Common use of Acceptance Test Capacity Guarantee Clause in Contracts

Acceptance Test Capacity Guarantee. At the end of Acceptance Testing Period under Section 11.2.3, the Facility shall have demonstrated the capability to produce the following: (a) 20,000 tons (which is equal to 12,000 British Thermal Units per hour) of chilled water (the “Promised Chilled Water Capacity”); and (b) 400,000 lbs/hour of steam (the “Promised Steam Capacity”) based upon the Acceptance Testing results. MGE Construct hereby guarantees that the Facility shall provide not less than ninety-seven percent (97%) of the Promised Chilled Water Capacity and the Promised Steam Capacity by the end of the Acceptance Testing Period (the “Acceptance Test Capacity Guarantee”). MGE Construct and the Testing Engineer shall be entitled to conduct and verify satisfaction of the Acceptance Tests in stages and in such order as may be appropriate given the available testing conditions, including, without limitation, separating the Acceptance Tests to demonstrate steam capacity from the Acceptance Tests to demonstrate chilled water capacity. In the event that the Facility fails to meet the Acceptance Test Capacity Guarantee, the following shall apply: 11.3.1 If either the actual tested steam capacity or the actual tested chilled water capacity of the Facility is less than 97% but greater than 90% of the Promised Steam Capacity or Promised Chilled Water Capacity (the “Minimum Required Capacity”), MGE Construct may, at its sole option, elect to either (i) make (or cause to be made) the modifications, improvements, redesign, repairs or reconstruction (“Remedial Measures”) necessary to cause the Facility to meet the Acceptance Test Capacity Guarantee as evidenced by repeat Acceptance Tests; or (ii) pay liquidated damages to the State as follows: For each 0.1% below 97% of the Promised Chilled Water Capacity, the liquidated damages shall be $45,000. For each 0.1% below 97% of the Promised Steam Capacity, the liquidated damages shall be $35,000. MGE Construct’s obligations under this Section to undertake Remedial Measures and/or pay liquidated damages shall be counted toward and subject to the Damages Cap set forth in Section 11.10. 11.3.2 If the actual tested steam capacity or the actual tested chilled water capacity of the Facility is less than the Minimum Required Capacity, MGE Construct shall conduct Remedial Measures until the earlier in time to occur of the following: (a) the actual tested steam capacity or the actual tested chilled water capacity, as the case may be, of the Facility is at least equal to the Minimum Required Capacity; or (b) MGE Construct reaches the Damages Cap set forth in Section 11.10. 11.3.3 The highest level of steam production capacity demonstrated at the Facility during Acceptance Testing, following any Remedial Measures, if applicable, shall be the “Steam Capacity Baseline” for purposes of the O & M Agreement. The highest level of chilled water production capacity demonstrated at the Facility during Acceptance Testing, following any Remedial Measures, if applicable, shall be the “Chilled Water Capacity Baseline” for purposes of the O & M Agreement. Notwithstanding anything in this Section to the contrary, in no event shall (a) the Steam Capacity Baseline exceed the Promised Steam Capacity; or (b) the Chilled Water Capacity Baseline exceed the Promised Chilled Water Capacity.

