Common use of Project Performance Tests Clause in Contracts

Project Performance Tests. (a) Seller and Buyer agree that this Article IX shall govern the performance of all Project Performance Tests under this Agreement and that all Project Performance Tests shall be performed in accordance with the requirements of this Agreement, including the Scope Book and the remainder of the Performance Standard. (b) Without limiting the foregoing or the terms of the Scope Book, Seller shall be responsible for the performance of each Project Performance Test. Seller shall bear and be responsible for the timely payment of the costs to perform each Project Performance Test and prepare the Project Performance Test Report setting forth the Project Performance Test Results of each such Project Performance Test, including all costs of the Project Performance Test Contractor. The allocation of the proceeds received from MISO, and responsibility for the costs and charges assessed by XXXX, resulting from or arising out each Project Performance Test, shall be as set forth in the MISO Agreement. (i) For each Project Performance Test, Seller shall retain and require the Project Test Performance Contractor to conduct the Project Performance Test in accordance with the requirements of this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests. For the initial Project Performance Test, Seller shall (A) notify Buyer at least fifteen (15) days, but no more than seventy (70) days, prior to commencing such Project Performance Test, (B) confirm in writing to Buyer the dates and times of such Project Performance Test no later than five (5) Business Days prior to commencing such Project Performance Test, and (C) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book. For any subsequent Project Performance Test (including following cancellation of a Project Performance Test), Seller shall (1) notify Buyer at least five (5) Business Days prior to commencing such Project Performance Test, and (2) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book (including Appendix 5 thereof). If Buyer objects to Seller’s proposed dates and times for any Project Performance Test, Buyer shall propose in good faith at least three (3) new dates and times for such Project Performance Test that are as close to Seller’s initial proposed dates and times as is reasonably acceptable to Buyer and Buyer and Seller shall promptly select the dates and times of such Project Performance Test from among the alternative dates and times proposed by Buyer and promptly notify Buyer of such selection. (ii) Without limiting the Scope Book or any other term of this Agreement, Seller shall keep Buyer reasonably apprised of, and promptly notify Buyer of any change in the status of, each Project Performance Test, timely provide to Buyer such other material and information regarding each Project Performance Test as Buyer may reasonably request, and afford Buyer and its Representatives, including independent engineers and testing experts, a reasonable opportunity to witness each Project Performance Test. Notwithstanding anything to the contrary, a Project Performance Test, once begun, may not be interrupted or suspended and then resumed without Buyer’s prior written approval. Nothing in the Scope Book or this Agreement shall prevent Seller or the Project Performance Test Contractor from interrupting, suspending, cancelling, or terminating a Project Performance Test and scheduling and conducting, in accordance with the requirements of this Agreement and the Scope Book, a separate subsequent Project Performance Test. For the avoidance of doubt, nothing in this clause (ii) is intended to or shall operate to extend the Guaranteed Substantial Completion Date or the Substantial Completion Termination Trigger Date. (d) Buyer shall make the Project available for each Project Performance Test on the agreed dates and times of each Project Performance Test. Seller shall be responsible for providing all test instrumentation (including the instrumentation described in the Scope Book), equipment, systems, tools, calibrations, material, labor (including operators and testing specialists), utilities, and services necessary to conduct each Project Performance Test in accordance with the terms of this Agreement and for staffing and operating the Project as needed for each Project Performance Test. Without limiting Seller’s obligations with respect to any Project Performance Test or otherwise under this Agreement, Seller shall timely provide to Buyer such information regarding the staffing and operation of and data collection from the Project in preparation for, during, and following each Project Performance Test and the actual performance of the Project Performance Test as Buyer may reasonably request. Using Project Performance Test information provided to Buyer by Seller or available to Buyer from Project or MISO equipment, systems, and data, Buyer, as the Market Participant (as defined in the MISO Agreement) for the Project under the MISO Agreement, shall coordinate the scheduling, offering, and dispatch of energy and Other Electric Products and otherwise interface with MISO with respect to each Project Performance Test. Nothing in this Section 9.1(d) is intended to modify of affect the provisions of the MISO Agreement. (e) For each Project Performance Test, Seller shall cause the Project Performance Test Contractor to (i) prepare and complete the final written report of the Project Performance Test Contractor (the “Project Performance Test Report”) that documents, presents, analyzes, and explains the performance and final results of such Project Performance Test and related data and inputs in a logical, organized, and professional manner (the “Project Performance Test Results”) and certifies the accuracy and completeness of the Project Performance Test Report, including the Project Performance Test Results, within thirty (30) days after the conclusion of such Project Performance Test and (ii) deliver such Project Performance Test Report contemporaneously to Seller and Buyer. Each Project Performance Test Report shall meet the requirements set forth in this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests, and shall be subject to the approval of Buyer, which shall not be unreasonably withheld, delayed, or conditioned. Seller shall provide to Buyer (A) promptly after receipt, any draft written Project Performance Test Report prepared by the Project Performance Test Contractor and delivered to Seller and a reasonable opportunity (which shall be not less than fourteen (14) days for the initial draft) to review and comment thereon and (B) a reasonable opportunity to participate in any material communication between Seller and the Project Performance Test Contractor related to any Project Performance Test, including during a Project Performance Test. Seller shall consider, and shall ensure that Project Performance Test Contractor shall consider, in good faith any comment on any draft report provided by Buyer under this Section 9.1(e).

