Milestone Schedule; Daily Delay Damages. Appendix D sets out a schedule of certain milestones for the Project through the Commercial Operation Date (each such milestone, a “Milestone”) and dates associated with each Milestone (each such date, a “Milestone Date”), including the Guaranteed Commercial Operation Date and Outside Commercial Operation Date. Seller shall use Commercially Reasonable Efforts to achieve each Milestone on or before the Milestone Date specified therefor and Seller guarantees that Commercial Operation will be achieved on or before the Outside Commercial Operation Date, as the same may be extended pursuant to Section 2.5(c). (a) Within fifteen days after the close of each quarter from the first quarter following the Effective Date until the Commercial Operation Date, Seller shall provide Buyer a quarterly progress report. The quarterly progress reports shall describe Seller’s development and construction progress and indicate whether Seller has met or is on target to meet the Milestones. (b) If Seller fails to achieve any Milestone on or before the applicable Milestone Date, Seller shall promptly notify Buyer of such failure and provide an estimated date by which the Milestone will be achieved. (c) Each Milestone (and each subsequent Milestone, including the Guaranteed Commercial Operation Date and Outside Commercial Operation Date) shall be extended to the extent an Excused Delay occurs, subject in the case of an Excused Delay set forth in clause (a), (b) or (c) of the definition thereof to a maximum extension of three hundred sixty-five (365) days. Promptly following the occurrence of any Excused Delay and Seller’s knowledge thereof, Seller shall give notice thereof to Buyer and be entitled to an extension to each Milestone Date as set forth in this paragraph. To the extent an Excused Delay set forth in clause (a), (b) or (c) of the definition thereof occurs and lasts for more than three hundred sixty-five (365) days, either Party shall be entitled to terminate this Agreement and Buyer shall return any Development Security to Seller promptly following such termination; provided that if such termination occurs after the date the Ute Mountain Ute Lease Approvals are obtained, Seller shall not be entitled to a return of its Development Security. (d) Seller may from time to time commence delivery of Energy on a sustained basis from part of the Project with an aggregate capacity of at least 5 megawatts (alternating current) (an “Early Project Block”), and Buyer shall pay the Monthly Contract Products Charge for any Contract Products delivered from such Early Project Block. In no event will Seller deliver Energy from Early Project Blocks for more than one hundred eighty (180) days prior to the Commercial Operation Date. (e) If the Project fails to achieve Commercial Operation by the Guaranteed Commercial Operation Date (as extended pursuant to Section 2.5(c)), Seller shall pay Buyer liquidated damages in the amount of One Hundred Dollars ($100) per megawatt (alternating current) of Nameplate Capacity per day (“Daily Delay Damages”) of the Project which has not yet achieved commercial operations, for each day between the Guaranteed Commercial Operation Date and the actual Commercial Operation Date or the Outside Commercial Operation Date, whichever is earlier. (f) The Parties agree that (i) the damages that Buyer would incur due to Seller’s failure to timely achieve Commercial Operation by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and it is impractical or unreasonably difficult to assess actual damages in those circumstances, (ii) the Daily Delay Damages are a fair and reasonable calculation of such damages for Seller’s failure to achieve Commercial Operation by the Guaranteed Commercial Operation Date and (iii) Seller shall not in any event be liable for Daily Delay Damages in the aggregate exceeding the amount of the Development Security.
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Milestone Schedule; Daily Delay Damages. Appendix D sets out a schedule of certain milestones for the Project through the Commercial Operation Date (each such milestone, a “Milestone”) and dates associated with each Milestone (each such date, a “Milestone Date”), including the Guaranteed Commercial Operation Date and Outside Commercial Operation Date. Seller shall use Commercially Reasonable Efforts to achieve each Milestone on or before the Milestone Date specified therefor and Seller guarantees that Commercial Operation will be achieved on or before the Outside Commercial Operation Date, as the same may be extended pursuant to Section 2.5(c).
(a) Within fifteen days after the close of each quarter from the first quarter following the Effective Date until the Commercial Operation Date, Seller shall provide Buyer a quarterly progress report. The quarterly progress reports shall describe Seller’s development and construction progress and indicate whether Seller has met or is on target to meet the Milestones.
(b) If Seller fails to achieve any Milestone on or before the applicable Milestone Date, Seller shall promptly notify Buyer of such failure and provide an estimated date by which the Milestone will be achieved.
(c) Each Milestone (and each subsequent Milestone, including the Guaranteed Commercial Operation Date and Outside Commercial Operation Date) shall be extended to the extent an Excused Delay occurs, subject in the case of an Excused Delay set forth in clause (a), (b) or (c) of the definition thereof to a maximum extension of three hundred sixty-five (365) days. Promptly following the occurrence of any Excused Delay and Seller’s knowledge thereof, Seller shall give notice thereof to Buyer and be entitled to an extension to each Milestone Date as set forth in this paragraph. To the extent an Excused Delay set forth in clause (a), (b) or (c) of the definition thereof occurs and lasts for more than three hundred sixty-five (365) days, either Party shall be entitled to terminate this Agreement and Buyer shall return any Development Security to Seller promptly following such termination; provided that if such termination occurs after the date the Ute Mountain Ute Lease Approvals are obtained, Seller shall not be entitled to a return of its Development Security.
(d) Seller may from time to time commence delivery of Energy on a sustained basis from part of the Project with an aggregate capacity of at least 5 megawatts (alternating current) (an “Early Project Block”), and Buyer shall pay the Monthly Contract Products Charge for any Contract Products delivered from such Early Project Block. In no event will Seller deliver Energy from Early Project Blocks for more than one hundred eighty (180) days prior to the Commercial Operation Date.
(e) If the Project fails to achieve Commercial Operation by the Guaranteed Commercial Operation Date (as extended pursuant to Section 2.5(c)), Seller shall pay Buyer liquidated damages in the amount of One Hundred Dollars ($100) per megawatt (alternating current) of Nameplate Capacity per day (“Daily Delay Damages”) of the Project which has not yet achieved commercial operations, for each day between the Guaranteed Commercial Operation Date and the actual Commercial Operation Date or the Outside Commercial Operation Date, whichever is earlier.
(f) The Parties agree that (i) the damages that Buyer would incur due to Seller’s failure to timely achieve Commercial Operation by the Guaranteed Commercial Operation Date would be difficult or impossible to predict with certainty, and it is impractical or unreasonably difficult to assess actual damages in those circumstances, (ii) the Daily Delay Damages are a fair and reasonable calculation of such damages for Seller’s failure to achieve Commercial Operation by the Guaranteed Commercial Operation Date and (iii) Seller shall not in any event be liable for Daily Delay Damages in the aggregate exceeding the amount of the Development Security.
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