Critical Milestones. (a) Commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a): (i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet hereto, in final form, by the date that is sixteen (16) months after the Effective Date; (ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date; (iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date; (iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and (v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective Date. (b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved, which information will be acceptable to Buyer in its reasonable discretion. (c) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement. (d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages. (e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 6 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(c), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) ): receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) [_________]; acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to Buyer’s distribution system under the Interconnecting UtilityInterconnection Tariff, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementAgreement as set forth on Exhibit B, by [_________]; demonstration that the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor Financial Closing Date has occurred and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate orhas commenced on or before July 1, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), 2017; and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective Date.
(b) July 1, 2018. Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer requires such written notice solely for monitoring purposes, which information will and that nothing set forth in this Agreement shall create or impose upon Buyer any responsibility or liability for the development, construction, operation or maintenance of the Facility. In addition to any extension of a date for a Critical Milestone as a result of a Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved (i) by one year without posting additional Development Period Security and (ii) by up to two additional six month periods by posting additional Development Period Security of $10 per kWh of Contract Maximum Amount for each such six-month period. In no event may Seller exercise the right to extend the Critical Milestone dates under this Section 3.1(c) by more than two years, and in no event shall any extension of the Critical Milestone dates as a result of one or more Force Majeure events exceed a cumulative total of an additional twelve (12) months. Any such election shall be acceptable made in a written notice delivered to Buyer in its reasonable discretion.
on or prior to the first date for a Critical Milestone that has not yet been achieved (c) as such date may have previously been extended). The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 6 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(c), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementAgreement as set forth on Exhibit B, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance demonstration of a full notice the financial capability (whether through third party financing to Seller or Seller’s own financial assets) to proceed by Seller to its general construction contractor with the development and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Outputincluding, that is equivalent as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to Interconnecting Utility and construction of the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed Network Upgrades by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(viv) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective DateDecember 31, 2016.
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer requires such written notice solely for monitoring purposes, which information will be acceptable to and that nothing set forth in this Agreement shall create or impose upon Buyer in its reasonable discretionany responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension of a date for a Critical Milestone as a result of a Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved (i) by one year without posting additional Development Period Security and (ii) by up to two additional six month periods by posting additional Development Period Security of for each such six-month period. In no event may Seller exercise the right to extend the Critical Milestone dates under this Section 3.1(c) by more than two years, and in no event shall any extension of the Critical Milestone dates as a result of one or more Force Majeure events exceed a cumulative total of an additional twelve (12) months. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 2 contracts
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) except for the State Forest Easement, acquisition of all required real property rights necessary for construction and operation of the Facility and the interconnection of the Facility to the Interconnecting Utility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B by May 31, 2017;
(ii) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective DateJune 30, 2018;
(iiiii) acquisition of all required real property and the State Forest Easement by September 30, 2018;
(iv) closing of the Financing or other site control rights necessary for construction and operation demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, for including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility, for Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreementby February 28, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date2020; and
(v) achievement of the Commercial Operation Date by the date that is twenty December 31, 2020 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $118,692 for each such six- month period; provided, however, that in no event may Seller extend the date for the Critical Milestone in Section 3.1(a)(i). Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for the Commercial Operation Date (Section 3.1(a)(v) by the applicable Critical Milestone date, the Critical Milestone date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Site Control Critical Milestone (Section 3.1(a)(i), the Permits Critical Milestone (Section 3.1(a)(ii)) or the Financing Critical Milestone (Section 3.1(a)(iv)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 2 contracts
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(c), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective DateDecember 31, 2013;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) Utility and for performance of Seller’s obligations under this AgreementAgreement as set forth on Exhibit B, by the date that is sixteen (16) months after the Effective DateDecember 31, 2013;
(iii) closing of Financing required in order for Seller to proceed with the construction of the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades, by December 31, 2013;
(iv) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate orDecember 31, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date2013; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective DateDecember 31, 2015.
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer requires such written notice solely for monitoring purposes, which information will be acceptable to and that nothing set forth in this Agreement shall create or impose upon Buyer in its reasonable discretionany responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) The Parties agree that time is In addition to any extension of the essence with respect a date for a Critical Milestone as a result of a Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then yet achieved (i) Buyer shall retain the full amount of the Performance Guarantee Deposit by one year without posting additional Development Period Security and (ii) by up to two additional six month periods by posting additional Development Period Security of $1,170,000 for each such six-month period. In no event may Seller exercise the right to extend the Critical Milestone dates under this Agreement shall automatically terminate on such milestone dateSection 3.1(c) by more than two (2) years in total, and upon such termination neither Party will have in no event shall any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure extension of the Facility to achieve the Output Demonstration would be difficult Critical Milestone dates as a result of one or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention more Force Majeure events exceed a cumulative total of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.an additional twelve
Appears in 2 contracts
Critical Milestones. (a) Commencing Subject to the provisions of Sections 3.1(c), 3.1(d), 3.1(e) and 10.1, commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet hereto, in final form, approvals by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary Massachusetts Energy Facilities Siting Board for construction and operation of the Facility, for the interconnection of the Facility to the Interconnecting UtilityUtility and the construction of Network Upgrades, for in final form and not subject to appeal or rehearing, by ;
(ii) qualification determination notification under ISO-NE Tariff Section III.13.1.1.2.8 by ;
(iii) receipt of all Permits (other than those referenced in Section 3.1(a)(i)) necessary to construct and operate the Facility, as set forth in Exhibit B, in final form, by
(iv) the achievement of the Financial Closing Date or other demonstration to Buyer’s reasonable satisfaction of the financial capability of Seller to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementUpgrades, by the date that is sixteen (16) months after the Effective Date;
(iiiv) (A) issuance of a full notice to proceed by Seller to its general construction contractor and (B) commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(vvi) achievement of the Commercial Operation Date by the date that is twenty September 1, 2025 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $19,800 (which is $5,000 per MWh per hour of Contract Maximum Amount) for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents Seller from achieving the Critical Milestone obligation specified in Section 3.1(a)(v)(B) by the deadline stated therein or the Commercial Operation Date by the Guaranteed Commercial Operation Date, such Critical Milestone deadline shall be extended for the duration of the Force Majeure event, but under no circumstances shall such extensions of such Critical Milestone due to all Force Majeure events exceed beyond the date stated in Section 3.1(a)(v)(B) or 3.1(a)(vi), as applicable.