Project Performance Tests. (a) Seller and Buyer agree that this Article IX shall govern the performance of all Project Performance Tests under this Agreement and that all Project Performance Tests shall be performed in accordance with the requirements of this Agreement, including the Scope Book and the remainder of the Performance Standard. (b) Without limiting the foregoing or the terms of the Scope Book, Seller shall be responsible for the performance of each Project Performance Test. Seller shall bear and be responsible for the timely payment of the costs to perform each Project Performance Test and prepare the Project Performance Test Report setting forth the Project Performance Test Results of each such Project Performance Test, including all costs of the Project Performance Test Contractor. The allocation of the proceeds received from MISO, and responsibility for the costs and charges assessed by XXXXMISO, resulting from or arising out each Project Performance Test, shall be as set forth in the MISO Agreement. (i) For each Project Performance Test, Seller shall retain and require the Project Test Performance Contractor to conduct the Project Performance Test in accordance with the requirements of this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests. For the initial Project Performance Test, Seller shall (A) notify Buyer at least fifteen (15) days, but no more than seventy (70) days, prior to commencing such Project Performance Test, (B) confirm in writing to Buyer the dates and times of such Project Performance Test no later than five (5) Business Days prior to commencing such Project Performance Test, and (C) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book. For any subsequent Project Performance Test (including following a cancellation of a Project Performance Test), Seller shall (1) notify Buyer at least five (5) Business Days prior to commencing such Project Performance Test, and (2) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book (including Appendix 5 thereof)Book. If Buyer objects to Seller’s proposed dates and times for any Project Performance Test, Buyer shall propose in good faith at least three (3) new dates and times for such Project Performance Test that are as close to Seller’s initial proposed dates and times as is reasonably acceptable to Buyer and Buyer and Seller shall promptly select the dates and times of such Project Performance Test from among the alternative dates and times proposed by Buyer and promptly notify Buyer of such selection. (ii) Without limiting the Scope Book or any other term of this Agreement, Seller shall keep Buyer reasonably apprised of, and promptly notify Buyer of any change in the status of, each Project Performance Test, timely provide to Buyer such other material and information regarding each Project Performance Test as Buyer may reasonably request, and afford Buyer and its Representatives, including independent engineers and testing experts, a reasonable opportunity to witness each Project Performance Test. Notwithstanding anything to the contrary, a A Project Performance Test, once begun, may not be interrupted or suspended and then resumed without Buyer’s prior written approval. Nothing in the Scope Book or this Agreement shall prevent Seller or the Project Performance Test Contractor from interrupting, suspending, cancelling, or terminating a Project Performance Test and scheduling and conducting, in accordance with the requirements of this Agreement and the Scope Book, a separate subsequent Project Performance Test. For the avoidance of doubt, nothing in this clause (ii) is intended to or shall operate to extend the Guaranteed Substantial Completion Date or the Substantial Completion Termination Trigger Date. (d) Buyer shall make the Project available for each Project Performance Test on the agreed dates and times of each Project Performance Test. Seller shall be responsible for providing all test instrumentation (including the instrumentation described in the Scope Book), equipment, systems, tools, calibrations, material, labor (including operators and testing specialists), utilities, and services necessary to conduct each Project Performance Test in accordance with the terms of this Agreement and for staffing and operating the Project as needed for each Project Performance Test. Without limiting Seller’s obligations with respect to any Project Performance Test or otherwise under this Agreement, Seller shall timely provide to Buyer such information regarding the staffing and operation of and data collection from the Project in preparation for, during, and following each Project Performance Test and the actual performance of the Project Performance Test as Buyer may reasonably request. Using Project Performance Test information provided to Buyer by Seller or available to Buyer from Project or MISO equipment, systems, and data, Buyer, as the Market Participant (as defined in the MISO Agreement) for the Project under the MISO Agreement, shall coordinate the scheduling, offering, and dispatch of energy and Other Electric Products and otherwise interface with MISO with respect to each Project Performance Test. Nothing in this Section 9.1(d) is intended to modify of affect the provisions of the MISO Agreement. (e) For each Project Performance Test, Seller shall cause the Project Performance Test Contractor to (i) prepare and complete the final written report of the Project Performance Test Contractor (the “Project Performance Test Report”) that documents, presents, analyzes, and explains the performance and final results of such Project Performance Test and related data and inputs in a logical, organized, and professional manner (the “Project Performance Test Results”) and certifies the accuracy and completeness of the Project Performance Test Report, including the Project Performance Test Results, within thirty (30) days after the conclusion of such Project Performance Test and (ii) deliver such Project Performance Test Report contemporaneously to Seller and Buyer. Each Project Performance Test Report shall meet the requirements set forth in this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests, and shall be subject to the approval of Buyer, which shall not be unreasonably withheld, delayed, or conditioned. Seller shall provide to Buyer (A) promptly after receipt, any draft written Project Performance Test Report prepared by the Project Performance Test Contractor and delivered to Seller and a reasonable opportunity (which shall be not less than fourteen (14) days for the initial draft) to review and comment thereon and (B) a reasonable opportunity to participate in any material communication between Seller and the Project Performance Test Contractor related to any Project Performance Test, including during a Project Performance Test. Seller shall consider, and shall ensure that Project Performance Test Contractor shall consider, in good faith any comment on any draft report provided by Buyer under this Section 9.1(e).

