Common use of Modifications to Project Clause in Contracts

Modifications to Project. Grant Recipient shall provide prior written notice to NYSERDA of all proposed Material Modifications to the Project and shall inform NYSERDA of all other proposed modifications to the Project in a timely manner. A proposed modification shall constitute a “Material Modification” for purposes of this Agreement, in each case, requiring NYSERDA approval unless (1) the change to the Project is de minimis (as reasonably determined by Grant Recipient); (2) the change does not require (a) further review under SEQRA or (b) new or material amendments to government permits or approvals issued or previously identified for the Project; and (3) the change does not involve changes to the expected date of Substantial Completion. NYSERDA shall have thirty (30) days from the date of receipt of written notice of a Material Modification from Grant Recipient to approve, provide comments on, or disapprove of such Material Modification. In the event that NYSERDA fails to comment upon or disapprove such Material Modification within thirty (30) days of the receipt of such notice, NYSERDA shall be deemed to have approved the proposed Material Modification. Grant Recipient will cooperate in good faith and consider NYSERDA’s proposed comments or changes to the proposed Material Modifications, provide information reasonably requested by NYSERDA in respect of such modifications, and provide NYSERDA with reasonable access to the site and contractors during normal working hours for the purpose of NYSERDA’s consideration of such modifications upon not less than two (2) Business Days advance written notice. NYSERDA will cooperate in good faith with Grant Recipient to reach prompt agreement on any Material Modification and acknowledges that other parties may have approval rights over the same Material Modification. NYSERDA’s approval of a proposed modification shall not be unreasonably withheld, conditioned, or delayed. NYSERDA may not withhold, condition, or delay approval based upon Grant Recipient’s decision to reject changes recommended by NYSERDA that would have the effect of materially increasing (as reasonably determined by Grant Recipient) the costs of, or delaying completion of, the Project. Notwithstanding anything to the contrary set forth above, the approval process described above shall not apply to any modifications that Grant Recipient reasonably determines are required by a Change in Law, governmental authority or otherwise required under the terms of an agreement governing Project Site control (excluding for the purposes of this sentence where such modification is itself a requirement of a new permit or an amendment to an existing permit). Grant Recipient shall make commercially reasonable efforts to cooperate with, and provide information to, NYSERDA in connection with any Material Modification to ensure continued compliance with SEQRA and applicable law. In the event that Grant Recipient receives notice of any material modifications to the Project that will require a new permit, a material amendment to an existing permit or other substantive government approval, Grant Recipient will promptly inform NYSERDA, and NYSERDA agrees to participate in any supplemental environmental review that may be required. No approval from NYSERDA shall constitute authorization to waive or not comply with applicable law. In the event Grant Recipient receives Qualifying Federal Support, Grant Recipient shall determine the QFS Amount and promptly provide notice of the same to NYSERDA, including supporting calculations thereto. Grant Recipient shall also make available or cause to be made available to NYSERDA all books and records in its control that are reasonably necessary to determine the QFS Amount and shall use commercially reasonable efforts to provide NYSERDA with any other books and records reasonably requested by NYSERDA. Except with respect to transaction costs and expenses incurred by Grant Recipient in connection with obtaining Qualifying Federal Support, which shall be for Grant Recipient’s account, the QFS Amount shall be calculated on a net basis, taking into account any reduction in current or future economic value or costs incurred as a result of Grant Recipient’s realization of the applicable Qualifying Federal Support. For example, the Parties acknowledge and agree that, to qualify for a higher level of Qualifying Federal Support, Grant Recipient may be required to incur increased costs related to development, construction or operation of the Project including costs related to new U.S. content or similar sourcing requirements, prevailing wage requirements or apprenticeship requirements. For the avoidance of doubt, if Grant Recipient incurs such increased costs for the purpose of qualifying for such higher level of support, the QFS Amount shall be reasonably adjusted by Grant Recipient to reflect the total economic value of the Qualifying Federal Support after accounting for such increased costs. In the event Grant Recipient receives Qualifying Federal Support for the Project, the amount of Grant Proceeds owed by NYSERDA to Grant Recipient under this Agreement shall be reduced by fifty cents for each dollar of the QFS Amount, regardless of whether or not such Grant Proceeds have been previously disbursed to Grant Recipient. NYSERDA shall provide notice to Grant Recipient of any adjustment required under this Section IV.D to the amount of Grant Proceeds owed under this Agreement, and any refunds due to NYSERDA as a result of such Adjustment. In the event NYSERDA determines that any Grant Proceeds must be refunded due to the receipt by Grant Recipient of Qualifying Federal Support, Grant Recipient shall deliver such Proceeds to NYSERDA within thirty (30) calendar days of notice of same.