(e) In the event the Regulatory Approval is subject to appeal or rehearing as of the one (1) year anniversary of the Effective Date or is otherwise not received by the one (1) year anniversary of the Effective Date, the date for each Critical Milestone not yet achieved shall be extended on a day-for-day basis for the duration of the delay beyond such one-year period.
(f) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(dg) If Notwithstanding the Facility does not achieve other provisions of this Agreement, or the Output Demonstration by the milestone date set out in Section 3.1(a)(ivrights of Seller under Sections 3.1(c), then (i) Buyer 3.1(d), 3.1(e), 3.2 and 10.1, in no event shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days occur after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 2 contracts
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(c), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementAgreement as set forth on Exhibit B, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance demonstration of a full notice the financial capability (whether through third party financing to Seller or Seller’s own financial assets) to proceed by Seller to its general construction contractor with the development and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Outputincluding, that is equivalent as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to Interconnecting Utility and construction of the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed Network Upgrades by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(viv) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective DateDecember 31, 2015.
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer requires such written notice solely for monitoring purposes, which information will be acceptable to and that nothing set forth in this Agreement shall create or impose upon Buyer in its reasonable discretionany responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension of a date for a Critical Milestone as a result of a Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved (i) by one year without posting additional Development Period Security and (ii) by up to two additional six month periods by posting additional Development Period Security of for each such six-month period. In no event may Seller exercise the right to extend the Critical Milestone dates under this Section 3.1(c) by more than two years, and in no event shall any extension of the Critical Milestone dates as a result of one or more Force Majeure events exceed a cumulative total of an additional twelve (12) months. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 2 contracts
Critical Milestones.
(a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective DateJune 30, 2018;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by March 1, 2019;
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreementby March 1, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date2019; and
(viv) achievement of the Commercial Operation Date by the date that is twenty December 31, 2019 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension to a date for a Critical Milestone as a result of Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $11,085.00 for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
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Critical Milestones. (a) Commencing Subject to the provisions of Sections 3.1(c), 3.1(d), 3.1(e) and 10.1, commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet hereto, in final form, approvals by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary Massachusetts Energy Facilities Siting Board for construction and operation of the Facility, for the interconnection of the Facility to the Interconnecting UtilityUtility and the construction of Network Upgrades, for in final form and not subject to appeal or rehearing, by ;
(ii) qualification determination notification under ISO-NE Tariff Section III.13.1.1.2.8 by ;
(iii) receipt of all Permits (other than those referenced in Section 3.1(a)(i)) necessary to construct and operate the Facility, as set forth in Exhibit B, in final form, by ;
(iv) the achievement of the Financial Closing Date or other demonstration to Buyer’s reasonable satisfaction of the financial capability of Seller to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementUpgrades, by the date that is sixteen (16) months after the Effective Date;
(iiiv) (A) issuance of a full notice to proceed by Seller to its general construction contractor and (B) commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(vvi) achievement of the Commercial Operation Date by the date that is twenty December 15, 2025 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $19,200 (which is $5,000 per MWh per hour of Contract Maximum Amount) for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents Seller from achieving the Critical Milestone obligation specified in Section 3.1(a)(v)(B) by the deadline stated therein or the Commercial Operation Date by the Guaranteed Commercial Operation Date, such Critical Milestone deadline shall be extended for the duration of the Force Majeure event, but under no circumstances shall such extensions of such Critical Milestone due to all Force Majeure events exceed beyond the date stated in Section 3.1(a)(v)(B) or 3.1(a)(vi), as applicable.
(e) In the event the Regulatory Approval is subject to appeal or rehearing as of the one (1) year anniversary of the Effective Date or is otherwise not received by the one (1) year anniversary of the Effective Date, the date for each Critical Milestone not yet achieved shall be extended on a day-for-day basis for the duration of the delay beyond such one-year period.
(f) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(dg) If Notwithstanding the Facility does not achieve other provisions of this Agreement, or the Output Demonstration by the milestone date set out in Section 3.1(a)(ivrights of Seller under Sections 3.1(c), then (i) Buyer 3.1(d), 3.1(e), 3.2 and 10.1, in no event shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.occur after
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Critical Milestones. (a) Commencing Subject to the provisions of Sections 3.1(c), 3.1(d), 3.1(e) and 10.1, commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet hereto, in final form, approvals by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary Massachusetts Energy Facilities Siting Board for construction and operation of the Facility, for the interconnection of the Facility to the Interconnecting UtilityUtility and the construction of Network Upgrades, for in final form and not subject to appeal or rehearing, by ;
(ii) qualification determination notification under ISO-NE Tariff Section III.13.1.1.2.8 by ;
(iii) receipt of all Permits (other than those referenced in Section 3.1(a)(i)) necessary to construct and operate the Facility, as set forth in Exhibit B, in final form, by ;
(iv) the achievement of the Financial Closing Date or other demonstration to Buyer’s reasonable satisfaction of the financial capability of Seller to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementUpgrades, by the date that is sixteen (16) months after the Effective Date;
(iiiv) (A) issuance of a full notice to proceed by Seller to its general construction contractor and (B) commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(vvi) achievement of the Commercial Operation Date by the date that is twenty September 1, 2025 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $926,350 (which is $5,000 per MWh per hour of Contract Maximum Amount) for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents Seller from achieving the Critical Milestone obligation specified in Section 3.1(a)(v)(B) by the deadline stated therein or the Commercial Operation Date by the Guaranteed Commercial Operation Date, such Critical Milestone deadline shall be extended for the duration of the Force Majeure event, but under no circumstances shall such extensions of such Critical Milestone due to all Force Majeure events exceed beyond the date stated in Section 3.1(a)(v)(B) or 3.1(a)(vi), as applicable.
(e) In the event the Regulatory Approval is subject to appeal or rehearing as of the one (1) year anniversary of the Effective Date or is otherwise not received by the one (1) year anniversary of the Effective Date, the date for each Critical Milestone not yet achieved shall be extended on a day-for-day basis for the duration of the delay beyond such one-year period.