Acceptance Test Capacity Guarantee. At the end of Acceptance Testing Period under Section 11.2.3, the Facility shall have demonstrated the capability to produce the following: (a) 20,000 tons (which is equal 7.0 MW-DC, subject to 12,000 British Thermal Units per hour) of chilled water (the “Promised Chilled Water Capacity”); and (b) 400,000 lbs/hour of steam (the “Promised Steam Capacity”) final as-build system size, based upon the Acceptance Testing results. MGE Construct Contractor hereby guarantees that the Facility shall provide perform at not less than ninety-seven percent (97%) % of the Promised Chilled Water Capacity and the Promised Steam Capacity by the end of the Acceptance Testing Period (the “Acceptance Test Capacity Guarantee”). MGE Construct Contractor and the Testing Engineer shall be entitled to conduct and verify satisfaction of the Acceptance Tests in stages and in such order as may be appropriate given the available testing conditions, including, without limitation, separating the Acceptance Tests to demonstrate steam capacity from the Acceptance Tests to demonstrate chilled water capacity. In the event that the Facility fails to meet the Acceptance Test Capacity Guarantee, the following shall apply: 11.3.1 If either the actual tested steam capacity or the actual tested chilled water capacity of the Facility performance is less than 97% [REDACTED: Percentage] but greater than 90% [REDACTED: Percentage] of the Promised Steam Capacity or Promised Chilled Water Capacity (the “Minimum Required Capacity”), MGE Construct may, at its sole option, elect to either (i) Contractor will make (or cause to be made) the modifications, improvements, redesign, repairs or reconstruction (“Remedial Measures”) necessary to cause the Facility to meet the Acceptance Test Capacity Guarantee as evidenced by repeat Acceptance Tests; or (ii) pay liquidated damages to the State as follows: For each 0.1% below 97% of the Promised Chilled Water Capacity, the liquidated damages shall be $45,000. For each 0.1% below 97% of the Promised Steam Capacity, the liquidated damages shall be $35,000. MGE ConstructContractor’s obligations under this Section to undertake Remedial Measures and/or pay liquidated damages shall be counted toward and subject to the Damages Cap set forth in Section 11.10. 11.3.2 If the actual tested steam capacity or the actual tested chilled water capacity of the Facility is less than the Minimum Required Capacity, MGE Construct Contractor shall conduct Remedial Measures until the earlier in time to occur of the following: (a) the actual tested steam capacity or the actual tested chilled water capacity, as the case may be, of the Facility is at least equal to the Minimum Required Capacity; or (b) MGE Construct Contractor reaches the Damages Cap set forth in Section 11.1011.9. 11.3.3 The highest level of steam production capacity demonstrated at the Facility during Acceptance Testing, following any Remedial Measures, if applicable, shall be the “Steam Capacity Baseline” for purposes of the O & M Agreement. The highest level of chilled water production capacity demonstrated at the Facility during Acceptance Testing, following any Remedial Measures, if applicable, shall be the “Chilled Water Capacity Baseline” for purposes of the O & M Agreement. Notwithstanding anything in this Section to the contrary, in no event shall (a) the Steam Capacity Baseline exceed the Promised Steam Capacity; or (b) the Chilled Water Capacity Baseline exceed the Promised Chilled Water Capacity.

Acceptance Test Capacity Guarantee. At the end of Acceptance Testing Period under Section 11.2.310.2.3, the Facility each Plant shall have demonstrated the capability to produce the following: (a) 20,000 tons (which is equal to 12,000 British Thermal Units per hour) 10.2 MWh of chilled water gross electric energy capacity (the “Promised Chilled Water Capacity”); and (b) 400,000 lbs/hour of steam (the “Promised Steam Capacitypromised electric energy capacity”) based upon the Acceptance Testing resultsResults. MGE Construct The CONTRACTOR hereby guarantees that the Facility Plant shall provide not less than ninety-seven percent (97%) of the Promised Chilled Water Capacity and the Promised Steam Capacity promised electric energy capacity by the end of the Acceptance Testing Period (the “Acceptance Test Capacity Guarantee”). MGE Construct The CONTRACTOR and the Testing Engineer shall be entitled to conduct and verify satisfaction of the Acceptance Tests in stages and in such order as may be appropriate given the available testing conditions, including, without limitation, separating the Acceptance Tests to demonstrate steam capacity from the Acceptance Tests to demonstrate chilled water capacity. In the event that the Facility fails to meet the Acceptance Test Capacity Guarantee, the following shall apply: 11.3.1 10.3.1 If either the actual tested steam capacity or the actual tested chilled water electric energy capacity of the Facility a Plant is less than 97% but greater than 90% of the Promised Steam Capacity or Promised Chilled Water Capacity promised electric energy capacity (the “Minimum Required Capacity”), MGE Construct the CONTRACTOR may, at its sole option, elect to either (i) make (or cause to be made) the modifications, improvements, redesign, repairs or reconstruction (“Remedial Measures”) necessary to cause the Facility Plant to meet the Acceptance Test Capacity Guarantee as evidenced by repeat Acceptance Tests; or (ii) pay liquidated damages to the State PROJECT COMPANY as follows: For each 0.1% below 97% of the Promised Chilled Water Capacitypromised electric energy capacity, the liquidated damages shall be $US$45,000. For each 0.1% below 97% of the Promised Steam Capacity, the liquidated damages shall be $35,000. MGE ConstructThe Contractor’s obligations under this Section to undertake Remedial Measures and/or pay liquidated damages shall be counted toward and subject to the Damages Cap set forth in Section 11.1010.10. 11.3.2 10.3.2 If the actual tested steam capacity or the actual tested chilled water electric energy capacity of the Facility a Plant is less than the Minimum Required Capacity, MGE Construct the CONTRACTOR shall conduct Remedial Measures until the earlier in time to occur of the following: (a) the actual tested steam capacity or the actual tested chilled water electric energy capacity, as the case may be, of the Facility a Plant is at least equal to the Minimum Required Capacity; or (b) MGE Construct the CONTRACTOR reaches the Damages Cap set forth in Section 11.1010.10. 11.3.3 The highest level of steam production capacity demonstrated at the Facility during Acceptance Testing, following any Remedial Measures, if applicable, shall be the “Steam Capacity Baseline” for purposes 10.3.3 Foregoing liquidated damages are sole and exclusive remedy of the O & M Agreement. The highest level of chilled water production capacity demonstrated at PROJECT COMPANY for the Facility during Acceptance Testing, following any Remedial Measures, if applicable, shall be the “Chilled Water Capacity Baseline” for purposes failure of the O & M Agreement. Notwithstanding anything in this Section CONTRACTOR to meet the contrary, in no event shall (a) the Steam Acceptance Test Capacity Baseline exceed the Promised Steam Capacity; or (b) the Chilled Water Capacity Baseline exceed the Promised Chilled Water CapacityGuarantee.

