Common use of Capacity Adjustments Clause in Contracts

Capacity Adjustments. (i) The Initial Capacity Test shall be used to determine whether Seller has met the criteria to be declared Commercially Operable, which is a condition precedent to the occurrence of the Commercial Operation Date. The Seasonal Capacity Tests shall be used to determine whether the Units perform at the Design Capacity or Peak July Conditions, as applicable and to confirm and/or adjust (as appropriate) the Monthly Contract Capacities as follows. (ii) If the Tested Capacity of the Units during a Non-Summer Month adjusted to ISO Conditions is less than 98% of the Design Capacity or if the Tested Capacity of the Units during a Summer Month adjusted to Peak July Conditions is less than 98% of July Design Capacity, then, subject to Section 3.13(d)(iii), the Monthly Contract Capacities shall equal the Contract Capacities set forth in Appendix II as of the Execution Date after adjustment downward by a percentage equal to the positive percentage difference between the Tested Capacity, as adjusted to ISO Conditions or Peak July Conditions, as applicable, and the Design Capacity or July Design Capacity (respectively). If the Tested Capacity of the Units during a Non-Summer Month adjusted to ISO Conditions is 98% or more of the Design Capacity or the Tested Capacity of the Units during a Summer Month adjusted to Peak July Conditions is 98% of July Design Capacity (as applicable), then, subject to Section 3.13(d)(iii), the Monthly Contract Capacities shall be equal to the Contract Capacities set forth in Appendix II as of the Execution Date. Notwithstanding the foregoing sentence, but also subject to Section 3.13(d)(iii), if the Tested Capacity of the Unit exceeds the Design Capacity or the July Design Capacity, as applicable, then the Monthly Contract Capacities shall be equal to the Contract Capacities as set forth in Appendix II as of the Execution Date adjusted upward by a percentage equal to the lesser of (i) the positive percentage difference between the Tested Capacity, as adjusted to ISO Conditions or Peak July Conditions, as applicable, and the Design Capacity or July Design Capacity (respectively) and (ii) 2%. An example of the calculation of the capacity adjustments is provided in Appendix XIV. (iii) An adjustment to the Monthly Contract Capacities shall be effective as of the first day of the month following the month in which the Initial Capacity Test or Seasonal Capacity Test (as applicable) occurred. Notwithstanding any other provision of this Section 3.13(d), in any month in which the Monthly Contract Capacity of any Unit(s) as established pursuant to Section 3.13(d)(i), (ii), (iv) or (v) is less than the RA Capacity of such Unit(s), the Monthly Contract Capacity shall equal the RA Capacity. (iv) In the event that (1) as a result of a Seasonal Capacity Test the Monthly Contract Capacities are adjusted downward pursuant to Section 3.13(d)(ii), or the Actual Tested Heat Rate at Peak Load exceeds the Guaranteed Heat Rate Point at Peak Load by more than 4%, or (2) upon the completion of Scheduled Maintenance, Seller may request an additional Capacity Test (“Seller’s Capacity Test”) to be performed. A Seller’s Capacity Test must commence no later than ten (10) Business Days after completion of the Seasonal Capacity Test showing the low test results, the completion of the Scheduled Maintenance, or the completion of the remedial maintenance or repairs, which shall be performed in accordance with Section 3.10(e) or (f), as applicable, and shall be performed in accordance with the Test Procedures, except that (A) Seller shall provide Buyer with Notice of its request to test and the proposed starting and end times of the Seller’s Capacity Test no later than three Business Day before it commences; (B) Buyer shall evaluate Seller’s proposal and, in its sole discretion, either grant such request or identify two alternative start and stop times from which Seller may elect, and to which Buyer will consent; and (C) if performance of the Seller’s Capacity Test would require operation of the Units during hours other than when Scheduled Operations are occurring or require Start-Ups or Shut-Downs not required by Scheduled Operations, Buyer shall schedule the Unit with the CAISO (and such other Transmission Provider, if any, as applicable) accordingly. Notwithstanding the foregoing, operations, Start-Ups and Shut-Downs required for Seller’s Capacity Test that are not required for Scheduled Operations shall not be deemed to be part of Scheduled Operations and Seller shall bear the costs or receive the benefits of such operations, Start-Ups and Shut-Downs in accordance with the provisions of Section 3.3(e), 3.3(f) and 3.5(c) as applicable. The Tested Capacity as determined through the Seller’s Capacity Test shall be used to determine the Monthly Contract Capacities in the same manner as the Tested Capacity determined through a Seasonal Capacity Test as provided in Section 3.13(d)(ii) and (iii) and the adjustment shall be effective as of the first day of the month following the month in which the Seller’s Capacity Test occurs. (v) In addition to the Seasonal Capacity Test required above, Buyer may request up to two additional Capacity Tests in any Contract Year which shall be performed in accordance with the Test Procedures and upon no less than 24 hours written Notice to Seller (“Buyer’s Capacity Test”). Buyer shall bear all costs of each Buyer’s Capacity Tests in excess of the costs the Seller would bear due to dispatch of the Units during a non-test period (“Additional Test Costs”), accept and pay for all Energy produced during a Buyer’s Capacity Test and supply and deliver the Gas required for such testing at its expense. The Tested Capacity as determined through the Buyer’s Capacity Test shall be used to determine the Monthly Contract Capacity in the same manner as the Tested Capacity determined through a Seasonal Capacity Test as provided in Section 3.13(d)(ii) and (iii) and the adjustment shall be effective as of the first day of the month following the month in which the Buyer’s Capacity Test occurs. To the extent Seller incurs Additional Test Costs, it shall invoice Buyer and Buyer shall pay such costs, provided that invoicing and payment for all amounts due from one Party to the other Party as necessary to implement this provision shall be done pursuant to Article VI.

