REFUND THE MISTAKEN AMOUNT TO
THE PAYING PARTY.
WITHOUT LIMITING THE PRECEDING SENTENCE, AND IN ADDITION TO
ANY OTHER REMEDY AVAILABLE TO OWNER UNDER THIS AGREEMENT, IF OWNER DISCOVERS
THAT ANY AMOUNT PAID BY IT TO CONTRACTOR IN A PRECEDING MONTH WAS INCORRECT,
THEN OWNER MAY, AT ITS SOLE DISCRETION, UPON GIVING CONTRACTOR TEN (10) DAYS'
PRIOR WRITTEN NOTICE IN ACCORDANCE WITH SECTION 7.8, EITHER: (I) OFFSET SUCH
AMOUNT AGAINST FUTURE PAYMENTS, OR (II) IN THE EVENT THAT (A) THE AMOUNT IN
QUESTION EXCEEDS THREE MILLION U.S. DOLLARS (U.S.$3,000,000) OR (B) LESS THAN
THREE MILLION U.S. DOLLARS (U.S.$3,000,000) REMAINS PAYABLE TO CONTRACTOR UNDER
THIS AGREEMENT, OR AMOUNTS ARE DUE TO OWNER IN CONNECTION WITH THE FINAL INVOICE
ISSUED IN ACCORDANCE WITH SECTION 7.3, COLLECT ON THE LETTER OF CREDIT FOR SUCH
AMOUNTS UNTIL SUFFICIENT AND ACCURATE SUPPORTING INFORMATION IS PROVIDED
PURSUANT TO SECTION 7.2.
THE FOREGOING PROVISION SHALL NOT APPLY DURING THE
DEFECT CORRECTION PERIOD.
Article 8
TITLE AND RISK OF LOSS
8.1
TITLE.
A.
CLEAR TITLE.
1.
CONTRACTOR WARRANTS AND GUARANTEES THAT
OWNER SHALL HAVE LEGAL TITLE TO AND OWNERSHIP OF ALL OR ANY PORTION OF THE WORK
(OTHER THAN WORK PRODUCT) AND THE FACILITY UPON PAYMENT THEREFOR.
2.
CONTRACTOR WARRANTS AND GUARANTEES THAT
LEGAL TITLE TO AND OWNERSHIP OF THE WORK AND THE FACILITY SHALL BE FREE AND
CLEAR OF ANY AND ALL LIENS, CLAIMS, SECURITY INTERESTS OR OTHER ENCUMBRANCES
ARISING OUT OF THE WORK WHEN TITLE THERETO PASSES TO OWNER, AND IF ANY SUCH
WARRANTY OR GUARANTEE IS BREACHED, CONTRACTOR SHALL HAVE THE LIABILITY AND
OBLIGATIONS SET FORTH IN SECTION 17.5.
B.
TITLE TO WORK.
TITLE TO ALL OR ANY
PORTION OF THE WORK (OTHER THAN WORK PRODUCT) SHALL PASS TO OWNER UPON PAYMENT
BY OWNER THEREFOR.
TRANSFER OF TITLE TO WORK SHALL BE WITHOUT PREJUDICE TO
OWNER'S RIGHT TO REJECT DEFECTIVE WORK, OR ANY OTHER RIGHT IN THIS AGREEMENT.
8.2
RISK OF LOSS.
A.
NOTWITHSTANDING PASSAGE OF TITLE AS
PROVIDED IN SECTION 8.1 OF THIS AGREEMENT, CONTRACTOR SHALL BEAR THE RISK OF
PHYSICAL LOSS AND DAMAGE WITH RESPECT TO THE FACILITY AND THE WORK UNTIL THE
EARLIER OF SUBSTANTIAL COMPLETION OR TERMINATION OF THIS AGREEMENT; PROVIDED
THAT OWNER SHALL AT ALL TIMES BEAR THE RISK OF PHYSICAL LOSS AND DAMAGE IF AND
TO THE EXTENT ARISING FROM (I) WAR (WHETHER DECLARED OR UNDECLARED), CIVIL WAR,
ACT OF TERRORISM, SABOTAGE, BLOCKADE, INSURRECTION; OR (II) IONIZING RADIATION,
OR CONTAMINATION BY RADIOACTIVITY FROM NUCLEAR FUEL, OR FROM ANY NUCLEAR WASTE
FROM THE
56
COMBUSTION OF NUCLEAR FUEL PROPERTIES OF ANY EXPLOSIVE NUCLEAR ASSEMBLY OR
NUCLEAR COMPONENT THEREOF.
IN THE EVENT THAT ANY PHYSICAL LOSS OR DAMAGE TO
THE FACILITY OR THE WORK ARISES FROM ONE OR MORE OF THE EVENTS SET FORTH IN THE
PRECEDING SENTENCE, AND OWNER ELECTS TO REBUILD SUCH PHYSICAL LOSS OR DAMAGE,
CONTRACTOR SHALL BE ENTITLED TO A CHANGE ORDER TO THE EXTENT SUCH EVENT
ADVERSELY AFFECTS (I) CONTRACTOR'S COSTS OF PERFORMANCE OF THE WORK; (II)
CONTRACTOR'S ABILITY TO PERFORM THE WORK IN ACCORDANCE