice to the other Party requesting that the dispute be resolved by the Third Party Engineer, in accordance with the merits of the dispute. If, within ten (10) Business Days after the receipt of such notice by the notified Party, the dispute is not resolved, the Owner will select one of the Third Party Engineers listed on Schedule 14 to render decision in the dispute. The Third Party Engineer will issue a written decision containing an explanation of how and why the decision was reached. The Third Party Engineer's decision will be final and binding, except with respect to any opinion that over the Term of the Contract will impact the losing Party in the amount of one million dollars ($1,000,000) or more. If within ten (10) Business Days following the issuance of any such opinion the Parties have not agreed to implement the terms of any such opinion that is not final, either Party may seek arbitration pursuant to the provisions of subsection 23.2 above. In such arbitration, either Party may introduce into evidence the opinion of the Third Party Engineer, but the arbitrator(s) must rule on all issues of the dispute on a de novo basis, except ------- as to any facts or other matters set forth in the opinion and stipulated by both of the Parties. If none of the listed Third Party Engineers is available or if none accepts the assignment and the Parties cannot otherwise mutually agree to another Third Party Engineer, an experienced and reputable engineer (who is not employed by either Party or any of their Affiliates or affiliates) will be chosen by the then President of the Institute of Electrical and Electronic Engineers (or the Vice President, if the President is a present or former employee of any such entities) to serve as the Third Party Engineer for the purposes of resolving the dispute. Unless otherwise mutually agreed by the Parties, any Person who is an officer or employee, agent, Subcontractor or subcontractor of, or a technical consultant to, either Party will be automatically ineligible to be the Third Party Engineer. The costs of utilizing a Third Party Engineer to resolve disputes under this subsection 23.3 will be shared equally by both Parties.