Capacity Adjustments. (i) The Initial Capacity Test shall be used to determine whether Seller has met the criteria to be declared Commercially Operable, which is a condition precedent to the occurrence of the Commercial Operation Date. It shall also confirm or adjust the Monthly Contract Capacity amounts. The Seasonal Capacity Tests shall be used to determine whether the Units perform at the Design Capacity or Peak July Conditions, as applicable and to confirm and/or adjust (as appropriate) the Monthly Contract Capacities as follows.: (ii) If the Tested Capacity of the Units during for a Non-Summer Month adjusted to ISO Conditions is less than 98% of the Design Capacity or if the Tested Capacity of the Units during for a Summer Month adjusted to Peak July Conditions is less than 98% of July Design Capacity, then, subject to Section 3.13(d)(iii), the Monthly Contract Capacities shall equal the Contract Capacities set forth in Appendix II as of the Execution Date after adjustment adjusted downward by a percentage equal to the positive percentage difference between the Tested Capacity, as adjusted to ISO Conditions or Peak July Conditions, as applicable, and the Design Capacity or July Design Capacity (respectively). If the Tested Capacity of the Units during for a Non-Summer Month adjusted to ISO Conditions is 98% or more of the Design Capacity or the Tested Capacity of the Units during for a Summer Month adjusted to Peak July Conditions is 98% or more of July Design Capacity (as applicable), then, subject to Section 3.13(d)(iii), the Monthly Contract Capacities shall be equal to the Contract Capacities set forth in Appendix II as of the Execution Date. Notwithstanding the foregoing sentence, but also subject to Section 3.13(d)(iii), if the Tested Capacity of the Unit exceeds the Design Capacity or the July Design Capacity, as applicable, then the Monthly Contract Capacities shall be equal to the Contract Capacities as set forth in Appendix II as of the Execution Date adjusted upward by a percentage equal to the lesser of (i) the positive percentage difference between the Tested Capacity, as adjusted to ISO Conditions or Peak July Conditions, as applicable, and the Design Capacity or July Design Capacity (respectively) and (ii) 2%. An example of the calculation of the capacity adjustments is provided in Appendix XIV. (iii) An adjustment to the Monthly Contract Capacities shall be effective as of the first day of the month following the month in which the Initial Capacity Test or Seasonal Capacity Test (as applicable) occurred. Notwithstanding any other provision of this Section 3.13(d), in any month in which the Monthly Contract Capacity of any Unit(s) as established pursuant to Section 3.13(d)(i), (ii), (iv) or (v) is less than the RA Capacity of such Unit(s), the Monthly Contract Capacity shall equal the RA Capacity. (iv) In the event that (1) as a result of a Seasonal Capacity Test the Monthly Contract Capacities are adjusted downward pursuant to Section 3.13(d)(ii), or the Actual Tested Heat Rate at Peak Load exceeds the Guaranteed Heat Rate Point at Peak Load by more than 4%, or (2) upon the completion of Scheduled Maintenance, Seller may request an additional Capacity Test (“Seller’s Capacity Test”) to be performed. A Seller’s Capacity Test must commence no later than ten (10) Business Days after completion of the Seasonal Capacity Test showing the low test results, the completion of the Scheduled Maintenance, or the completion of the remedial maintenance or repairs, which shall be performed in accordance with Section 3.10(e) or (f)3.10, as applicable, and shall be performed in accordance with the Test Procedures, except that (A) Seller shall provide Buyer with Notice of its request to test and the proposed starting and end times of the Seller’s Capacity Test no later than three Business Day before it commences; (B) Buyer shall evaluate Seller’s proposal and, in its sole discretion, either grant such request or identify two alternative start and stop times from which Seller may elect, and to which Buyer will consent; and (C) if performance of the Seller’s Capacity Test would require operation of the Units during hours other than when Scheduled Operations are occurring or require Start-Ups or Shut-Downs not required by Scheduled Operations, Buyer shall schedule the Unit with the CAISO (and such other Transmission Provider, if any, as