Acceptance Test Capacity Guarantee. At the end of Acceptance Testing Period under Section 11.2.3, the Facility shall have demonstrated the capability to produce the following: (a) 20,000 tons (which is equal to 12,000 British Thermal Units per hour) [Specification of chilled water (the “Promised Chilled Water Capacity”); and (b) 400,000 lbs/hour performance standard for production of steam (the “Promised Steam Capacity”) electricity], based upon the Acceptance Testing results. MGE Construct Contractor hereby guarantees that the Facility shall provide perform at not less than ninety-seven percent (97%) % of the Promised Chilled Water Capacity and the Promised Steam Capacity by the end of the Acceptance Testing Period (the “Acceptance Test Capacity Guarantee”). MGE Construct Contractor and the Testing Engineer shall be entitled to conduct and verify satisfaction of the Acceptance Tests in stages and in such order as may be appropriate given the available testing conditions, including, without limitation, separating the Acceptance Tests to demonstrate steam capacity from the Acceptance Tests to demonstrate chilled water capacity. In the event that the Facility fails to meet the Acceptance Test Capacity Guarantee, the following shall apply: 11.3.1 If either the actual tested steam capacity or the actual tested chilled water capacity of the Facility performance is less than 97% but greater than 90% of the Promised Steam Capacity or Promised Chilled Water Capacity (the “Minimum Required Capacity”), MGE Construct Contractor may, at its sole option, elect to either (i) make (or cause to be made) the modifications, improvements, redesign, repairs or reconstruction (“Remedial Measures”) necessary to cause the Facility to meet the Acceptance Test Capacity Guarantee as evidenced by repeat Acceptance Tests; or (ii) pay liquidated damages to the State Owner as follows: For each 0.1% below 97% of the Promised Chilled Water Capacity, the liquidated damages shall be $45,000[Liquidated damages amount] . For each 0.1% below 97% of the Promised Steam Capacity, the liquidated damages shall be $35,000. MGE ConstructContractor’s obligations under this Section to undertake Remedial Measures and/or pay liquidated damages shall be counted toward and subject to the Damages Cap set forth in Section 11.10. 11.3.2 If the actual tested steam capacity or the actual tested chilled water capacity of the Facility is less than the Minimum Required Capacity, MGE Construct Contractor shall conduct Remedial Measures until the earlier in time to occur of the following: (a) the actual tested steam capacity or the actual tested chilled water capacity, as the case may be, of the Facility is at least equal to the Minimum Required Capacity; or (b) MGE Construct Contractor reaches the Damages Cap set forth in Section 11.10. 11.3.3 The highest level of steam production capacity demonstrated at the Facility during Acceptance Testing, following any Remedial Measures, if applicable, shall be the “Steam Capacity Baseline” for purposes of the O & M Agreement. The highest level of chilled water production capacity demonstrated at the Facility during Acceptance Testing, following any Remedial Measures, if applicable, shall be the “Chilled Water Capacity Baseline” for purposes of the O & M Agreement. Notwithstanding anything in this Section to the contrary, in no event shall (a) the Steam Capacity Baseline exceed the Promised Steam Capacity; or (b) the Chilled Water Capacity Baseline exceed the Promised Chilled Water Capacity.