Procedures Upon Failure Clause Samples

Procedures Upon Failure. (a) Owner shall cause the EPC Contractor to perform, and re-perform, the Performance Test until all of the Minimum Performance Criteria have been successfully achieved in connection with a Completed Performance Test. In confirmation and furtherance of the foregoing, Supplier covenants and agrees that its obligation to assure that the Power Island so achieves the Minimum Performance Criteria in connection with a Completed Performance Test is absolute (and that Supplier shall, at its sole cost and expense, implement all corrective and/or remedial measures until the Minimum Performance Criteria are in fact achieved in connection with a Completed Performance Test). Supplier shall do all things necessary to achieve the Minimum Performance Criteria notwithstanding that the amounts incurred by Supplier to do so may exceed the Contract Price. (b) If, after the performance of the initial Completed Performance Test, the Power Island fails to meet or exceed the Minimum Performance Criteria, Supplier shall, at Supplier’s sole cost and expense and within ninety (90) days thereafter correct and/or remedy the defects, deficiencies and other conditions which so prevent such performance levels. Upon completion of any such corrective and/or remedial actions, Supplier shall notify Owner. As soon as reasonably practicable after Owner’s receipt of such notice, Owner shall (or shall cause the EPC Contractor) to re-perform the Performance Test. The foregoing procedures shall be repeated until the Power Island achieves the Minimum Performance Criteria in connection with a Completed Performance Test. Owner shall supply the natural gas, water and utilities and operators necessary for conducting Performance Tests and retests, and consumables required for normal operation of the Facility. Supplier shall not be responsible for the costs of fuel or consumables required for normal operation of the Facility, nor the cost of normal operating personnel required to conduct any test or retest. Supplier shall pay for test personnel, test equipment and testing consumables for retests. (c) In the event Supplier fails to fulfill its obligations under this Agreement that are conditional to Substantial Completion, Supplier will not be entitled to pay Performance Liquidated Damages in lieu of achieving the Minimum Performance Criteria and must continue to diligently pursue achievement of Substantial Completion and achievement of the Minimum Performance Criteria.