applicable) accordingly. Notwithstanding the foregoing, operations, Start-Ups and Shut-Downs required for Seller’s Capacity Test that are not required for Scheduled Operations shall not be deemed to be part of Scheduled Operations and Seller shall bear the costs or receive the benefits of such operations, Start-Ups and Shut-Downs in accordance with the provisions of Section 3.3(e)Sections 3.3 and 3.5, 3.3(f) and 3.5(c) as applicable. The Tested Capacity as determined through the Seller’s Capacity Test shall be used to determine the Monthly Contract Capacities in the same manner as the Tested Capacity determined through a Seasonal Capacity Test as provided in Section 3.13(d)(ii) and (iii) and the adjustment shall be effective as of the first day of the month following the month in which the Seller’s Capacity Test occurs. All Gas supplied for a Seller’s Capacity Test shall be treated as Additional Gas. (v) In addition to the Seasonal Capacity Test required above, Buyer may request up to two additional Capacity Tests in any Contract Year which shall be performed in accordance with the Test Procedures and upon no less than 24 hours written Notice to Seller (“Buyer’s Capacity Test”). Prior to the commencement of the additional Capacity Tests, Seller shall notify Buyer shall bear of all costs of each Buyer’s Capacity Tests in excess of the costs the Seller would bear due to dispatch of the Units during a non-test period (“Additional Test Costs”), and such costs shall be born by Buyer. Buyer agrees to accept and pay for all Energy produced during a Buyer’s Capacity Test and supply and deliver the make Gas available as required for such testing at its expense. The Tested Capacity as determined through the Buyer’s Capacity Test shall be used to determine the Monthly Contract Capacity in the same manner as the Tested Capacity determined through a Seasonal Capacity Test as provided in Section 3.13(d)(ii) and (iii) and the adjustment shall be effective as of the first day of the month following the month in which the Buyer’s Capacity Test occurs. To the extent Seller incurs Seller’s Additional Test CostsCosts as approved by Buyer prior to the commencement of the additional Capacity Test, it shall invoice be invoiced by Seller to Buyer and Buyer shall pay such costs, provided that invoicing and payment for all amounts due from one Party to the other Party as necessary to implement this provision shall be done pursuant to Article VI.

Capacity Adjustments. (i) The Initial Capacity Test shall be used to determine whether Seller has met the criteria to be declared Commercially Operable, which is a condition precedent to the occurrence of the Commercial Operation Date. The Seasonal Capacity Tests shall be used to determine whether the Units perform at the Design Capacity or Peak July Conditions, as applicable and to confirm and/or adjust (as appropriate) the Monthly Contract Capacities as follows. (ii) If the Tested Capacity of the Units during a Non-Summer Month adjusted to ISO Conditions is less than 98% of the Design Capacity or if the Tested Capacity of the Units during a Summer Month adjusted to Peak July Conditions is less than 98% of July Design Capacity, then, subject to Section 3.13(d)(iii), the Monthly Contract Capacities shall equal the Contract Capacities set forth in Appendix II as of the Execution Date after adjustment downward by a percentage equal to the positive percentage difference between the Tested Capacity, as adjusted to ISO Conditions or Peak July Conditions, as applicable, and the Design Capacity or July Design Capacity (respectively). If the Tested Capacity of the Units during a Non-Summer Month adjusted to ISO Conditions is 98% or more of the Design Capacity or the Tested Capacity of the Units during a Summer Month adjusted to Peak July Conditions is 98% of July Design Capacity (as applicable), then, subject to Section 3.13(d)(iii), the Monthly Contract Capacities shall be equal to the Contract Capacities set forth in Appendix II as of the Execution Date. Notwithstanding the foregoing sentence, but also subject to Section 3.13(d)(iii), if the Tested Capacity of the Unit exceeds the Design Capacity or the July Design Capacity, as applicable, then the Monthly Contract Capacities shall be equal to the Contract Capacities as set forth in Appendix II as of the Execution Date adjusted upward by a percentage equal to the lesser of (i) the positive percentage