(f) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(dg) If Notwithstanding the Facility does not achieve other provisions of this Agreement, or the Output Demonstration by the milestone date set out in Section 3.1(a)(ivrights of Seller under Sections 3.1(c), then (i) Buyer 3.1(d), 3.1(e), 3.2 and 10.1, in no event shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days occur after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 2 contracts
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective DateMay 1, 2022;
(ii) either partial assignment or sublease from Seller’s Affiliate to Seller of a sufficient portion of the federal lease referenced in Section 7.2(m) necessary for siting of the Facility, by May 1, 2022;
(iii) acquisition of all required real property and other site control rights in additional to the federal lease referenced in Section 7.2(m) necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by May 1, 2022;
(iv) closing of the construction Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreementby June 1, by the date that is sixteen (16) months after the Effective Date2022;
(iiiv) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction Buyer of the Final Proposed Facility Size by the date that is sixteen (16) months after the Effective DateJune 1, 2022;
(ivvi) achievement determination of the Delivery Point (and submission of an hourly Energy generation rate or, in amended Exhibit A reflecting such Delivery Point) and the case Interconnection Point and execution of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed Interconnection Agreement by Seller’s engineer , the Interconnecting Utility and accepted ISO-NE, with a copy provided to Buyer, by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective DateJune 1, 2022; and
(vvii) achievement of the Commercial Operation Date by January 15, 2024 (“Guaranteed Commercial Operation Date”); provided, however, the Parties may mutually agree to extend the milestones set forth in Section 3.1(a)(i), Section 3.1(a)(ii), and Section 3.1(a)(iii), if such later date that is twenty (20would not impact Seller’s ability to achieve the Guaranteed Commercial Operation Date, subject to Seller’s obligation to provide additional Development Period Security as further described in Section 3.1(c) months after the Effective Datehereof.
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension to a date for a Critical Milestone as a result of Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $2,000,000 (which equals $5,000 per MWh per hour of the Contract Maximum Amount, and which amount will be increased if necessary to reflect the Proposed Facility Size as set forth in the Final Proposed Facility Size Notice), for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twenty-four (24) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
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Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) except for the State Forest Easement, acquisition of all required real property rights necessary for construction and operation of the Facility and the interconnection of the Facility to the Interconnecting Utility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B by May 31, 2017;
(ii) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective DateJune 30, 2018;
(iiiii) acquisition of all required real property and the State Forest Easement by September 30, 2018;
(iv) closing of the Financing or other site control rights necessary for construction and operation demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, for including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility, for Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreementby February 28, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date2020; and
(v) achievement of the Commercial Operation Date by the date that is twenty December 31, 2020 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $125,874 for each such six-month period; provided, however, that in no event may Seller extend the date for the Critical Milestone in Section 3.1(a)(i). Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for the Commercial Operation Date (Section 3.1(a)(v) by the applicable Critical Milestone date, the Critical Milestone date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Site Control Critical Milestone (Section 3.1(a)(i), the Permits Critical Milestone (Section 3.1(a)(ii)) or the Financing Critical Milestone (Section 3.1(a)(iv)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 2 contracts
Critical Milestones.
(a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective DateJune 30, 2018;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by March 1, 2019;
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreementby March 1, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date2019; and
(viv) achievement of the Commercial Operation Date by the date that is twenty December 31, 2019 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension to a date for a Critical Milestone as a result of Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $11,755.00 for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 2 contracts
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;by
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;and
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension to a date for a Critical Milestone as a result of Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $11,085.00 for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(c), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date[ ];
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementAgreement as set forth on Exhibit B, by the date that is sixteen (16) months after the Effective Date[ ];
(iii) demonstration of the financial capability (whether through third party financing to Seller or Seller’s own financial assets) to proceed with the development and construction of the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades by [ ] [on or before 12/31/13];
(iv) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed [ ] [on or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Datebefore 12/31/13]; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective Date[ ] [on or before 7/15/14].
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer requires such written notice solely for monitoring purposes, which information will be acceptable to and that nothing set forth in this Agreement shall create or impose upon Buyer in its reasonable discretionany responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension of a date for a Critical Milestone as a result of a Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved (i) by one year without posting additional Development Period Security and (ii) by up to two additional six month periods by posting additional Development Period Security of $[ ] [$5 per kWh of Contract Maximum Amount] for each such six- month period. In no event may Seller exercise the right to extend the Critical Milestone dates under this Section 3.1(c) by more than two years, and in no event shall any extension of the Critical Milestone dates as a result of one or more Force Majeure events exceed a cumulative total of an additional twelve (12) months. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Sections 3.1(c), 3.1(d), 3.1(e) and 10.1, commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet hereto, in final form, approvals by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary Massachusetts Energy Facilities Siting Board for construction and operation of the Facility, for the interconnection of the Facility to the Interconnecting UtilityUtility and the construction of Network Upgrades, for in final form and not subject to appeal or rehearing, by ;
(ii) qualification determination notification under ISO-NE Tariff Section III.13.1.1.2.8 by ;
(iii) receipt of all Permits (other than those referenced in Section 3.1(a)(i)) necessary to construct and operate the Facility, as set forth in Exhibit B, in final form, by ;
(iv) the achievement of the Financial Closing Date or other demonstration to Buyer’s reasonable satisfaction of the financial capability of Seller to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementUpgrades, by the date that is sixteen (16) months after the Effective Date;
(iiiv) (A) issuance of a full notice to proceed by Seller to its general construction contractor and (B) commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(vvi) achievement of the Commercial Operation Date by the date that is twenty December 15, 2025 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $899,100 (which is $5,000 per MWh per hour of Contract Maximum Amount) for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents Seller from achieving the Critical Milestone obligation specified in Section 3.1(a)(v)(B) by the deadline stated therein or the Commercial Operation Date by the Guaranteed Commercial Operation Date, such Critical Milestone deadline shall be extended for the duration of the Force Majeure event, but under no circumstances shall such extensions of such Critical Milestone due to all Force Majeure events exceed beyond the date stated in Section 3.1(a)(v)(B) or 3.1(a)(vi), as applicable.