Modifications to Project. 1. Grant Recipient shall provide prior written notice to NYSERDA of all proposed Material Modifications to the Project and shall inform NYSERDA of all other proposed modifications to the Project in a timely manner. 2. A proposed modification shall constitute a “Material Modification” for purposes of this Agreement, in each case, requiring NYSERDA approval unless (1) the change to the Project is de minimis (as reasonably determined by Grant Recipient); (2) the change does not require (a) further review under SEQRA or (b) new or material amendments to government permits or approvals issued or previously identified for the Project; and (3) the change does not involve changes to the expected date of Substantial Completion. 3. NYSERDA shall have thirty (30) days from the date of receipt of written notice of a Material Modification from Grant Recipient to approve, provide comments on, or disapprove of such Material Modification. In the event that NYSERDA fails to comment upon or disapprove such Material Modification within thirty (30) days of the receipt of such notice, NYSERDA shall be deemed to have approved the proposed Material Modification. 4. Grant Recipient will cooperate in good faith and consider NYSERDA’s proposed comments or changes to the proposed Material Modifications, provide information reasonably requested by NYSERDA in respect of such modifications, and provide NYSERDA with reasonable access to the site and contractors during normal working hours for the purpose of NYSERDA’s consideration of such modifications upon not less than two (2) Business Days advance written notice. NYSERDA will cooperate in good faith with Grant Recipient to reach prompt agreement on any Material Modification and acknowledges that other parties may have approval rights over the same Material Modification. NYSERDA’s approval of a proposed modification shall not be unreasonably withheld, conditioned, or delayed. NYSERDA may not withhold, condition, or delay approval based upon Grant Recipient’s decision to reject changes recommended by NYSERDA that would have the effect of materially increasing (as reasonably determined by Grant Recipient) the costs of, or delaying completion of, the Project. 5. Notwithstanding anything to the contrary set forth above, the approval process described above shall not apply to any modifications that Grant Recipient reasonably determines are required by a Change in Law, governmental authority or otherwise required under the terms of an agreement governing Project Site control (excluding for the purposes of this sentence where such modification is itself a requirement of a new permit or an amendment to an existing permit). 6. Grant Recipient shall make commercially reasonable efforts to cooperate with, and provide information to, NYSERDA in connection with any Material Modification to ensure continued compliance with SEQRA and applicable law. In the event that Grant Recipient receives notice of any material modifications to the Project that will require a new permit, a material amendment to an existing permit or other substantive government approval, Grant Recipient will promptly inform NYSERDA, and NYSERDA agrees to participate in any supplemental environmental review that may be required. No approval from NYSERDA shall constitute authorization to waive or not comply with applicable law. In the event Grant Recipient receives Qualifying Federal Support, Grant Recipient shall determine the QFS Amount and promptly provide notice of the same to NYSERDA, including supporting calculations thereto. Grant Recipient shall also make available or cause to be made available to NYSERDA all books and records in its control that are reasonably necessary to determine the QFS Amount and shall use commercially reasonable efforts to provide NYSERDA with any other books and records reasonably requested by NYSERDA. Except with respect to transaction costs and expenses incurred by Grant Recipient in connection with obtaining Qualifying Federal Support, which shall be for Grant Recipient’s account, the QFS Amount shall be calculated on a net basis, taking into account any reduction in current or future economic value or costs incurred as a result of Grant Recipient’s realization of the applicable Qualifying Federal Support. For example, the Parties acknowledge and agree that, to qualify for a higher level of Qualifying Federal Support, Grant Recipient may be required to incur increased costs related to development, construction or operation of the Project including costs related to new U.S. content or similar sourcing requirements, prevailing wage requirements or apprenticeship requirements. For the avoidance of doubt, if Grant Recipient incurs such increased costs for the purpose of qualifying for such higher level of support, the QFS Amount shall be reasonably adjusted by Grant Recipient to reflect the total economic value of the Qualifying Federal Support after accounting for such increased costs. In the event Grant Recipient receives Qualifying Federal Support for the Project, the amount of Grant Proceeds owed by NYSERDA to Grant Recipient under this Agreement shall be reduced by fifty cents for each dollar of the QFS Amount, regardless of whether or not such Grant Proceeds have been previously disbursed to Grant Recipient. NYSERDA shall provide notice to Grant Recipient of any adjustment required under this Section IV.D to the amount of Grant Proceeds owed under this Agreement, and any refunds due to NYSERDA as a result of such Adjustment. In the event NYSERDA determines that any Grant Proceeds must be refunded due to the receipt by Grant Recipient of Qualifying Federal Support, Grant Recipient shall deliver such Proceeds to NYSERDA within thirty (30) calendar days of notice of same.