difference between the Tested Capacity, as adjusted to ISO Conditions or Peak July Conditions, as applicable, and the Design Capacity or July Design Capacity (respectively) and (ii) 2%. An example of the calculation of the capacity adjustments is provided in Appendix XIV. (iii) An adjustment to the Monthly Contract Capacities shall be effective as of the first day of the month following the month in which the Initial Capacity Test or Seasonal Capacity Test (as applicable) occurred. Notwithstanding any other provision of this Section 3.13(d), in any month in which the Monthly Contract Capacity of any Unit(s) as established pursuant to Section 3.13(d)(i), (ii), (iv) or (v) is less than the RA Capacity of such Unit(s), the Monthly Contract Capacity shall equal the RA Capacity. (iv) In the event that (1) as a result of a Seasonal Capacity Test the Monthly Contract Capacities are adjusted downward pursuant to Section 3.13(d)(ii), or the Actual Tested Heat Rate at Peak Load exceeds the Guaranteed Heat Rate Point at Peak Load by more than 4%, or (2) upon the completion of Scheduled Maintenance, Seller may request an additional Capacity Test (“Seller’s Capacity Test”) to be performed. A Seller’s Capacity Test must commence no later than ten (10) Business Days after completion of the Seasonal Capacity Test showing the low test results, the completion of the Scheduled Maintenance, or the completion of the remedial maintenance or repairs, which shall be performed in accordance with Section 3.10(e) or (f), as applicable, and shall be performed in accordance with the Test Procedures, except that (A) Seller shall provide Buyer with Notice of its request to test and the proposed starting and end times of the Seller’s Capacity Test no later than three Business Day before it commences; (B) Buyer shall evaluate Seller’s proposal and, in its sole discretion, either grant such request or identify two alternative start and stop times from which Seller may elect, and to which Buyer will consent; and (C) if performance of the Seller’s Capacity Test would require operation of the Units during hours other than when Scheduled Operations are occurring or require Start-Ups or Shut-Downs not required by Scheduled Operations, Buyer shall schedule the Unit with the CAISO (and such other Transmission Provider, if any, as applicable) accordingly. Notwithstanding the foregoing, operations, Start-Ups and Shut-Downs required for Seller’s Capacity Test that are not required for Scheduled Operations shall not be deemed to be part of Scheduled Operations and Seller shall bear the costs or receive the benefits of such operations, Start-Ups and Shut-Downs in accordance with the provisions of Section 3.3(d), 3.3(e), 3.3(f) and 3.5(c3.5(cd) as applicable. The Tested Capacity as determined through the Seller’s Capacity Test shall be used to determine the Monthly Contract Capacities in the same manner as the Tested Capacity determined through a Seasonal Capacity Test as provided in Section 3.13(d)(ii) and (iii) and the adjustment shall be effective as of the first day of the month following the month in which the Seller’s Capacity Test occurs. (v) In addition to the Seasonal Capacity Test required above, Buyer may request up to two additional Capacity Tests in any Contract Year which shall be performed in accordance with the Test Procedures and upon no less than 24 hours written Notice to Seller (“Buyer’s Capacity Test”). Buyer shall bear all costs of each Buyer’s Capacity Tests in excess of the costs the Seller would bear due to dispatch of the Units during a non-test period (“Additional Test Costs”), accept and pay for all Energy produced during a Buyer’s Capacity Test and supply and deliver the Gas required for such testing at its expense. The Tested Capacity as determined through the Buyer’s Capacity Test shall be used to determine the Monthly Contract Capacity in the same manner as the Tested Capacity determined through a Seasonal Capacity Test as provided in Section 3.13(d)(ii) and (iii) and the adjustment shall be effective as of the first day of the month following the month in which the Buyer’s Capacity Test occurs. To the extent Seller incurs Additional Test Costs, it shall invoice Buyer and Buyer shall pay such costs, provided that invoicing and payment for all amounts due from one Party to the other Party as necessary to implement this provision shall be done pursuant to Article VI.