(e) In the event the Regulatory Approval is subject to appeal or rehearing as of the one (1) year anniversary of the Effective Date or is otherwise not received by the one (1) year anniversary of the Effective Date, the date for each Critical Milestone not yet achieved shall be extended on a day-for-day basis for the duration of the delay beyond such one-year period.
(f) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(dg) If Notwithstanding the Facility does not achieve other provisions of this Agreement, or the Output Demonstration by the milestone date set out in Section 3.1(a)(ivrights of Seller under Sections 3.1(c), then (i) Buyer 3.1(d), 3.1(e), 3.2 and 10.1, in no event shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days occur after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Sections 3.1(c), 3.1(d), 3.1(e) and 10.1 commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights in addition to the federal lease referenced in Section 7.2(m) necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by ;
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(viv) achievement of the Commercial Operation Date by the date that is twenty January 15, 2022 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $1,057,000 (which is equal to $5,000 per MWh per hour of the Contract Maximum Amount) for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred, and such event prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv)) by the applicable Critical Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone Dates due to Force Majeure events exceed twenty-four (24) months beyond the applicable Critical Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) In the event that the MDPU Order is appealed, the dates for each of the Critical Milestones that has not been achieved prior to that appeal being filed shall be extended on a day-for-day basis for the period of time from such appeal being filed until such appeal is finally determined; provided, however, that this Section 3.1(e) will not affect the rights of the Parties to terminate this Agreement under Section 8.1.
(f) Notwithstanding the other provisions of this Agreement, or the rights of Seller pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1, in no event shall the Guaranteed Commercial Operation Date be extended beyond .
(g) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;and
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension to a date for a Critical Milestone as a result of Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $11,755.00 for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet hereto, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to ninety percent (90%) of the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within forty-eight (48) months after the Effective Date in the case of a Small Distributed Generation Project that is a hydropower facility and eighteen (18) months after the Effective DateDate in the case of any other Distributed Generation Facility; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective Date.
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved, which information will be acceptable to Buyer in its reasonable discretion.
(c) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) ): receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) [_________]; acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by [_________]; closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) by [__________] [on or before ______]; and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(v) achievement of the Commercial Operation Date by the [___________] [(“Guaranteed Commercial Operation Date”)]. [This date that is twenty (20) months after the Effective Dateshall not be earlier than January 1, 2015 [2013 for MA] and not later than December 31, 2020.
(b) ]. Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will and Buyer shall have no responsibility or liability for the development, construction, operation or maintenance of the Facility. Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $5,000 per MWh per hour of Contract Maximum Amount for each such six-month period. Any such election shall be acceptable made in a written notice delivered to Buyer in its reasonable discretion.
on or prior to the first date for a Critical Milestone that has not yet been achieved (cas such date may have previously been extended). To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)). The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet hereto, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to ninety percent (90%) of the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within (i) forty-eight (48) months after the Effective Date in the case of a Small Distributed Generation Project that is a hydropower facility, (ii) thirty-six (36) months after the Effective Date in the case of an anaerobic digestion facility, and (iii) eighteen (18) months after the Effective DateDate in the case of any other Distributed Generation Facility; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20i) fifty (50) months after the Effective Date.
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved, which information will be acceptable to Buyer in its reasonable discretion.
(c) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages Date in the circumstances stated, and therefore retention case of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein a Small Distributed Generation Project that is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.hydropower facility,
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Sections 3.1(c), 3.1(d), 3.1(e) and 10.1 commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights in addition to the federal lease referenced in Section 7.2(m) necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;and
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(v) achievement of the Commercial Operation Date by the date that is twenty January 15, 2023 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $923,200 (which is equal to $5,000 per MWh per hour of the Contract Maximum Amount) for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred, and such event prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv)) by the applicable Critical Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone Dates due to Force Majeure events exceed twenty-four (24) months beyond the applicable Critical Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) In the event that the MDPU Order is appealed, the dates for each of the Critical Milestones that has not been achieved prior to that appeal being filed shall be extended on a day-for-day basis for the period of time from such appeal being filed until such appeal is finally determined; provided, however, that this Section 3.1(e) will not affect the rights of the Parties to terminate this Agreement under Section 8.1.
(f) Notwithstanding the other provisions of this Agreement, or the rights of Seller pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1, in no event shall the Guaranteed Commercial Operation Date be extended beyond
(g) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by ;
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(viv) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension to a date for a Critical Milestone as a result of Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $18,840.00 for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(c), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date[ ];
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementAgreement as set forth on Exhibit B, by the date that is sixteen (16) months after the Effective Date[ _];
(iii) demonstration of the financial capability (whether through third party financing to Seller or Seller’s own financial assets) to proceed with the development and construction of the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades by [ ] [on or before TBD];
(iv) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed [ ] [on or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Datebefore TBD]; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective Date[ ] [on or before TBD].
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer requires such written notice solely for monitoring purposes, which information will be acceptable to and that nothing set forth in this Agreement shall create or impose upon Buyer in its reasonable discretionany responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension of a date for a Critical Milestone as a result of a Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved (i) by one year without posting additional Development Period Security and (ii) by up to two additional six month periods by posting additional Development Period Security of $[ ] [$5 per kWh of Contract Maximum Amount] for each such six-month period. In no event may Seller exercise the right to extend the Critical Milestone dates under this Section 3.1(c) by more than two years, and in no event shall any extension of the Critical Milestone dates as a result of one or more Force Majeure events exceed a cumulative total of an additional twelve (12) months. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet hereto, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Contract Maximum Amount Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), as determined and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Capacity Output DemonstrationDemonstration Test”) within eighteen (18) months after the Effective Date; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective Date.
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved, which information will be acceptable to Buyer in its reasonable discretion.
(c) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Capacity Output Demonstration Test by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer Xxxxx would incur due to a failure of the Facility to achieve the Capacity Output Demonstration Test would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by ;
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(viv) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension to a date for a Critical Milestone as a result of Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $11,085.00 for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Sections 3.1(c), 3.1(d), 3.1(e) and 10.1 commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights in addition to the federal lease referenced in Section 7.2(m) necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by ;
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(viv) achievement of the Commercial Operation Date by the date that is twenty January 15, 2023 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $1,057,000 (which is equal to $5,000 per MWh per hour of the Contract Maximum Amount) for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred, and such event prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv)) by the applicable Critical Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone Dates due to Force Majeure events exceed twenty-four (24) months beyond the applicable Critical Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) In the event that the MDPU Order is appealed, the dates for each of the Critical Milestones that has not been achieved prior to that appeal being filed shall be extended on a day-for-day basis for the period of time from such appeal being filed until such appeal is finally determined; provided, however, that this Section 3.1(e) will not affect the rights of the Parties to terminate this Agreement under Section 8.1.