Modifications to Project. Grant Recipient shall provide prior written notice to NYSERDA of all proposed Material Modifications to the Project and shall inform NYSERDA of all other proposed modifications to the Project in a timely manner. A proposed modification shall constitute a “Material Modification” for purposes of this Agreement, in each case, requiring NYSERDA approval unless (1) the change to the Project is de minimis (as reasonably determined by Grant RecipientNYSERDA); (2) the change does not require (a) further review under SEQRA or (b) new or material amendments to government permits or approvals issued or previously identified for the Project; and (3) the change does not involve changes to the expected date of Substantial Completion. NYSERDA shall have thirty (30) days from the date of receipt of written notice of a Material Modification from Grant Recipient to approve, provide comments on, or disapprove of such Material Modification. In the event that NYSERDA fails to comment upon or disapprove such Material Modification within thirty (30) days of the receipt of such notice, NYSERDA shall be deemed to have approved the proposed Material Modification. Grant Recipient will cooperate in good faith and consider NYSERDA’s proposed comments or changes to the proposed Material Modifications, provide information reasonably requested by NYSERDA in respect of such modifications, and provide NYSERDA with reasonable access to the site and contractors during normal working hours for the purpose of NYSERDA’s consideration of such modifications upon not less than two (2) Business Days advance written notice. NYSERDA will cooperate in good faith with Grant Recipient to reach prompt agreement on any Material Modification and acknowledges that other parties may have approval rights over the same Material Modification. NYSERDA’s approval of a proposed modification shall not be unreasonably withheld, conditioned, or delayed. NYSERDA may not withhold, condition, or delay approval based upon Grant Recipient’s decision to reject changes recommended by NYSERDA that would have the effect of materially increasing (as reasonably determined by Grant Recipient) the costs of, or delaying completion of, the Project. Notwithstanding anything to the contrary set forth above, the approval process described above shall not apply to any modifications that Grant Recipient reasonably determines are required by a Change in Law, governmental authority or otherwise required under the terms of an agreement governing Project Site control (excluding for the purposes of this sentence where such modification is itself a requirement of a new permit or an amendment to an existing permit). Grant Recipient shall make commercially reasonable efforts to cooperate with, and provide information to, NYSERDA in connection with any Material Modification to ensure continued compliance with SEQRA and applicable law. In the event that Grant Recipient receives notice of any material modifications to the Project that will require a new permit, a material amendment to an existing permit or other substantive government approval, Grant Recipient will promptly inform NYSERDA, and NYSERDA agrees to participate in any supplemental environmental review that may be required. No approval from NYSERDA shall constitute authorization to waive or not comply with applicable law. In the event Grant Recipient receives Qualifying Federal Support, Grant Recipient shall determine the QFS Amount and promptly provide notice of the same to NYSERDA, including supporting calculations thereto. Grant Recipient shall also make available or cause to be made available to NYSERDA all books and records in its control that are reasonably necessary to determine the QFS Amount and shall use commercially reasonable efforts to provide NYSERDA with any other books and records reasonably requested by NYSERDA. Except with respect to transaction costs and expenses incurred by Grant Recipient in connection with obtaining Qualifying Federal Support, which shall be for Grant Recipient’s account, the QFS Amount shall be calculated on a net basis, taking into account any reduction in current or future economic value or costs incurred as a result of Grant Recipient’s realization of the applicable Qualifying Federal Support. For example, the Parties acknowledge and agree that, to qualify for a higher level of Qualifying Federal Support, Grant Recipient may be required to incur increased costs related to development, construction or operation of the Project including costs related to new U.S. content or similar sourcing requirements, prevailing wage requirements or apprenticeship requirements. For the avoidance of doubt, if Grant Recipient incurs such increased costs for the purpose of qualifying for such higher level of support, the QFS Amount shall be reasonably adjusted by Grant Recipient to reflect the total economic value of the Qualifying Federal Support after accounting for such increased costs. In the event Grant Recipient receives Qualifying Federal Support for the Project, the amount of Grant Proceeds owed by NYSERDA to Grant Recipient under this Agreement shall be reduced by fifty cents for each dollar of the QFS Amount, regardless of whether or not such Grant Proceeds have been previously disbursed to Grant Recipient; provided that if the Grant Recipient demonstrates to NYSERDA’s satisfaction (in NYSERDA’s sole discretion) that some or all of the Qualifying Federal Support will be utilized to increase the value to New York of the Project above and beyond that stated in Exhibit A-1, such as electrification/decarbonization of operations or increased facility capacity, the Parties shall amend Exhibit A-1 accordingly and in such amendment shall agree whether and by how much the amount of Grant Funding should be reduced to account for any portion of the QFS Amount not being applied to the increased scope approved by NYSERDA. NYSERDA shall provide notice to Grant Recipient of any adjustment required under this Section IV.D to the amount of Grant Proceeds owed under this Agreement, and any refunds due to NYSERDA as a result of such Adjustment. In the event NYSERDA determines that any Grant Proceeds must be refunded due to the receipt by Grant Recipient of Qualifying Federal Support, Grant Recipient shall deliver such Proceeds to NYSERDA within thirty (30) calendar days of notice of same.