Capacity Adjustments. (i) The For New Facilities, the Initial Capacity Performance Test shall be used to determine whether Seller has met the criteria to be declared Commercially Operable. For Existing Facilities and during the Delivery Term, which is a condition precedent the Initial Performance Test shall be used to confirm or adjust the occurrence of the Commercial Operation DateMonthly Contract Capacity amounts. The Seasonal Capacity Performance Tests shall be used to determine whether the Units perform at the Design Capacity or Peak July Conditions, as applicable and to confirm and/or adjust (as appropriate) the Monthly Contract Capacities as follows.: (iiA) If the Tested Capacity of the Units during a Non-Summer Month adjusted to ISO Conditions is less than 98% ninety-nine percent (99%) of the Design Capacity or if the Tested Capacity of the Units during a Summer Month adjusted to Peak July Conditions is less than 98% of July Design Capacity, then, subject to Section 3.13(d)(iii3.11(d)(i)(B), the Monthly Contract Capacities shall equal the Contract Capacities set forth in Appendix II as of the Execution Effective Date after adjustment adjusted downward by a percentage equal to the positive percentage difference between the Tested Capacity, as adjusted to ISO Conditions or Peak July Conditions, as applicable, and the Design Capacity or July Design Capacity (respectively)Capacity. If the Tested Capacity of the Units during a Non-Summer Month adjusted to ISO Conditions is 98% ninety-nine percent (99%) or more of the Design Capacity or the Tested Capacity of the Units during a Summer Month adjusted to Peak July Conditions is 98% of July Design Capacity (as applicable)Capacity, then, subject to Section 3.13(d)(iii3.11(d)(i)(B), the Monthly Contract Capacities shall be equal to the Contract Capacities set forth in Appendix II as of the Execution Effective Date. Notwithstanding the foregoing sentence, but also subject to Section 3.13(d)(iii3.11(d)(i)(B), if the Tested Capacity of the Unit exceeds the Design Capacity or the July Design Capacity, as applicable, then the Monthly Contract Capacities shall be equal to the Contract Capacities as set forth in Appendix II as of the Execution Effective Date adjusted upward by a percentage equal to the lesser of (iI) the positive percentage difference between the Tested Capacity, as adjusted to ISO Conditions or Peak July Conditions, as applicable, and the Design Capacity or July Design Capacity (respectively) and (iiII) 2one percent (1%). An example of the calculation of the capacity Capacity adjustments is provided in Appendix XIVXII. (iiiB) An adjustment to the Monthly Contract Capacities shall be effective as of the first day of the month following the month in which the Initial Capacity Performance Test or Seasonal Capacity Performance Test (as applicable) occurred. Notwithstanding any other provision of this Section 3.13(d), in any month in which the Monthly Contract Capacity of any Unit(s) as established pursuant subject to Section 3.13(d)(i3.11(a), (ii), (iv) or (v) is less than the RA Capacity of such Unit(s), the Monthly Contract Capacity shall equal the RA Capacity. (ivC) In the event that (1I) as a result of a Seasonal Capacity Test Performance Test, the Monthly Contract Capacities are adjusted downward pursuant to Section 3.13(d)(ii3.11(d)(i)(A), or the Actual Tested Heat Rate at Peak one hundred percent (100%) of Base Load exceeds the Guaranteed Heat Rate Point at Peak one hundred percent (100%) of Base Load by more than four percent (4%), or (2II) upon the completion of Scheduled Maintenance, or (III) results of an Other Test are outside the tolerance band specified in the Additional Test Procedures, Seller may request an additional Capacity Performance Test (“Seller’s Capacity Performance Test”) to be performed. A Seller’s Capacity Performance Test must commence no later than ten (10) Business Days after completion of the Seasonal Capacity Performance Test showing the low test results, or the completion of the Scheduled Maintenance, or the completion of the remedial maintenance or repairs, Maintenance (which shall be performed in accordance with Section 3.10(e) or (f)3.8, as applicable), and shall be performed in accordance with the Test Procedures, except that (A1) Seller shall provide Buyer with Notice of its request to test and the proposed starting and end times of the Seller’s Capacity Performance Test no later than three (3) Business Day Days before it commences; (B2) Buyer shall evaluate Seller’s proposal and, in its sole discretion, either grant such request or identify two alternative start and stop times from which Seller may elect, and to which Buyer will consent; and (C3) if performance of the Seller’s Capacity Performance Test would require operation of the Units during hours other than when