(f) Notwithstanding the other provisions of this Agreement, or the rights of Seller pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1, in no event shall the Guaranteed Commercial Operation Date be extended beyond .
(g) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(c), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) ): receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) [_________]; acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementAgreement as set forth on Exhibit B, by [_________]; demonstration of the date that is sixteen financial capability (16whether through third party financing to Seller or Seller’s own financial assets) months after to proceed with the Effective Date;
(iii) development and construction of the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades by [___________] [on or before September 30, 2014]; issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed [___________] [on or insolation), before TBD]; and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective Date.
(b) [___________] [on or before June 30, 2015]. Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer requires such written notice solely for monitoring purposes, which information will and that nothing set forth in this Agreement shall create or impose upon Buyer any responsibility or liability for the development, construction, operation or maintenance of the Facility. In addition to any extension of a date for a Critical Milestone as a result of a Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved (i) by one year without posting additional Development Period Security and (ii) by up to two additional six month periods by posting additional Development Period Security of $[________] [$5 per kWh of Contract Maximum Amount] for each such six-month period. In no event may Seller exercise the right to extend the Critical Milestone dates under this Section 3.1(c) by more than two years, and in no event shall any extension of the Critical Milestone dates as a result of one or more Force Majeure events exceed a cumulative total of an additional twelve (12) months. Any such election shall be acceptable made in a written notice delivered to Buyer in its reasonable discretion.
on or prior to the first date for a Critical Milestone that has not yet been achieved (c) as such date may have previously been extended). The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) ): receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) [_________]; acquisition of all required real property and other site control rights in addition to the federal lease referenced in Section 7.2(m) necessary for construction and operation of the Facility, for the interconnection of the Facility to the Interconnecting UtilityUtility and the construction of Network Upgrades in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by [_________]; the achievement of the Financial Closing Date or other demonstration to Xxxxx’s satisfaction of the financial capability of the Seller to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) [__________]; issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by [__________]; receipt of all Permits necessary to operate the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate orFacility, as set forth in Exhibit B, in the case of a Net Metered Facilityfinal form, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), by [_________]; and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(v) achievement of the Commercial Operation Date by the date that is twenty [___________] (20) months after the Effective “Guaranteed Commercial Operation Date.
(b) ”). Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will and Buyer shall have no responsibility or liability for the development, construction, operation or maintenance of the Facility. Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $5,000 per MWh per hour of Contract Maximum Amount for each such six-month period. Any such election shall be acceptable made in a written notice delivered to Buyer in its reasonable discretion.
on or prior to the first date for a Critical Milestone that has not yet been achieved (cas such date may have previously been extended). To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(vi)) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twenty-four (24) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestones (Section 3.1(a)(i) and (v)) or the Financing Critical Milestone (Section 3.1(a)(iii)). The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If . Notwithstanding the Facility does not achieve other provisions of this Agreement, or the Output Demonstration by the milestone date set out in Section 3.1(a)(ivrights of Seller under Sections 3.1(c), then (i3.1(d) Buyer and 10.1, in no event shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Guaranteed Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.extended beyond [_________].2
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones.
(a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective DateJune 30, 2018;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by March 1, 2019;
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreementby March 1, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date2019; and
(viv) achievement of the Commercial Operation Date by the date that is twenty December 31, 2019 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension to a date for a Critical Milestone as a result of Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $18,840.00 for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective DateOctober 31, 2018;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting Utility, for construction other than real property rights that are the responsibility of the Network Upgrades (to the extent it is Seller’s responsibility to do so) Interconnecting Utility, in full and for performance of Seller’s obligations under this Agreementfinal form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, by the date that is sixteen (16) months after the Effective Financial Closing Date;
(iii) issuance Financial Closing Date or other demonstration to Buyer’s satisfaction of a full notice the financial capability to proceed by Seller construct the Facility, including, as applicable, Seller’s financial obligations with respect to its general construction contractor interconnection of the Facility to the Interconnecting Utility and commencement of construction of the Facility Network Upgrades by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate orOctober 31, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date2018; and
(viv) achievement of the Commercial Operation Date by the date that is twenty September 30, 2019 (20) months after the Effective “Guaranteed Commercial Operation Date.”)