Project Performance Tests. (a) Seller and Buyer agree that this Article IX shall govern the performance of all Project Performance Tests under this Agreement and that all Project Performance Tests shall be performed in accordance with the requirements of this Agreement, including the Scope Book and the remainder of the Performance Standard. (b) Without limiting the foregoing or the terms of the Scope Book, Seller shall be responsible for the performance of each Project Performance Test. Seller shall bear and be responsible for the timely payment of the costs to perform each Project Performance Test and prepare the Project Performance Test Report setting forth the Project Performance Test Results of each such Project Performance Test, including all costs of the Project Performance Test Contractor. The allocation of the proceeds received from MISO, and responsibility for the costs and charges assessed by XXXX, resulting from or arising out each Project Performance Test, shall be as set forth in the MISO Agreement. (i) For each Project Performance Test, Seller shall retain and require the Project Test Performance Contractor to conduct the Project Performance Test in accordance with the requirements of this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests. For the initial Project Performance Test, Seller shall (A) notify Buyer at least fifteen (15) days, but no more than seventy (70) days, prior to commencing such Project Performance Test, (B) confirm in writing to Buyer the dates and times of such Project Performance Test no later than five (5) Business Days prior to commencing such Project Performance Test, and (C) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book. For any subsequent Project Performance Test (including following cancellation of a Project Performance Test), Seller shall (1) notify Buyer at least five (5) Business Days prior to commencing such Project Performance Test, and (2) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book (including Appendix 5 thereof). If Buyer objects to Seller’s proposed dates and times for any Project Performance Test, Buyer shall propose in good faith at least three (3) new dates and times for such Project Performance Test that are as close to Seller’s initial proposed dates and times as is reasonably acceptable to Buyer and Buyer and Seller shall promptly select the dates and times of such Project Performance Test from among the alternative dates and times proposed by Buyer Xxxxx and promptly notify Buyer of such selection. (ii) Without limiting the Scope Book or any other term of this Agreement, Seller shall keep Buyer reasonably apprised of, and promptly notify Buyer of any change in the status of, each Project Performance Test, timely provide to Buyer such other material and information regarding each Project Performance Test as Buyer may reasonably request, and afford Buyer and its Representatives, including independent engineers and testing experts, a reasonable opportunity to witness each Project Performance Test. Notwithstanding anything to the contrary, a Project Performance Test, once begun, may not be interrupted or suspended and then resumed without Buyer’s prior written approval. Nothing in the Scope Book or this Agreement shall prevent Seller or the Project Performance Test Contractor from interrupting, suspending, cancelling, or terminating a Project Performance Test and scheduling and conducting, in accordance with the requirements of this Agreement and the Scope Book, a separate subsequent Project Performance Test. For the avoidance of doubt, nothing in this clause (ii) is intended to or shall operate to extend the Guaranteed Substantial Completion Date or the Substantial Completion Termination Trigger Date. (d) Buyer shall make the Project available for each Project Performance Test on the agreed dates and times of each Project Performance Test. Seller shall be responsible for providing all test instrumentation (including the instrumentation described in the Scope Book), equipment, systems, tools, calibrations, material, labor (including operators and testing specialists), utilities, and services necessary to conduct each Project Performance Test in accordance with the terms of this Agreement and for staffing and operating the Project as needed for each Project Performance Test. Without limiting Seller’s obligations with respect to any Project Performance Test or otherwise under this Agreement, Seller shall timely provide to Buyer such information regarding the staffing and operation of and data collection from the Project in preparation for, during, and following each Project Performance Test and the actual performance of the Project Performance Test as Buyer may reasonably request. Using Project Performance Test information provided to Buyer by Seller or available to Buyer from Project or MISO equipment, systems, and data, Buyer, as the Market Participant (as defined in the MISO Agreement) for the Project under the MISO Agreement, shall coordinate the scheduling, offering, and dispatch of energy and Other Electric Products and otherwise interface with MISO with respect to each Project Performance Test. Nothing in this Section 9.1(d) is intended to modify of affect the provisions of the MISO Agreement. (e) For each Project Performance Test, Seller shall cause the Project Performance Test Contractor to (i) prepare and complete the final written report of the Project Performance Test Contractor (the “Project Performance Test Report”) that documents, presents, analyzes, and explains the performance and final results of such Project Performance Test and related data and inputs in a logical, organized, and professional manner (the “Project Performance Test Results”) and certifies the accuracy and completeness of the Project Performance Test Report, including the Project Performance Test Results, within thirty (30) days after the conclusion of such Project Performance Test and (ii) deliver such Project Performance Test Report contemporaneously to Seller and Buyer. Each Project Performance Test Report shall meet the requirements set forth in this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests, and shall be subject to the approval of Buyer, which shall not be unreasonably withheld, delayed, or conditioned. Seller shall provide to Buyer (A) promptly after receipt, any draft written Project Performance Test Report prepared by the Project Performance Test Contractor and delivered to Seller and a reasonable opportunity (which shall be not less than fourteen (14) days for the initial draft) to review and comment thereon and (B) a reasonable opportunity to participate in any material communication between Seller and the Project Performance Test Contractor related to any Project Performance Test, including during a Project Performance Test. Seller shall consider, and shall ensure that Project Performance Test Contractor shall consider, in good faith any comment on any draft report provided by Buyer under this Section 9.1(e).