Scheduled Operations are occurring or require Start-Ups or Shut-Downs not required by Scheduled Operations, Buyer shall schedule the Unit with the CAISO (and such other Transmission Provider, if any, as applicable) accordingly. Notwithstanding the foregoing, operations, Start-Ups and Shut-Downs required for Seller’s Capacity Performance Test that are not required for Scheduled Operations shall not be deemed to be part of Scheduled Operations and Seller shall bear the costs or receive the benefits of such operations, Start-Ups and Shut-Downs in accordance with the provisions of Section 3.3(e)Sections 3.3 and 3.5, 3.3(f) and 3.5(c) as applicable. The Tested Capacity as determined through the Seller’s Capacity Performance Test shall be used to determine the Monthly Contract Capacities in the same manner as the Tested Capacity determined through a Seasonal Capacity Performance Test as provided in Section 3.13(d)(ii3.11(d)(i)(A) and (iii) B). During the Delivery Term, all Gas supplied for a Seller’s Performance Test, an Initial Performance Test, and the adjustment an Other Test shall be effective treated as of the first day of the month following the month in which the Seller’s Capacity Test occursAdditional Gas. (vii) In addition to the Seasonal Capacity Performance Test required above, Buyer may request up to two additional Capacity Performance Tests in any Contract Year which shall be performed in accordance with the Test Procedures and upon no less than 24 twenty-four (24) hours written Notice to Seller (“Buyer’s Capacity Performance Test”). Prior to the commencement of the additional Performance Tests, Seller shall Notify Buyer shall bear of all costs of each Buyer’s Capacity Performance Tests in excess of the Seller’s usual costs the Seller would bear due of responding to dispatch of the Units during a non-test period (“Additional Test Costs”), and such costs shall be borne by Buyer. Buyer agrees to accept and pay for all Energy produced during a Buyer’s Capacity Performance Test and supply and deliver the make Gas available as required for such testing at its expense. The Tested Capacity as determined through the Buyer’s Capacity Performance Test shall be used to determine the Monthly Contract Capacity in the same manner as the Tested Capacity determined through a Seasonal Capacity Performance Test as provided in Section 3.13(d)(ii3.11(d)(i)(A) and (iiiB) and the adjustment shall be effective as of the first day of the month following the month in which the Buyer’s Capacity Performance Test occurs. To the extent Seller incurs Seller’s Additional Test CostsCosts as approved by Buyer prior to the commencement of the additional Performance Test, it shall invoice be invoiced by Seller to Buyer and Buyer shall pay such costs, provided that invoicing and payment for all amounts due from one Party to the other Party as necessary to implement this provision shall be done pursuant to Article VI.

Capacity Adjustments. (i) The For New Facilities, the Initial Capacity Performance Test shall be used to determine whether Seller has met the criteria to be declared Commercially Operable. For Existing Facilities and during the Delivery Term, which is a condition precedent the Initial Performance Test shall be used to confirm or adjust the occurrence of the Commercial Operation Date. The Seasonal Monthly Contract Capacity amounts. (ii) Performance Tests shall be used to determine whether the Units perform at the Design Capacity or Peak July Conditions, as applicable and to confirm and/or adjust (as appropriate) the Monthly Contract Capacities as follows.: (iiA) If the Tested Capacity of the Units during a Non-Summer Month adjusted to ISO Conditions is less than 98% ninety-nine percent (99%) of the Design Capacity or if the Tested Capacity of the Units during a Summer Month adjusted to Peak July Conditions is less than 98% of July Design Capacity, then, subject to Section 3.13(d)(iii3.11(d)(ii)(B), the Monthly Contract Capacities shall equal the Contract Capacities set forth in Appendix II as of the Execution Date after adjustment adjusted downward by a percentage equal to the positive percentage difference between the Tested Capacity, as adjusted to ISO Conditions or Peak July Conditions, as applicable, and the Design Capacity or July Design Capacity (respectively)Capacity. If the Tested Capacity of the Units during a Non-Summer Month adjusted to ISO Conditions is 98% ninety-nine percent (99%) or more of the Design Capacity or the Tested Capacity of the Units during a Summer Month adjusted to Peak July Conditions is 98% of July Design Capacity (as applicable)Capacity, then, subject to Section 3.13(d)(iii3.11(d)(ii)(B), the Monthly Contract Capacities shall be equal to the Contract Capacities set forth in Appendix II as of the Execution Date. Notwithstanding the foregoing sentence, but