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $44,340 for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1, or a delay of the Interconnection Utility to approve or complete the interconnection of the Facility notwithstanding Seller’s good faith and timely efforts to obtain same (an “Interconnection Utility Delay”), has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone -12- Date(s) impacted by such Force Majeure event or Interconnection Utility Delay shall be extended for the duration of the Force Majeure event or Interconnection Utility Delay, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events or to Interconnection Utility Delays exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(c) and (d), commencing on the Effective Date, Seller shall use commercially reasonable efforts to develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):): --9--
(i) receipt of all Permits necessary to construct the Facility, as set Formatted: Legal1 4, Tabs: 168 pt, forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;December 31, 2012; Deleted: [ ]
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementAgreement as set forth on Exhibit B, by the date that is sixteen (16) months after the Effective DateDecember 31, 2012;
(iii) demonstration of the financial capability (whether through third party financing to Seller or Seller’s own financial assets) to proceed with the development and construction of the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades by December 31, 2012;
(iv) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate orDecember 31, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed 2012; and Deleted: [ ] [on or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
before 12/31/15] (v) achievement of the Commercial Operation Date by the date that is twenty January 1, 2014. Formatted: Heading 3 (20) months after the Effective Date.No TOC), Don't adjust space between Latin and Asian text
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer requires such written notice solely for monitoring purposes, which information will be acceptable to and that nothing set forth in this Agreement shall create or impose upon Buyer in its reasonable discretion.any responsibility or liability for the development, construction, operation or maintenance of the Facility. Left Deleted: [ ] Deleted: [ ] [on or before 12/31/12] Deleted: [ ] [on or before 12/31/12] Deleted: [ ] [$5 per kWh of Contract Maximum Amount]
(c) The Parties agree that time is In addition to any extension of the essence with respect a date for a Critical Milestone as a result of a Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved (i) by one year without posting additional Development Period Security and is part (ii) by up to two additional six month periods by posting additional Development Period Security of for each such six-month period. In no event may Seller exercise the consideration right to Buyer in entering into extend the Critical Milestone dates under this Agreement.Section 3.1(c) by more than two years,
(d) If In addition to any extension of a date for a Critical Milestone as a result of a Force Majeure and notwithstanding anything herein to the Facility does contrary, all of the dates for any Critical Milestone not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then achieved shall be extended on a day-for-day basis for each day (i) Buyer that --10-- and in no event shall retain the full amount any extension of the Performance Guarantee Deposit and Critical Milestone dates as a result of one or more Force Majeure events exceed a cumulative total of an additional twelve (ii12) this Agreement months. Any such election shall automatically terminate be made in a written notice delivered to Buyer on such milestone date, and upon such termination neither Party will have any further liability or prior to the other hereunder. Each Party agrees and acknowledges first date for a Critical Milestone that has not yet been achieved (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such noticemay have previously been extended), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Sections 3.1(c), 3.1(d), 3.1(e) and 10.1 commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights in addition to the federal lease referenced in Section 7.2(m) necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by ;
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(viv) achievement of the Commercial Operation Date by the date that is twenty January 15, 2022 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $923,200 (which is equal to $5,000 per MWh per hour of the Contract Maximum Amount) for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred, and such event prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv)) by the applicable Critical Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone Dates due to Force Majeure events exceed twenty-four (24) months beyond the applicable Critical Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) In the event that the MDPU Order is appealed, the dates for each of the Critical Milestones that has not been achieved prior to that appeal being filed shall be extended on a day-for-day basis for the period of time from such appeal being filed until such appeal is finally determined; provided, however, that this Section 3.1(e) will not affect the rights of the Parties to terminate this Agreement under Section 8.1.
(f) Notwithstanding the other provisions of this Agreement, or the rights of Seller pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1, in no event shall the Guaranteed Commercial Operation Date be extended beyond .
(g) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(c), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date[ ];
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementAgreement as set forth on Exhibit B, by the date that is sixteen (16) months after the Effective Date[ ];
(iii) demonstration of the financial capability (whether through third party financing to Seller or Seller’s own financial assets) to proceed with the development and construction of the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades by [ ] [on or before TBD];
(iv) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed [ ] [on or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Datebefore TBD]; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective Date[ ] [on or before TBD].
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer requires such written notice solely for monitoring purposes, which information will be acceptable to and that nothing set forth in this Agreement shall create or impose upon Buyer in its reasonable discretionany responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension of a date for a Critical Milestone as a result of a Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved (i) by one year without posting additional Development Period Security and (ii) by up to two additional six month periods by posting additional Development Period Security of $[ ] [$5 per kWh of Contract Maximum Amount] for each such six-month period. In no event may Seller exercise the right to extend the Critical Milestone dates under this Section 3.1(c) by more than two years, and in no event shall any extension of the Critical Milestone dates as a result of one or more Force Majeure events exceed a cumulative total of an additional twelve (12) months. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(c), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date[ ];
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementAgreement as set forth on Exhibit B, by the date that is sixteen (16) months after the Effective Date[ ];
(iii) demonstration of the financial capability (whether through third party financing to Seller or Seller’s own financial assets) to proceed with the development and construction of the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades by [ ];
(iv) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date[ ]; and
(v) achievement of the Commercial Operation Date by the date that is twenty [ ] (20) months after the Effective “Guaranteed Commercial Operation Date”), not later than December 31, 2017.
(b) Seller shall provide Buyer and the Department with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer requires such written notice solely for monitoring purposes, which information will be acceptable to and that nothing set forth in this Agreement shall create or impose upon Buyer in its reasonable discretionany responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension of a date for a Critical Milestone as a result of a Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to an additional six months from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $3,000 per MWh per hour of Contract Maximum Amount; provided that in no event shall the exercise of the right to extend the Critical Milestone dates under this Section 3.1(c) and all extensions of the Critical Milestone dates as a result of one or more Force Majeure events under Section 10.1 cause the Critical Milestone dates to be extended in excess of twelve (12) months. Any such election shall be made in a written notice delivered to Buyer and the Department on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended). The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;by
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;and
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension to a date for a Critical Milestone as a result of Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $11,755.00 for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective DateJune 30, 2018;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by March 1, 2019;
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreementby March 1, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date2019; and
(viv) achievement of the Commercial Operation Date by the date that is twenty December 31, 2019 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension to a date for a Critical Milestone as a result of Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $19,980.00 for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(c), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementAgreement as set forth on Exhibit B, by the date that is sixteen (16) months after the Effective Date;by
(iii) issuance demonstration of a full notice the financial capability (whether through third party financing to Seller or Seller’s own financial assets) to proceed by Seller to its general construction contractor with the development and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Outputincluding, that is equivalent as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to Interconnecting Utility and construction of the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed Network Upgrades by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(viv) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective DateNovember 30, 2014.
(b) Seller shall provide Buyer with written notice of the achievement of the Commercial Operation Date within three (3) Business Days of the achievement of the Commercial Operation Date, and for each other Critical Milestone within seven thirty (730) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer requires such written notice solely for monitoring purposes, which information will be acceptable to and that nothing set forth in this Agreement shall create or impose upon Buyer in its reasonable discretionany responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension of a date for a Critical Milestone as a result of a Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved (i) by one year without posting additional Development Period Security and (ii) by up to two additional six month periods by posting additional Development Period Security of $1,012 for each such six-month period. In no event may Seller exercise the right to extend the Critical Milestone dates under this Section 3.1(c) by more than two years, and in no event shall any extension of the Critical Milestone dates as a result of one or more Force Majeure events exceed a cumulative total of an additional twelve (12) months. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;by
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by ;
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(viv) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) In addition to any extension to a date for a Critical Milestone as a result of Force Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $19,980.00 for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(c), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen six (166) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for interconnection of the Facility to the Interconnecting Utility, for construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementAgreement as set forth on Exhibit B, by the date that is sixteen six (166) months after the Effective Date;
(iii) closing of Financing required in order for Seller to proceed with the construction of the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades, by the date that is six (6) months after the Effective Date;
(iv) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen nine (169) months after the Effective Date;
(ivv) achievement execution of an hourly Energy generation rate or, in agreements by Seller and one or more providers of organic feedstock for the case Facility that collectively are adequate to satisfy all of a Net Metered the Facility, hourly Excess Energy Output, ’s feedstock requirements for the first two years after the Commercial Operation Date by the date that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(vvi) achievement of the Commercial Operation Date by the date that is twenty two (202) months years after the Effective Date.