Project Performance Tests. (a) Seller and Buyer agree that this Article IX 9 shall govern the performance of all Project Performance Tests under this Agreement and that all Project Performance Tests shall be performed in accordance with the requirements of this Agreement, including the Scope Book and the remainder of the Performance Standard. (b) Without limiting the foregoing or the terms of the Scope Book, Seller shall be responsible for the performance of each Project Performance Test. Seller shall bear and be responsible for the timely payment of the costs to perform each Project Performance Test and prepare the Project Performance Test Report setting forth the Project Performance Test Results of each such Project Performance Test, including all costs of the Project Performance Test Contractor. The allocation of the proceeds received from MISO, and responsibility for the costs and charges assessed by XXXX, resulting from or arising out each Project Performance Test, shall be as set forth in the MISO Agreement. (i) For each Project Performance Test, Seller shall retain and require the Project Test Performance Contractor to conduct the Project Performance Test in accordance with the requirements of this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests. For the initial Project Performance Test, Seller shall (A) notify Buyer at least fifteen (15) days, but no more than seventy (70) days, prior to commencing such Project Performance Test, (B) confirm in writing to Buyer the dates and times of such Project Performance Test no later than five (5) Business Days prior to commencing such Project Performance Test, and (C) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX 9 and the Scope Book. For any subsequent Project Performance Test (including following cancellation of a Project Performance Test), Seller shall (1) notify Buyer at least five (5) Business Days prior to commencing such Project Performance Test, and (2) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX 9 and the Scope Book (including Appendix 5 thereof). If Buyer objects to Seller’s proposed dates and times for any Project Performance Test, Buyer shall propose in good faith at least three (3) new dates and times for such Project Performance Test that are as close to Seller’s initial proposed dates and times as is reasonably acceptable to Buyer and Buyer and Seller shall promptly select the dates and times of such Project Performance Test from among the alternative dates and times proposed by Buyer Xxxxx and promptly notify Buyer of such selection. (ii) Without limiting the Scope Book or any other term of this Agreement, Seller shall keep Buyer reasonably apprised of, and promptly notify Buyer of any change in the status of, each Project Performance Test, timely provide to Buyer such other material and information regarding each Project Performance Test as Buyer may reasonably request, and afford Buyer and its Representatives, including independent engineers and testing experts, a reasonable opportunity to witness each Project Performance Test. Notwithstanding anything to the contrary, a Project Performance Test, once begun, may not be interrupted or suspended and then resumed without Buyer’s prior written approval. Nothing in the Scope Book or this Agreement shall prevent Seller or the Project Performance Test Contractor from interrupting, suspending, cancelling, or terminating a Project Performance Test and scheduling and conducting, in accordance with the requirements of this Agreement and the Scope Book, a separate subsequent Project Performance Test. For the avoidance of doubt, nothing in this clause (ii) is intended to or shall operate to extend the Guaranteed Substantial Completion Date or the Substantial Completion Termination Trigger Date. (d) Buyer shall make the Project available for each Project Performance Test on the agreed dates and times of each Project Performance Test. Seller shall be responsible for providing all test instrumentation (including the instrumentation described in the Scope Book), equipment, systems, tools, calibrations, material, labor (including operators and testing specialists), utilities, and services necessary to conduct each Project Performance Test in accordance with the terms of this Agreement and for staffing and operating the Project as needed for each Project Performance Test. Without limiting Seller’s obligations with respect to any Project Performance Test or otherwise under this Agreement, Seller shall timely provide to Buyer such information regarding the staffing and operation of and data collection from the Project in preparation for, during, and following each Project Performance Test and the actual performance of the Project Performance Test as Buyer may reasonably request. Using Project Performance Test information provided to Buyer by Seller or available to Buyer from Project or MISO equipment, systems, and data, Buyer, as the Market Participant (as defined in the MISO Agreement) for the Project under the MISO Agreement, shall coordinate the scheduling, offering, and dispatch of energy and Other Electric Products and otherwise interface with MISO with respect to each Project Performance Test. Nothing in this Section 9.1(d) is intended to modify of affect the provisions of the MISO Agreement. (e) For each Project Performance Test, Seller shall cause the Project Performance Test Contractor to (i) prepare and complete the final written report of the Project Performance Test Contractor (the “Project Performance Test Report”) that documents, presents, analyzes, and explains the performance and final results of such Project Performance Test and related data and inputs in a logical, organized, and professional manner (the “Project Performance Test Results”) and certifies the accuracy and completeness of the Project Performance Test Report, including the Project Performance Test Results, within thirty (30) days after the conclusion of such Project Performance Test and (ii) deliver such Project Performance Test Report contemporaneously to Seller and Buyer. Each Project Performance Test Report shall meet the requirements set forth in this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests, and shall be subject to the approval of Buyer, which shall not be unreasonably withheld, delayed, or conditioned. Seller shall provide to Buyer (A) promptly after receipt, any draft written Project Performance Test Report prepared by the Project Performance Test Contractor and delivered to Seller and a reasonable opportunity (which shall be not less than fourteen (14) days for the initial draft) to review and comment thereon and (B) a reasonable opportunity to participate in any material communication between Seller and the Project Performance Test Contractor related to any Project Performance Test, including during a Project Performance Test. Seller shall consider, and shall ensure that Project Performance Test Contractor shall consider, in good faith any comment on any draft report provided by Buyer under this Section 9.1(e).