also subject to Section 3.13(d)(iii3.11(d)(ii)(B), if the Tested Capacity of the Unit exceeds the Design Capacity or the July Design Capacity, as applicable, then the Monthly Contract Capacities shall be equal to the Contract Capacities as set forth in Appendix II as of the Execution Date adjusted upward by a percentage equal to the lesser of (iI) the positive percentage difference between the Tested Capacity, as adjusted to ISO Conditions or Peak July Conditions, as applicable, and the Design Capacity or July Design Capacity (respectively) and (iiII) 2one percent (1%). An example of the calculation of the capacity Capacity adjustments is provided in Appendix XIVXII. (iiiB) An adjustment to the Monthly Contract Capacities shall be effective as of the first day of the month following the month in which the Initial Capacity Performance Test or Seasonal Capacity Test (as applicable) occurred. Notwithstanding any other provision of this Section 3.13(d), in any month in which the Monthly Contract Capacity of any Unit(s) as established pursuant subject to Section 3.13(d)(i3.11(a), (ii), (iv) or (v) is less than the RA Capacity of such Unit(s), the Monthly Contract Capacity shall equal the RA Capacity. (iv) In the event that (1) as a result of a Seasonal Capacity Test the Monthly Contract Capacities are adjusted downward pursuant to Section 3.13(d)(ii), or the Actual Tested Heat Rate at Peak Load exceeds the Guaranteed Heat Rate Point at Peak Load by more than 4%, or (2) upon the completion of Scheduled Maintenance, Seller may request an additional Capacity Test (“Seller’s Capacity Test”) to be performed. A Seller’s Capacity Test must commence no later than ten (10) Business Days after completion of the Seasonal Capacity Test showing the low test results, the completion of the Scheduled Maintenance, or the completion of the remedial maintenance or repairs, which shall be performed in accordance with Section 3.10(e) or (f), as applicable, and shall be performed in accordance with the Test Procedures, except that (A) Seller shall provide Buyer with Notice of its request to test and the proposed starting and end times of the Seller’s Capacity Test no later than three Business Day before it commences; (B) Buyer shall evaluate Seller’s proposal and, in its sole discretion, either grant such request or identify two alternative start and stop times from which Seller may elect, and to which Buyer will consent; and (C) if performance of the Seller’s Capacity Test would require operation of the Units during hours other than when Scheduled Operations are occurring or require Start-Ups or Shut-Downs not required by Scheduled Operations, Buyer shall schedule the Unit with the CAISO (and such other Transmission Provider, if any, as applicable) accordingly. Notwithstanding the foregoing, operations, Start-Ups and Shut-Downs required for Seller’s Capacity Test that are not required for Scheduled Operations shall not be deemed to be part of Scheduled Operations and Seller shall bear the costs or receive the benefits of such operations, Start-Ups and Shut-Downs in accordance with the provisions of Section 3.3(e), 3.3(f) and 3.5(c) as applicable. The Tested Capacity as determined through the Seller’s Capacity Test shall be used to determine the Monthly Contract Capacities in the same manner as the Tested Capacity determined through a Seasonal Capacity Test as provided in Section 3.13(d)(ii) and (iii) and the adjustment shall be effective as of the first day of the month following the month in which the Seller’s Capacity Test occurs. (v) In addition to the Seasonal Capacity Test required above, Buyer may request up to two additional Capacity Tests in any Contract Year which shall be performed in accordance with the Test Procedures and upon no less than 24 hours written Notice to Seller (“Buyer’s Capacity Test”). Buyer shall bear all costs of each Buyer’s Capacity Tests in excess of the costs the Seller would bear due to dispatch of the Units during a non-test period (“Additional Test Costs”), accept and pay for all Energy produced during a Buyer’s Capacity Test and supply and deliver the Gas required for such testing at its expense. The Tested Capacity as determined through the Buyer’s Capacity Test shall be used to determine the Monthly Contract Capacity in the same manner as the Tested Capacity determined through a Seasonal Capacity Test as provided in Section 3.13(d)(ii) and (iii) and the adjustment shall be effective as of the first day of the month following the month in which the Buyer’s Capacity Test occurs. To the extent Seller incurs Additional Test Costs, it shall invoice Buyer and Buyer shall pay such costs, provided that invoicing and payment for all amounts due from one Party to the other Party as necessary to implement this provision shall be done pursuant to Article VI.

