Common use of 5Failure to Achieve Project Capacity Clause in Contracts

5Failure to Achieve Project Capacity. In the event that on the Project COD Deadline, the In-Service Date has occurred but the Contract Capacity is less than the Project Capacity, Seller shall pay Liquidated Damages in the amount of one hundred fifty thousand dollars ($150,000), multiplied by the number of MW by which the Contract Capacity is below the Project Capacity less any Daily Delay Liquidated Damages previously paid by Seller (“Contract Capacity Buy-Down Liquidated Damages”). 3.1. 6Installation, Operation and Maintenance No later than the Effective Date, Seller shall proceed with engineering, construction and implementation of the Project using Prudent Utility Practices and in a manner that will allow for achievement of the In-Service Date by the Project COD Target Date Extended by entering into an engineering, procurement and construction contract (“EPC Contract”) with a contractor capable of executing the engineering, construction and implementation of the Project. Buyer shall have the right to review and provide comments to the EPC Contract prior to execution thereof by Xxxxxx. Seller shall be solely responsible for obtaining all Consents, the development, construction, installation, operation and maintenance of the Project, including provision of necessary workforce, equipment, spare parts and supplies. Seller shall maintain the Project in good operating condition in accordance with Prudent Utility Practices. Seller shall ensure that the Project and its provision of Products under this Agreement conforms to all applicable NYISO Rules, NERC requirements, all applicable rules for the Connecting Transmission Owner’s Electrical System, and the Operating Instructions. All Project facilities and interconnection facilities (for which Seller has responsibility to design under the Interconnection Agreement or hereunder) must be designed to withstand a Category 3 Storm with 130 mph winds and to elevate equipment to accommodate the one in FEMA 500-year flood zones standards applicable at the Execution Date. Subject to Section 4.5, Seller shall assure that the Project is qualified as an Installed Capacity Supplier. Seller shall reimburse Buyer for any charges or penalties imposed on Buyer by XXXXX due to Seller’s action or inaction. Seller shall coordinate with Buyer on maintenance procedures and schedules, and the scheduling of Planned Outages and Maintenance Outages of the Project. A Maintenance Outage, once scheduled, may be cancelled by Seller or deferred by Seller beyond the end of the next Weekend, but if deferred, must occur before the next Planned Outage. The number of Days allowed for Planned Outages and Maintenance Outages are set forth in APPENDIX 9: OPERATING LIMITS. Any Planned Outage and Maintenance Outage that exceed the number of Days set forth in APPENDIX 9: OPERATING LIMITS shall be deemed to be a Forced Outage, but only for such excess Days. Seller shall submit a plan detailing the Planned Outages for the two coming Calendar Years to Buyer on or before the date when such information is due to be submitted to the NYISO prior to each Calendar Year (the “Submission Date”) for Buyer’s review and approval, which shall not be unreasonably withheld or delayed and such approval shall be deemed given unless Seller receives written notice to the contrary within thirty (30) Days of its submission to Buyer. In no event shall Seller schedule a Planned Outage during the Summer Period. In the event a Planned Outage or Maintenance Outage is commenced and continuing, and a Forced Outage occurs, Seller shall promptly notify Buyer and such Outage shall be re-designated as a Forced Outage as of the date of the original Planned Outage or Maintenance Outages is first extended to the maximum extent permitted in accordance with NYISO Rules and APPENDIX 9: OPERATING LIMITS. Seller shall give Buyer prior written notice of any proposed change in the annual Planned Outage schedule consistent with the NYISO Rules set forth in the Outage Schedule Manual and any such change shall be subject to Buyer’s approval (in consultation with the Connecting Transmission Owner) which shall not be unreasonably withheld or delayed. Except as provided for in Section 3.23, Buyer shall not be permitted to make Dispatch requests for the Project or otherwise receive Delivered Energy from the Project during a Planned Outage or Maintenance Outage.