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer requires such written notice solely for monitoring purposes, which information will be acceptable to and that nothing set forth in this Agreement shall create or impose upon Buyer in its reasonable discretionany responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Majeure under Section 10.1, Seller may elect to extend all of the dates for the Critical Milestones not yet achieved (i) by one year without posting additional Development Period Security and, (ii) after such initial one-year extension, by up to two additional six-month periods by posting additional Development Period Security of $22,500 for each such six-month period. In no event may Seller exercise the right to extend the Critical Milestone dates under this Section 3.1(c) by more than two (2) years in total, and in no event shall any extension of the Critical Milestone dates as a result of one or more Force Majeure events exceed a cumulative total of twelve (12) months in addition to any extensions under this Section 3.1(c). Any such election under this Section 3.1(c) shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) The Parties agree that time is of the essence with respect to the dates for Critical Milestones (as the same may be extended pursuant to Section 3.1(c)) and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v3.1(a)(vi), as may be extended under Section 3.1(c), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunderhereunder except for obligations arising under Section 6.1 and Article 12.
(f) If Seller fails to make material progress toward the Commercial Operation Date, as reasonably determined by either Buyer or the PUC based on Seller’s progress with respect to the milestones set forth in Section 3.1(a), within three (3) years after the Agreement Date, Buyer may terminate this Agreement by written notice to Seller delivered within sixty (60) days after the third anniversary of the Agreement Date (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder except for obligations arising under Section 6.1 and Article 12.
Appears in 1 contract
Critical Milestones. (a) Commencing Subject to the provisions of Sections 3.1(c), 3.1(d), 3.1(e) and 10.1, commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet hereto, in final form, approvals by the date that is sixteen (16) months after the Effective Date;
(ii) acquisition of all required real property and other site control rights necessary Massachusetts Energy Facilities Siting Board for construction and operation of the Facility, for the interconnection of the Facility to the Interconnecting UtilityUtility and the construction of Network Upgrades, for in final form and not subject to appeal or rehearing, by ;
(ii) qualification determination notification under ISO-NE Tariff Section III.13.1.1.2.8 by ;
(iii) receipt of all Permits (other than those referenced in Section 3.1(a)(i)) necessary to construct and operate the Facility, as set forth in Exhibit B, in final form, by ;
(iv) the achievement of the Financial Closing Date or other demonstration to Buyer’s reasonable satisfaction of the financial capability of Seller to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this AgreementUpgrades, by the date that is sixteen (16) months after the Effective Date;
(iiiv) (A) issuance of a full notice to proceed by Seller to its general construction contractor and (B) commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(vvi) achievement of the Commercial Operation Date by the date that is twenty September 1, 2025 (20) months after the Effective “Guaranteed Commercial Operation Date”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $1,093,850 (which is $5,000 per MWh per hour of Contract Maximum Amount) for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents Seller from achieving the Critical Milestone obligation specified in Section 3.1(a)(v)(B) by the deadline stated therein or the Commercial Operation Date by the Guaranteed Commercial Operation Date, such Critical Milestone deadline shall be extended for the duration of the Force Majeure event, but under no circumstances shall such extensions of such Critical Milestone due to all Force Majeure events exceed beyond the date stated in Section 3.1(a)(v)(B) or 3.1(a)(vi), as applicable.
(e) In the event the Regulatory Approval is subject to appeal or rehearing as of the one (1) year anniversary of the Effective Date or is otherwise not received by the one (1) year anniversary of the Effective Date, the date for each Critical Milestone not yet achieved shall be extended on a day-for-day basis for the duration of the delay beyond such one-year period.
(f) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(dg) If Notwithstanding the Facility does not achieve other provisions of this Agreement, or the Output Demonstration by the milestone date set out in Section 3.1(a)(ivrights of Seller under Sections 3.1(c), then (i) Buyer 3.1(d), 3.1(e), 3.2 and 10.1, in no event shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days occur after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of SectionSections 3.1(c), 3.1(d), 3.1(e) and 10.1 commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date[ ]; ;
(ii) acquisition of all required real property and other site control rights in additionaladdition to the federal lease referenced in Section 7.2(m) necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, for by [ ]; ;
(iii) closing of the Financing or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed [ ] [on or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Datebefore ]; ; and
(viv) achievement of the Commercial Operation Date by the [ ] [(“January 15, 2023 (“Guaranteed Commercial Operation Date”)]. [This date that is twenty (shall not be earlier than January 1, 2018 and not later than December 31, 20) months after the Effective Date[ ].].”).
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $19,800 (which is equal to $5,000 per MWh per hour of the Contract Maximum Amount) for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1 has occurred that, and such event prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv))) by the applicable Critical Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone datesDates due to Force Majeure events exceed twelve (12twenty-four (24) months beyond the applicable Critical Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) In the event that the MDPU Order is appealed, the dates for each of the Critical Milestones that has not been achieved prior to that appeal being filed shall be extended on a day-for-day basis for the period of time from such appeal being filed until such appeal is finally determined; provided, however, that this Section 3.1(e) will not affect the rights of the Parties to terminate this Agreement under Section 8.1. .