Capacity Adjustments. (i) e. The Initial Capacity Test shall be used to determine whether Seller has met the criteria to be declared Commercially Operable, which is a condition precedent to the occurrence of the Commercial Operation Date. The and Seasonal Capacity Tests shall be used to determine whether the Units perform at the Design Capacity or Peak July Conditions, as applicable and to confirm and/or adjust (as appropriate) the Monthly Contract Capacities as follows. (ii) If the Tested Capacity of the Units during a Non-Summer Month adjusted to ISO Conditions is less than 98% of the Design Capacity or if the Tested Capacity of the Units during a Summer Month adjusted to Peak July Conditions is less than 98% of July Design Capacity, then, subject to Section 3.13(d)(iii), the Monthly Contract Capacities shall equal the Contract Capacities set forth in Appendix II as of the Execution Date after adjustment downward by a percentage equal to the positive percentage difference between the Tested Capacity, as adjusted to ISO Conditions or Peak July Conditions, as applicable, and the Design Capacity or July Design Capacity (respectively). If the Tested Capacity of the Units during a Non-Summer Month adjusted to ISO Conditions is 98% or more of the Design Capacity or the Tested Capacity of the Units during a Summer Month adjusted to Peak July Conditions is 98% of July Design Capacity (as applicable), then, subject to Section 3.13(d)(iii), the Monthly Contract Capacities shall be equal to the Contract Capacities set forth in Appendix II as of the Execution Date. Notwithstanding the foregoing sentence, but also subject to Section 3.13(d)(iii), if the Tested Capacity of the Unit exceeds the Design Capacity or the July Design Capacity, as applicable, then the Monthly Contract Capacities shall be equal to the Contract Capacities as set forth in Appendix II as of the Execution Date adjusted upward by a percentage equal to the lesser of (i) the positive percentage difference between the Tested Capacity, as adjusted to ISO Conditions or Peak July Conditions, as applicable, and the Design Capacity or July Design Capacity (respectively) and (ii) 2%. An example of the calculation of the capacity adjustments is provided in Appendix XIV. (iii) An adjustment to the Monthly Contract Capacities shall be effective as of the first day of the month following the month in which the Initial Capacity Test or Seasonal Capacity Test (as applicable) occurred. Notwithstanding any other provision of this Section 3.13(d), in any month in which the Monthly Contract Capacity of any Unit(s) as established pursuant to Section 3.13(d)(i), (ii), (iv) or (v) is less than the RA Capacity of such Unit(s), the Monthly Contract Capacity shall equal the RA Capacity. (iv) In the event that (1) as a result of a Seasonal Capacity Test the Monthly Contract Capacities are adjusted downward pursuant to Section 3.13(d)(ii), or the Actual Tested Heat Rate at Peak Load exceeds the Guaranteed Heat Rate Point at Peak Load by more than 4%, or (2) upon the completion of Scheduled Maintenance, Seller may request an additional Capacity Test (“Seller’s Capacity Test”) to be performed. A Seller’s Capacity Test must commence no later than ten (10) Business Days after completion of the Seasonal Capacity Test showing the low test results, the completion of the Scheduled Maintenance, or the completion of the remedial maintenance or repairs, which shall be performed in accordance with Section 3.10(e) or (f), as applicable, and shall be performed in accordance with the Test Procedures, except that (A) Seller shall provide Buyer with Notice of its request to test and the proposed starting and end times of the Seller’s Capacity Test no later than three Business Day before it commences; (B) Buyer shall evaluate Seller’s proposal and, in its sole discretion, either grant such request or identify two alternative start and stop times from which Seller may elect, and to which Buyer will consent; and (C) if performance of the Seller’s Capacity Test would require operation of the Units during hours other than when Scheduled Operations are occurring or require Start-Ups or Shut-Downs not required by Scheduled Operations, Buyer shall schedule the Unit with the CAISO (and such other Transmission Provider, if any, as applicable) accordingly. Notwithstanding the foregoing, operations, Start-Ups and Shut-Downs required for Seller’s Capacity Test that are not required for Scheduled Operations shall not be deemed to be part of Scheduled Operations and Seller shall bear the costs or receive the benefits of such operations, Start-Ups and Shut-Downs in accordance with the provisions of Section 3.3(e), 3.3(f) and 3.5(c) as applicable. The Tested Capacity as determined through the Seller’s Capacity Test shall be used to determine the Monthly Contract Capacities in the same manner as the Tested Capacity determined through a Seasonal Capacity Test as provided in Section 3.13(d)(ii) and (iii) and the adjustment shall be effective as of the first day of the month following the month in which the Seller’s Capacity Test occurs. (v) In addition to the Seasonal Capacity Test required above, Buyer may request up to two additional Capacity Tests in any Contract Year which shall be performed in accordance with the Test Procedures and upon no less than 24 hours written Notice to Seller (“Buyer’s Capacity Test”). Buyer shall bear all costs of each Buyer’s Capacity Tests in excess of the costs the Seller would bear due to dispatch of the Units during a non-test period (“Additional Test Costs”), accept and pay for all Energy produced during a Buyer’s Capacity Test and supply and deliver the Gas required for such testing at its expense. The Tested Capacity as determined through the Buyer’s Capacity Test shall be used to determine the Monthly Contract Capacity in the same manner as the Tested Capacity determined through a Seasonal Capacity Test as provided in Section 3.13(d)(ii) and (iii) and the adjustment shall be effective as of the first day of the month following the month in which the Buyer’s Capacity Test occurs. To the extent Seller incurs Additional Test Costs, it shall invoice Buyer and Buyer shall pay such costs, provided that invoicing and payment for all amounts due from one Party to the other Party as necessary to implement this provision shall be done pursuant to Article VI.