Common use of Performance Guarantees Clause in Contracts

Performance Guarantees. Contractor guarantees that (i) the Facility will be capable of achieving all the applicable performance specifications referred to in this Section 8.1 during a Completed Performance Test at the earlier to occur of Provisional Acceptance or Interim Acceptance of the Facility, and (ii) the Facility will be capable of achieving all the applicable performance specifications referred to in this Section 8.1 during a Completed Performance Test at Final Acceptance of the Facility (the "Performance Guarantees"). For the avoidance of doubt and without in any way affecting the Contractor's other Performance Guarantees hereunder (including, without limitation, the achievement of the Gas-based Electrical Output Guarantee and the Gas-based Heat Rate Guarantee set forth in the Warranty Data Sheet attached as Appendix R hereto), the parties hereby acknowledge and agree that the Contractor does not guarantee that the Fuel Oil-based Electrical Output Guarantee and the Fuel Oil-based Heat Rate Guarantee set forth in the Warranty Data Sheet attached as Appendix R hereto will be achieved at the earlier to occur of Provisional Acceptance or Interim Acceptance of the Facility, but the Contractor does guarantee that such Fuel Oil-based Performance Guarantees will be achieved at Final Acceptance of the Facility. The respective guaranteed values referenced below are based upon the design operating conditions and other conditions set forth in Appendix D and R hereto. Contractor agrees to make all reasonable repair and replacement alternatives in order that the Facility will attain the Performance Guarantees. Contractor agrees that, if (i) the Facility fails to achieve the Gas-based Heat Rate Guarantee during the period, if any, commencing with the earlier to occur of Provisional Acceptance and Interim Acceptance of the Facility and continuing until Final Acceptance of the Facility, (ii) the Facility fails to achieve the Gas-based Electrical Output Guarantee during the period, if any, commencing with the earlier to occur of Provisional Acceptance and Interim Acceptance and continuing until Final Acceptance of the Facility, or (iii) the Facility fails to achieve any of the applicable Gas-based and Fuel Oil-based Performance Guarantees at Final Acceptance of the Facility, as the case may be, Contractor shall pay Owner as rebates and not as penalties the amounts calculated in accordance with the 92 terms set forth in Sections 8.1.1 and 8.1.2 hereof (the "Performance Guarantee Payments").

Performance Guarantees. Contractor guarantees The Department may, at its option, provide Vendor with a Performance Guarantee report template which must be used. For each Performance Guarantee that the Vendor fails to meet, the Vendor will remit appropriate payment to the Department within forty-five (i45) Calendar Days of the Facility will be capable end of achieving all the applicable performance specifications referred reporting quarter. The Department is not required to Notice or invoice the Vendor for payment. The Department may require the Vendor to propose and implement a reasonable corrective action plan to address and correct the root cause of any missed Performance Guarantee. The inclusion of the Performance Guarantees in this Section 8.1 during a Completed Performance Test at Contract is intended to address unsatisfactory performance in the earlier context of ongoing operations without resort to occur of Provisional Acceptance or Interim Acceptance of the Facility, and (ii) the Facility will be capable of achieving all the applicable performance specifications referred to in this Section 8.1 during a Completed Performance Test at Final Acceptance of the Facility (the "Performance Guarantees"). For the avoidance of doubt and without in any way affecting the Contractor's other Performance Guarantees hereunder (including, without limitation, the achievement of the Gas-based Electrical Output Guarantee and the Gas-based Heat Rate Guarantee default provisions set forth in Section 8: Events of Default and Remedies. However, if Vendor’s performance falls below the Warranty Data Sheet attached as Appendix R hereto)minimum level of performance for the same Performance Guarantee for three (3) quarters and such failure is not otherwise excused, then the parties hereby acknowledge and agree that the Contractor does not guarantee that the Fuel Oil-based Electrical Output Guarantee and the Fuel Oil-based Heat Rate Guarantee set forth in the Warranty Data Sheet attached as Appendix R hereto Department may declare an Event of Default. Vendor will be achieved at excused for failing to meet any Performance Guarantee to the earlier to occur extent such failure is caused by the Department not performing any of Provisional Acceptance its obligations under the Contract. Vendor will advise the Department in writing as soon as possible of any circumstance or Interim Acceptance of the Facility, but the Contractor does guarantee that such Fuel Oil-based Performance Guarantees will be achieved at Final Acceptance of the Facility. The respective guaranteed values referenced below are based upon the design operating conditions and other conditions set forth in Appendix D and R hereto. Contractor agrees to make all reasonable repair and replacement alternatives in order that the Facility will attain the Performance Guarantees. Contractor agrees that, if (i) the Facility fails to achieve the Gas-based Heat Rate Guarantee during the period, if any, commencing with the earlier to occur of Provisional Acceptance and Interim Acceptance of the Facility and continuing until Final Acceptance of the Facility, (ii) the Facility fails to achieve the Gas-based Electrical Output Guarantee during the period, if any, commencing with the earlier to occur of Provisional Acceptance and Interim Acceptance and continuing until Final Acceptance of the Facility, occurrence which could excuse or (iii) the Facility fails affect Vendor’s ability to achieve any of the applicable Gas-based Performance Guarantees. In all such cases, Vendor will cause to make all reasonable efforts to achieve the Performance Guarantees. THIS SPACE INTENTIONALLY LEFT BLANK Insurance Coverage‌‌‌ During the Contract term, Vendor will, at its sole expense, continuously maintain commercial insurance of such a type and Fuel Oil-based Performance Guarantees at Final Acceptance with such terms and limits as may be reasonably associated with this Contract and as required by law. Providing and maintaining adequate insurance coverage is a material obligation of Vendor and performance may not commence on this Contract until such time as insurance is secured by the FacilityVendor and is approved by the Department. The Department will not unreasonably withhold or delay such approval. The limits of coverage under each policy do not limit Vendor’s or Subcontractor’s liability and obligations under the Contract. Unless otherwise agreed in writing by the Department, as all insurance policies must be through insurers authorized or eligible to write policies in Florida. The Vendor shall notify the case may be, Contractor shall pay Owner as rebates and not as penalties Department immediately if the amounts calculated in accordance with the 92 terms set forth in Sections 8.1.1 and 8.1.2 hereof (the "Performance Guarantee Payments")Vendor loses any liability insurance coverage.