Project Performance Tests. (a) Seller and Buyer agree that this Article IX shall govern the performance of all Project Performance Tests under this Agreement and that all Project Performance Tests shall be performed in accordance with the requirements of this Agreement, including the Scope Book and the remainder of the Performance Standard. (b) Without limiting the foregoing or the terms of the Scope Book, Seller shall be responsible for the performance of each Project Performance Test. Seller shall bear and be responsible for the timely payment of the costs to perform each Project Performance Test and prepare the Project Performance Test Report setting forth the Project Performance Test Results of each such Project Performance Test, including all costs of the Project Performance Test Contractor. The allocation of the proceeds received from MISO, and responsibility for the costs and charges assessed by XXXXMISO, resulting from or arising out each Project Performance Test, shall be as set forth in the MISO Agreement. (c) (i) For each Project Performance Test, Seller shall retain and require the Project Test Performance Contractor to conduct the Project Performance Test in accordance with the requirements of this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests. For the initial Project Performance Test, Seller shall shall (A) notify Buyer at least fifteen (15) days, but no more than seventy (70) days, prior to commencing such Project Performance Test, (B) confirm in writing to Buyer the dates and times of such Project Performance Test no later than five (5) Business Days prior to commencing such Project Performance Test, and (C) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book. For any subsequent Project Performance Test (including following a cancellation of a Project Performance Test), Seller shall (1) notify Buyer at least five (5) Business Days prior to commencing such Project Performance Test, and (2) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book (including Appendix 5 thereof)Book. If Buyer objects to Seller’s proposed dates and times for any Project Performance Test, Buyer shall propose in good faith at least three (3) new dates and times for such Project Performance Test that are as close to Seller’s initial proposed dates and times as is reasonably acceptable to Buyer and Buyer and Seller shall promptly select the dates and times of such Project Performance Test from among the alternative dates and times proposed by Buyer and promptly notify Buyer of such selection. (ii) Without limiting the Scope Book or any other term of this Agreement, Seller shall keep Buyer reasonably apprised of, and promptly notify Buyer of any change in the status of, each Project Performance Test, timely provide to Buyer such other material and information regarding each Project Performance Test as Buyer may reasonably request, and afford Buyer and its Representatives, including independent engineers and testing experts, a reasonable opportunity to witness each Project Performance Test. Notwithstanding anything to the contrary, a Project Performance Test, once begun, may not be interrupted or suspended and then resumed without Buyer’s prior written approval. Nothing in the Scope Book or this Agreement shall prevent Seller or the Project Performance Test Contractor from interrupting, suspending, cancelling, or terminating a Project Performance Test and scheduling and conducting, in accordance with the requirements of this Agreement and the Scope Book, a separate subsequent Project Performance Test. For the avoidance of doubt, nothing in this clause (ii) is intended to or shall operate to extend the Guaranteed Substantial Completion Date or the Substantial Completion Termination Trigger Date. (d) Buyer shall make the Project available for each Project Performance Test on the agreed dates and times of each Project Performance Test. Seller shall be responsible for providing all test instrumentation (including the instrumentation described in the Scope Book), equipment, systems, tools, calibrations, material, labor (including operators and testing specialists), utilities, and services necessary to conduct each Project Performance Test in accordance with the terms of this Agreement and for staffing and operating the Project as needed for each Project Performance Test. Without limiting Seller’s obligations with respect to any Project Performance Test or otherwise under this Agreement, Seller shall timely provide to Buyer such information regarding the staffing and operation of and data collection from the Project in preparation for, during, and following each Project Performance Test and the actual performance of the Project Performance Test as Buyer may reasonably request. Using Project Performance Test information provided to Buyer by Seller or available to Buyer from Project or MISO equipment, systems, and data, Buyer, as the Market Participant (as defined in the MISO Agreement) for the Project under the MISO Agreement, shall coordinate the scheduling, offering, and dispatch of energy and Other Electric Products and otherwise interface with MISO with respect to each Project Performance Test. Nothing in this Section 9.1(d) is intended to modify of affect the provisions of the MISO Agreement. (e) For each Project Performance Test, Seller shall cause the Project Performance Test Contractor to (i) prepare and complete the final written report of the Project Performance Test Contractor (the “Project Performance Test Report”) that documents, presents, analyzes, and explains the performance and final results of such Project Performance Test and related data and inputs in a logical, organized, and professional manner (the “Project Performance Test Results”) and certifies the accuracy and completeness of the Project Performance Test Report, including the Project Performance Test Results, within thirty (30) days after the conclusion of such Project Performance Test and (ii) deliver such Project Performance Test Report contemporaneously to Seller and Buyer. Each Project Performance Test Report shall meet the requirements set forth in this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests, and shall be subject to the approval of Buyer, which shall not be unreasonably withheld, delayed, or conditioned. Seller shall provide to Buyer (A) promptly after receipt, any draft written Project Performance Test Report prepared by the Project Performance Test Contractor and delivered to Seller and a reasonable opportunity (which shall be not less than fourteen (14) days for the initial draft) to review and comment thereon and (B) a reasonable opportunity to participate in any material communication between Seller and the Project Performance Test Contractor related to any Project Performance Test, including during a Project Performance Test. Seller shall consider, and shall ensure that Project Performance Test Contractor shall consider, in good faith any comment on any draft report provided by Buyer under this Section 9.1(e).