(f) Notwithstanding the other provisions of this Agreement, or the rights of Seller pursuant to Sections 3.1(c), 3.1(d), 3.1(e) and 10.1, in no event shall the Guaranteed Commercial Operation Date be extended beyond
(e) (g) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) ): receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective Date;
(ii) ; acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting UtilityUtility in full and final form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, closing of the Financing adequate for the development and construction of the Facility or other demonstration to Buyer’s satisfaction of the financial capability to construct the Facility, including, as applicable, Seller’s financial obligations with respect to interconnection of the Facility to the Interconnecting Utility and construction of the Network Upgrades (to the extent it is Seller’s responsibility to do so) by ; and for performance of Seller’s obligations under this Agreement, by the date that is sixteen (16) months after the Effective Date;
(iii) issuance of a full notice to proceed by Seller to its general construction contractor and commencement of construction of the Facility by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate or, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date; and
(v) achievement of the Commercial Operation Date by the date that is twenty (20) months after the Effective “Guaranteed Commercial Operation Date.
(b) ”). Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will and Buyer shall have no responsibility or liability for the development, construction, operation or maintenance of the Facility. Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to for each such six-month period. Any such election shall be acceptable made in a written notice delivered to Buyer in its reasonable discretion.
on or prior to the first date for a Critical Milestone that has not yet been achieved (cas such date may have previously been extended). To the extent a Force Majeure event pursuant to Section 10.1 has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event shall be extended for the duration of the Force Majeure event, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events exceed eighteen (18) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)). The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
Critical Milestones. (a) Commencing Subject to the provisions of Section 3.1(d), commencing on the Effective Date, Seller shall develop the Facility in order to achieve the following milestones (“Critical Milestones”) on or before the date dates set forth in this Section 3.1(a):
(i) receipt of all Permits necessary to construct the Facility, as set forth on the Cover Sheet heretoin Exhibit B, in final form, by the date that is sixteen (16) months after the Effective DateOctober 31, 2018;
(ii) acquisition of all required real property and other site control rights necessary for construction and operation of the Facility, for Facility and the interconnection of the Facility to the Interconnecting Utility, for construction other than real property rights that are the responsibility of the Network Upgrades (to the extent it is Seller’s responsibility to do so) Interconnecting Utility, in full and for performance of Seller’s obligations under this Agreementfinal form with all options and/or contingencies having been exercised demonstrating complete site control as set forth in Exhibit B, by the date that is sixteen (16) months after the Effective Financial Closing Date;
(iii) issuance Financial Closing Date or other demonstration to Buyer’s satisfaction of a full notice the financial capability to proceed by Seller construct the Facility, including, as applicable, Seller’s financial obligations with respect to its general construction contractor interconnection of the Facility to the Interconnecting Utility and commencement of construction of the Facility Network Upgrades by the date that is sixteen (16) months after the Effective Date;
(iv) achievement of an hourly Energy generation rate orOctober 31, in the case of a Net Metered Facility, hourly Excess Energy Output, that is equivalent to the Proposed Hourly Output for at least four complete hours (which do not need to be four consecutive hours), which amount shall be adjusted to the extent required to reflect a lack of availability of a motive energy (such as wind speed or insolation), and other factors, as proposed by Seller’s engineer and accepted by Buyer in its reasonable discretion (the “Output Demonstration”) within eighteen (18) months after the Effective Date2018; and
(viv) achievement of the Commercial Operation Date by the date that is twenty September 30, 2019 (20) months after the Effective “Guaranteed Commercial Operation Date.”)
(b) Seller shall provide Buyer with written notice of the achievement of each Critical Milestone within seven (7) days after that achievement, which notice shall include information demonstrating with reasonable specificity that such Critical Milestone has been achieved. Seller acknowledges that Buyer will receive such notice solely to monitor progress toward the Commercial Operation Date, which information will be acceptable to and Buyer in its reasonable discretionshall have no responsibility or liability for the development, construction, operation or maintenance of the Facility.
(c) Seller may elect to extend all of the dates for the Critical Milestones not yet achieved by up to four six-month periods from the applicable dates set forth in Section 3.1(a) by posting additional Development Period Security in an amount equal to $47,020 for each such six-month period. Any such election shall be made in a written notice delivered to Buyer on or prior to the first date for a Critical Milestone that has not yet been achieved (as such date may have previously been extended).
(d) To the extent a Force Majeure event pursuant to Section 10.1, or a delay of the Interconnection Utility to approve or complete the interconnection of the Facility notwithstanding Seller’s good faith and timely efforts to obtain same (an “Interconnection Utility Delay”), has occurred that prevents the Seller from achieving the Critical Milestone date for acquisition of real property rights and interconnection (Section 3.1(a)(ii)) or the Commercial Operation Date (Section 3.1(a)(iv) by the applicable Milestone date, the Critical Milestone Date(s) impacted by such Force Majeure event or Interconnection Utility Delay shall be extended for the duration of the Force Majeure event or Interconnection Utility Delay, but under no circumstances shall extensions of those Critical Milestone dates due to Force Majeure events or to Interconnection Utility Delays exceed twelve (12) months beyond the applicable Milestone date, and further provided, that the Seller shall not have the right to declare a Force Majeure event related to the Permits Critical Milestone (Section 3.1(a)(i)) or the Financing Critical Milestone (Section 3.1(a)(iii)).
(e) The Parties agree that time is of the essence with respect to the dates for Critical Milestones and is part of the consideration to Buyer in entering into this Agreement.
(d) If the Facility does not achieve the Output Demonstration by the milestone date set out in Section 3.1(a)(iv), then (i) Buyer shall retain the full amount of the Performance Guarantee Deposit and (ii) this Agreement shall automatically terminate on such milestone date, and upon such termination neither Party will have any further liability to the other hereunder. Each Party agrees and acknowledges that (i) the damages that Buyer would incur due to a failure of the Facility to achieve the Output Demonstration would be difficult or impossible to predict with certainty, and (ii) it is impractical and difficult to assess actual damages in the circumstances stated, and therefore retention of the Performance Guarantee Deposit as agreed to by the Parties and set forth herein is a fair and reasonable calculation of such damages.
(e) If the Facility does not achieve the Commercial Operation Date by the Commercial Operation Date milestone set out in Section 3.1(a)(v), either Party may terminate this Agreement within sixty (60) days after such date by written notice to the other Party (which termination shall be effective upon delivery of such notice), and upon such termination neither Party will have any further liability to the other hereunder.
Appears in 1 contract
Samples: Power Purchase Agreement