Performance Guarantees. Contractor guarantees that (iExcept as provided below and subject to Section 14(a) the Facility will be capable of achieving all the applicable performance specifications referred to in this Section 8.1 during a Completed Performance Test at the earlier to occur of Provisional Acceptance or Interim Acceptance of the FacilityAgreement, and (ii) the Facility will be capable of achieving all the applicable performance specifications referred to in this Section 8.1 during a Completed Performance Test at Final Acceptance of the Facility (the "Performance Guarantees"). For the avoidance of doubt and without in any way affecting the Contractor's other Performance Guarantees hereunder (including, without limitation, the achievement of the Gas-based Electrical Output Guarantee and the Gas-based Heat Rate Guarantee set forth in the Warranty Data Sheet attached as Appendix R hereto), the parties hereby acknowledge and agree that the Contractor does not AutoZone shall guarantee that each Exhaust Program order placed by a Midas Shop before the Fuel OilExhaust Order Cut-based Electrical Output Guarantee and the Fuel Oil-based Heat Rate Guarantee set forth in the Warranty Data Sheet attached as Appendix R hereto will be achieved at the earlier to occur of Provisional Acceptance or Interim Acceptance of the Facility, but the Contractor does guarantee that such Fuel Oil-based Performance Guarantees will be achieved at Final Acceptance of the Facility. The respective guaranteed values referenced below are based upon the design operating conditions and other conditions set forth in Appendix D and R hereto. Contractor agrees to make all reasonable repair and replacement alternatives in order that the Facility will attain the Performance Guarantees. Contractor agrees that, if (i) the Facility fails to achieve the Gas-based Heat Rate Guarantee during the period, if any, commencing with the earlier to occur of Provisional Acceptance and Interim Acceptance of the Facility and continuing until Final Acceptance of the Facility, (ii) the Facility fails to achieve the Gas-based Electrical Output Guarantee during the period, if any, commencing with the earlier to occur of Provisional Acceptance and Interim Acceptance and continuing until Final Acceptance of the Facility, or (iii) the Facility fails to achieve any of the applicable Gas-based and Fuel Oil-based Performance Guarantees at Final Acceptance of the Facility, as the case may be, Contractor shall pay Owner as rebates and not as penalties the amounts calculated Off Time is delivered by 5:00 p.m. local time in accordance with the 92 terms timetable set forth in Sections 8.1.1 Schedule 5.1 hereto or in Subsection 2(c)(iii) above, as applicable. In the event that an Exhaust Program order placed by a Midas Shop is either not delivered or delivered after the applicable guaranteed delivery time referenced above, the Midas Shop will be paid by AutoZone [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION] of the dollar amount of the Exhaust Program order in question. The foregoing shall be the sole remedy of any Midas Shop for the failure of AutoZone to deliver an Exhaust Program order to such Midas Shop within the above-referenced guaranteed delivery time. In addition, notwithstanding the foregoing, the parties agree that AutoZone shall not be required to pay the foregoing penalties under the Exhaust Program to a particular Midas Shop until such time as the Exhaust Program has been implemented in such Midas Shop. Any Exhaust Program order shipped by AutoZone with a fill rate of less than [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION] will be subject to the foregoing penalty, regardless of the time of delivery. Any penalty imposed upon AutoZone pursuant to this Section 2(c)(ix) shall be paid at the end of the applicable calendar quarter by AutoZone to Midas or the applicable Midas franchisee in the form of a credit against future purchases under the Exhaust Program or in cash if so requested by Midas or the applicable Midas franchisee. Notwithstanding the foregoing, the performance guarantees and 8.1.2 hereof penalties stated above shall not include (AA) any order by any Midas Shop that exceeds such Midas Shop’s average Exhaust Program order over the "Performance Guarantee Payments")trailing two calendar quarters by more than 100% in dollar value, or (BB) any order for Stocking Exhaust Products necessary for the fulfillment of any promotion or event (other than local promotions and events) promoted by Midas or any of its franchisees for which AutoZone does not have adequate in-stock quantities of such Stocking Exhaust Products, but only to the extent that Midas has not provided AutoZone with at least ninety (90) calendar days’ prior written notice of such promotion or event and to the extent that the forecast of demand created by the promotion or event (as determined in the manner provided below) is not exceeded by 10%. Midas shall provide to AutoZone the prior twelve (12) months’ promotion event calendar relating to Stocking Exhaust Products and the demand driven by such events. Midas and AutoZone shall mutually agree on a forecast for each promotion or event.