Project Performance Tests. (a) Seller and Buyer agree that this Article IX shall govern the performance of all Project Performance Tests under this Agreement and that all Project Performance Tests shall be performed in accordance with the requirements of this Agreement, including the Scope Book and the remainder of the Performance Standard. (b) Without limiting the foregoing or the terms of the Scope Book, Seller shall be responsible for the performance of each Project Performance Test. Seller shall bear and be responsible for the timely payment of the costs to perform each Project Performance Test and prepare the Project Performance Test Report setting forth the Project Performance Test Results of each such Project Performance Test, including all costs of the Project Performance Test Contractor. The allocation of the proceeds received from MISO, and responsibility for the costs and charges assessed by XXXXMISO, resulting from or arising out each Project Performance Test, shall be as set forth in the MISO Agreement. (i) For each Project Performance Test, Seller shall retain and require the Project Test Performance Contractor to conduct the Project Performance Test in accordance with the requirements of this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests. For the initial Project Performance Test, Seller shall (A) notify Buyer at least fifteen (15) days, but no more than seventy (70) days, prior to commencing such Project Performance Test, (B) confirm in writing to Buyer the dates and times of such Project Performance Test no later than five (5) Business Days prior to commencing such Project Performance Test, and (C) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book. For any subsequent Project Performance Test (including following a cancellation of a Project Performance Test), Seller shall (1) notify Buyer at least five (5) Business Days prior to commencing such Project Performance Test, and (2) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book (including Appendix 5 thereof). If Buyer objects to Seller’s proposed dates and times for any Project Performance Test, Buyer shall propose in good faith at least three (3) new dates and times for such Project Performance Test that are as close to Seller’s initial proposed dates and times as is reasonably acceptable to Buyer and Buyer and Seller shall promptly select the dates and times of such Project Performance Test from among the alternative dates and times proposed by Buyer and promptly notify Buyer of such selection. (ii) Without limiting the Scope Book or any other term of this Agreement, Seller shall keep Buyer reasonably apprised of, and promptly notify Buyer of any change in the status of, each Project Performance Test, timely provide to Buyer such other material and information regarding each Project Performance Test as Buyer may reasonably request, and afford Buyer and its Representatives, including independent engineers and testing experts, a reasonable opportunity to witness each Project Performance Test. Notwithstanding anything to the contrary, a A Project Performance Test, once begun, may not be interrupted or suspended and then resumed without Buyer’s prior written approval. Nothing in the Scope Book or this Agreement shall prevent Seller or the Project Performance Test Contractor from interrupting, suspending, cancelling, or terminating a Project Performance Test and scheduling and conducting, in accordance with the requirements of this Agreement and the Scope Book, a separate subsequent Project Performance Test. For the avoidance of doubt, nothing in this clause (ii) is intended to or shall operate to extend the Guaranteed Substantial Completion Date or the Substantial Completion Termination Trigger Date. (d) Buyer shall make the Project available for each Project Performance Test on the agreed dates and times of each Project Performance Test. Seller shall be responsible for providing all test instrumentation (including the instrumentation described in the Scope Book), equipment, systems, tools, calibrations, material, labor (including operators and testing specialists), utilities, and services necessary to conduct each Project Performance Test in accordance with the terms of this Agreement and for staffing and operating the Project as needed for each Project Performance Test. Without limiting Seller’s obligations with respect to any Project Performance Test or otherwise under this Agreement, Seller shall timely provide to Buyer such information regarding the staffing and operation of and data collection from the Project in preparation for, during, and following each Project Performance Test and the actual performance of the Project Performance Test as Buyer may reasonably request. Using Project Performance Test information provided to Buyer by Seller or available to Buyer from Project or MISO equipment, systems, and data, Buyer, as the Market Participant (as defined in the MISO Agreement) for the Project under the MISO Agreement, shall coordinate the scheduling, offering, and dispatch of energy and Other Electric Products and otherwise interface with MISO with respect to each Project Performance Test. Nothing in this Section 9.1(d) is intended to modify of affect the provisions of the MISO Agreement. (e) For each Project Performance Test, Seller shall cause the Project Performance Test Contractor to (i) prepare and complete the final written report of the Project Performance Test Contractor (the “Project Performance Test Report”) that documents, presents, analyzes, and explains the performance and final results of such Project Performance Test and related data and inputs in a logical, organized, and professional manner (the “Project Performance Test Results”) and certifies the accuracy and completeness of the Project Performance Test Report, including the Project Performance Test Results, within thirty (30) days after the conclusion of such Project Performance Test and (ii) deliver such Project Performance Test Report contemporaneously to Seller and Buyer. Each Project Performance Test Report shall meet the requirements set forth in this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests, and shall be subject to the approval of Buyer, which shall not be unreasonably withheld, delayed, or conditioned. Seller shall provide to Buyer (A) promptly after receipt, any draft written Project Performance Test Report prepared by the Project Performance Test Contractor and delivered to Seller and a reasonable opportunity (which shall be not less than fourteen (14) days for the initial draft) to review and comment thereon and (B) a reasonable opportunity to participate in any material communication between Seller and the Project Performance Test Contractor related to any Project Performance Test, including during a Project Performance Test. Seller shall consider, and shall ensure that Project Performance Test Contractor shall consider, in good faith any comment on any draft report provided by Buyer under this Section 9.1(e).

