Common use of Demonstration of Final Acceptance Clause in Contracts

Demonstration of Final Acceptance. Final Acceptance of the Facility shall be achieved hereunder if the following conditions have been met: (a) Contractor has caused a Completed Performance Test in accordance with Section 6.2 hereof to be concluded in which the Facility, while operating separately on Gas and on Fuel Oil, demonstrates during such Performance Test an average net electrical output and a net heat rate (each as measured and corrected to the design operating conditions, all in accordance with the procedures set forth in Appendix D hereto) of 100% (or higher) of each of the corresponding Gas-based and Fuel Oil-based Electrical Output Guarantees and 100% (or lower) of each of the corresponding Gas-based and Fuel Oil-based Heat Rate Guarantees (provided that each such level of achievement shall be calculated in the manner described in Sections 8.1.1 and 8.1.2 hereof, respectively); provided, however, that (i) if any correction, repair or replacement work has been required to be made to the Facility pursuant to Article 10 hereof or pursuant to the Maintenance Agreement or if Contractor has made any modifications to the Facility, in either case since the date of such Completed Performance Test which work or modifications could reasonably be expected to adversely affect the performance of the Facility, or (ii) if such Completed Performance Test was based upon a temporary waiver or variance or other temporary grace period with Owner's agreement in accordance with the proviso to Section 6.2.7 hereof, then Owner may require Contractor to conduct another Completed Performance Test of the Facility in accordance with Section 6.2 hereof, which Completed Performance Test shall be utilized for purposes of this Section 6.5.1(a); (b) In the event that neither Provisional Acceptance nor Interim Acceptance of the Facility shall have theretofore occurred hereunder or in the event that Owner shall have requested that a new Completed PPA Output Test be conducted in connection with Final Acceptance of the Facility, Contractor has caused a Completed PPA Output Test in accordance with Section 6.2 hereof to be concluded in which the Facility demonstrates (i) a 77 level of achievement of 100% (or higher) of the Gas-based Electrical Output Guarantee, while operating on Gas (with such level of achievement to be calculated in the manner set forth in Part B of Appendix D hereto), and (ii) to the Utility's reasonable satisfaction, the other capabilities required to be so demonstrated pursuant to Part B of Appendix B hereto; (c) the Facility has achieved, and continues to satisfy the requirements for the achievement of, Mechanical Completion; (d) the Reliability Guarantee has been achieved pursuant to Section 6.6 hereof; and (e) Contractor has completed performance of the Services except for (i) Punch List items and (ii) Services that are required by the terms of this Agreement to be completed after the achievement of Final Acceptance (such as Contractor's warranty obligations under Article 10 hereof).

Demonstration of Final Acceptance. Final Acceptance of the Facility shall be achieved hereunder if the following conditions have been met: (a) Contractor has caused a Completed Performance Test in accordance with Section 6.2 hereof to be concluded in which the Facility, while operating separately on Gas and on Fuel OilGas, demonstrates during such Performance Test an average net electrical output and a net heat rate (each as measured and corrected to the design operating conditions, all in accordance with the procedures set forth in Appendix D hereto) of 100% [*] (or higher) of each of the corresponding Gas-based and Fuel Oil-based Electrical Output Guarantees Guarantee and 100% [*] (or lower) of each of the corresponding Gas-based and Fuel Oil-based Heat Rate Guarantees Guarantee (provided PROVIDED that each such level of achievement shall be calculated in the manner described in Sections 8.1.1 and 8.1.2 hereof, respectively); providedPROVIDED, howeverHOWEVER, that (i) if any correction, repair or replacement work has been required to be made to the Facility pursuant to Article 10 hereof or pursuant to the Maintenance Agreement or if Contractor has made any modifications or repairs to the Facility, in either case Facility since the date of such Completed Performance Test Test, which work modifications or modifications repairs could reasonably be expected to adversely affect the performance of the Facility, and Contractor has not reversed such modifications or (ii) if such Completed Performance Test was based upon a temporary waiver or variance or other temporary grace period with repairs to Owner's agreement in accordance with (and the proviso to Section 6.2.7 hereofIndependent Engineer's) satisfaction, then Owner may require Contractor to conduct another Completed Performance Test of on the Facility in accordance with Section 6.2 hereof, which Completed Performance Test shall be utilized for purposes of this Section 6.5.1 (a) For the avoidance of doubt, the Parties acknowledge and agree that if Contractor shall (a) shall not require Contractor to reperform a Completed Performance Test in order to maintain its already-demonstrated Provisional Acceptance; however, Contractor shall not be entitled to claim improved performance levels at Final Acceptance pursuant to this Section 6.5.1(a)) after such modifications or repairs have been made without demonstrating such improved performance pursuant to a Completed Performance Test; (b) In The Facility has achieved Mechanical Completion, and Contractor has not made any modification or repair following the event date of achievement of Mechanical Completion that neither Provisional Acceptance nor Interim Acceptance could reasonably be expected, in the judgment of Owner and the Independent Engineer, to adversely affect the performance of the Facility shall have theretofore occurred hereunder or in the event that Owner shall have requested that a new Completed PPA Output Test be conducted in connection with Final Acceptance of the Facility, unless Contractor has caused a Completed PPA Output Test in accordance with Section 6.2 hereof reversed such modification or repair to be concluded in which Owner's (and the Facility demonstrates (iIndependent Engineer's) a 77 level of achievement of 100% (or higher) of the Gas-based Electrical Output Guarantee, while operating on Gas (with such level of achievement to be calculated in the manner set forth in Part B of Appendix D hereto), and (ii) to the Utility's reasonable satisfaction, the other capabilities required to be so demonstrated pursuant to Part B of Appendix B hereto; (c) the Facility has achieved, and continues to satisfy the requirements for the achievement of, Mechanical Completion; (d) the The Reliability Guarantee has been achieved pursuant to Section 6.6 hereof; and (ed) Contractor has completed performance of the Services except for (i) any remaining Punch List items and (ii) Services that are required by the terms of this Agreement to be completed after the achievement of Final Acceptance (such as Contractor's warranty obligations under Article 10 hereof).