Project Performance Tests. ‌ (a) Seller and Buyer agree that this Article IX shall govern the performance of all Project Performance Tests under this Agreement and that all Project Performance Tests shall be performed in accordance with the requirements of this Agreement, including the Scope Book and the remainder of the Performance Standard.Standard.‌ (b) Without limiting the foregoing or the terms of the Scope Book, Seller shall be responsible for the performance of each Project Performance Test. Seller shall bear and be responsible for the timely payment of the costs to perform each Project Performance Test and prepare the Project Performance Test Report setting forth the Project Performance Test Results of each such Project Performance Test, including all costs of the Project Performance Test Contractor. The allocation of the proceeds received from MISO, and responsibility for the costs and charges assessed by XXXX, resulting from or arising out each Project Performance Test, shall be as set forth in the MISO Agreement. (i) For each Project Performance Test, Seller shall retain and require the Project Test Performance Contractor to conduct the Project Performance Test in accordance with the requirements of this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests. For the initial Project Performance Test, Seller shall (A) notify Buyer at least fifteen (15) days, but no more than seventy (70) days, prior to commencing such Project Performance Test, (B) confirm in writing to Buyer the dates and times of such Project Performance Test no later than five (5) Business Days prior to commencing such Project Performance Test, and (C) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book. For any subsequent Project Performance Test (including following cancellation of a Project Performance Test), Seller shall (1) notify Buyer at least five (5) Business Days prior to commencing such Project Performance Test, and (2) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book (including Appendix 5 thereof). If Buyer objects to Seller’s proposed dates and times for any Project Performance Test, Buyer shall propose in good faith at least three (3) new dates and times for such Project Performance Test that are as close to Seller’s initial proposed dates and times as is reasonably acceptable to Buyer and Buyer and Seller shall promptly select the dates and times of such Project Performance Test from among the alternative dates and times proposed by Buyer and promptly notify Buyer of such selection. (ii) Without limiting the Scope Book or any other term of this Agreement, Seller shall keep Buyer reasonably apprised of, and promptly notify Buyer of any change in the status of, each Project Performance Test, timely provide to Buyer such other material and information regarding each Project Performance Test as Buyer may reasonably request, and afford Buyer and its Representatives, including independent engineers and testing experts, a reasonable opportunity to witness each Project Performance Test. Notwithstanding anything to the contrary, a Project Performance Test, once begun, may not be interrupted or suspended and then resumed without Buyer’s prior written approval. Nothing in the Scope Book or this Agreement shall prevent Seller or the Project Performance Test Contractor from interrupting, suspending, cancelling, or terminating a Project Performance Test and scheduling and conducting, in accordance with the requirements of this Agreement and the Scope Book, a separate subsequent Project Performance Test. For the avoidance of doubt, nothing in this clause (ii) is intended to or shall operate to extend the Guaranteed Substantial Completion Date or the Substantial Completion Termination Trigger Date. (d) Buyer shall make the Project available for each Project Performance Test on the agreed dates and times of each Project Performance Test. Seller shall be responsible for providing all test instrumentation (including the instrumentation described in the Scope Book), equipment, systems, tools, calibrations, material, labor (including operators and testing specialists), utilities, and services necessary to conduct each Project Performance Test in accordance with the terms of this Agreement and for staffing and operating the Project as needed for each Project Performance Test. Without limiting Seller’s obligations with respect to any Project Performance Test or otherwise under this Agreement, Seller shall timely provide to Buyer such information regarding the staffing and operation of and data collection from the Project in preparation for, during, and following each Project Performance Test and the actual performance of the Project Performance Test as Buyer may reasonably request. Using Project Performance Test information provided to Buyer by Seller or available to Buyer from Project or MISO equipment, systems, and data, Buyer, as the Market Participant (as defined in the MISO Agreement) for the Project under the MISO Agreement, shall coordinate the scheduling, offering, and dispatch of energy and Other Electric Products and otherwise interface with MISO with respect to each Project Performance Test. Nothing in this Section 9.1(d) is intended to modify of affect the provisions of the MISO Agreement. (e) For each Project Performance Test, Seller shall cause the Project Performance Test Contractor to (i) prepare and complete the final written report of the Project Performance Test Contractor (the “Project Performance Test Report”) that documents, presents, analyzes, and explains the performance and final results of such Project Performance Test and related data and inputs in a logical, organized, and professional manner (the “Project Performance Test Results”) and certifies the accuracy and completeness of the Project Performance Test Report, including the Project Performance Test Results, within thirty (30) days after the conclusion of such Project Performance Test and (ii) deliver such Project Performance Test Report contemporaneously to Seller and Buyer. Each Project Performance Test Report shall meet the requirements set forth in this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests, and shall be subject to the approval of Buyer, which shall not be unreasonably withheld, delayed, or conditioned. Seller shall provide to Buyer (A) promptly after receipt, any draft written Project Performance Test Report prepared by the Project Performance Test Contractor and delivered to Seller and a reasonable opportunity (which shall be not less than fourteen (14) days for the initial draft) to review and comment thereon and (B) a reasonable opportunity to participate in any material communication between Seller and the Project Performance Test Contractor related to any Project Performance Test, including during a Project Performance Test. Seller shall consider, and shall ensure that Project Performance Test Contractor shall consider, in good faith any comment on any draft report provided by Buyer under this Section 9.1(e).9.1(e).‌

Project Performance Tests. (a) Seller and Buyer agree that this Article IX shall govern the performance of all Project Performance Tests under this Agreement and that all Project Performance Tests shall be performed in accordance with the requirements of this Agreement, including the Scope Book and the remainder of the Performance Standard. (b) Without limiting the foregoing or the terms of the Scope Book, Seller shall be responsible for the performance of each Project Performance Test. Seller shall bear and be responsible for the timely payment of the costs to perform each Project Performance Test and prepare the Project Performance Test Report setting forth the Project Performance Test Results of each such Project Performance Test, including all costs of the Project Performance Test Contractor. The allocation of the proceeds received from MISO, and responsibility for the costs and charges assessed by XXXXMISO, resulting from or arising out each Project Performance Test, shall be as set forth in the MISO Agreement. (i) For each Project Performance Test, Seller shall retain and require the Project Test Performance Contractor to conduct the Project Performance Test in accordance with the requirements of this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests. For the initial Project Performance Test, Seller shall (A) notify Buyer at least fifteen (15) days, but no more than seventy (70) days, prior to commencing such Project Performance Test, (B) confirm in writing to Buyer the dates and times of such Project Performance Test no later than five (5) Business Days prior to commencing such Project Performance Test, and (C) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book. For any subsequent Project Performance Test (including following cancellation of a Project Performance Test), Seller shall (1) notify Buyer at least five (5) Business Days prior to commencing such Project Performance Test, and (2) follow the other processes, procedures, terms, and conditions with regard to such Project Performance Test set forth in this Agreement, including in this Article IX and the Scope Book (including Appendix 5 thereof). If Buyer objects to Seller’s proposed dates and times for any Project Performance Test, Buyer shall propose in good faith at least three (3) new dates and times for such Project Performance Test that are as close to Seller’s initial proposed dates and times as is reasonably acceptable to Buyer and Buyer and Seller shall promptly select the dates and times of such Project Performance Test from among the alternative dates and times proposed by Buyer and promptly notify Buyer of such selection. (ii) Without limiting the Scope Book or any other term of this Agreement, Seller shall keep Buyer reasonably apprised of, and promptly notify Buyer of any change in the status of, each Project Performance Test, timely provide to Buyer such other material and information regarding each Project Performance Test as Buyer may reasonably request, and afford Buyer and its Representatives, including independent engineers and testing experts, a reasonable opportunity to witness each Project Performance Test. Notwithstanding anything to the contrary, a Project Performance Test, once begun, may not be interrupted or suspended and then resumed without Buyer’s prior written approval. Nothing in the Scope Book or this Agreement shall prevent Seller or the Project Performance Test Contractor from interrupting, suspending, cancelling, or terminating a Project Performance Test and scheduling and conducting, in accordance with the requirements of this Agreement and the Scope Book, a separate subsequent Project Performance Test. For the avoidance of doubt, nothing in this clause (ii) is intended to or shall operate to extend the Guaranteed Substantial Completion Date or the Substantial Completion Termination Trigger Date. (d) Buyer shall make the Project available for each Project Performance Test on the agreed dates and times of each Project Performance Test. Seller shall be responsible for providing all test instrumentation (including the instrumentation described in the Scope Book), equipment, systems, tools, calibrations, material, labor (including operators and testing specialists), utilities, and services necessary to conduct each Project Performance Test in accordance with the terms of this Agreement and for staffing and operating the Project as needed for each Project Performance Test. Without limiting Seller’s obligations with respect to any Project Performance Test or otherwise under this Agreement, Seller shall timely provide to Buyer such information regarding the staffing and operation of and data collection from the Project in preparation for, during, and following each Project Performance Test and the actual performance of the Project Performance Test as Buyer may reasonably request. Using Project Performance Test information provided to Buyer by Seller or available to Buyer from Project or MISO equipment, systems, and data, Buyer, as the Market Participant (as defined in the MISO Agreement) for the Project under the MISO Agreement, shall coordinate the scheduling, offering, and dispatch of energy and Other Electric Products and otherwise interface with MISO with respect to each Project Performance Test. Nothing in this Section 9.1(d) is intended to modify of affect the provisions of the MISO Agreement. (e) For each Project Performance Test, Seller shall cause the Project Performance Test Contractor to (i) prepare and complete the final written report of the Project Performance Test Contractor (the “Project Performance Test Report”) that documents, presents, analyzes, and explains the performance and final results of such Project Performance Test and related data and inputs in a logical, organized, and professional manner (the “Project Performance Test Results”) and certifies the accuracy and completeness of the Project Performance Test Report, including the Project Performance Test Results, within thirty (30) days after the conclusion of such Project Performance Test and (ii) deliver such Project Performance Test Report contemporaneously to Seller and Buyer. Each Project Performance Test Report shall meet the requirements set forth in this Agreement, including the Scope Book and the Performance Standard applicable to Project Performance Tests, and shall be subject to the approval of Buyer, which shall not be unreasonably withheld, delayed, or conditioned. Seller shall provide to Buyer (A) promptly after receipt, any draft written Project Performance Test Report prepared by the Project Performance Test Contractor and delivered to Seller and a reasonable opportunity (which shall be not less than fourteen (14) days for the initial draft) to review and comment thereon and (B) a reasonable opportunity to participate in any material communication between Seller and the Project Performance Test Contractor related to any Project Performance Test, including during a Project Performance Test. Seller shall consider, and shall ensure that Project Performance Test Contractor shall consider, in good faith any comment on any draft report provided by Buyer under this Section 9.1(e).