TERM; COMMERCIAL OPERATION DATE. 2.1 This Agreement shall become effective after execution by both Parties and after approval by the Commission is no longer subject to judicial review ("Effective Date"); provided, however, this Agreement shall not become effective until the Commission has determined that the prices to be paid for energy and capacity are just and reasonable, and in the public interest. For purposes of inter-jurisdictional cost allocation, this Agreement is a “New QF Contract” under the PacifiCorp Inter-Jurisdictional Cost Allocation Revised Protocol and, as such, its costs are allocated as a system resource unless any portion of the cost of this Agreement exceeds the cost PacifiCorp would have otherwise incurred acquiring comparable resources. In that event, the Revised Protocol assigns those excess costs on a situs basis. The rates, terms and conditions in this Agreement are in accordance with the rates, terms and conditions approved by the Commission in Docket No. 00-000-00 for purchases from qualifying facilities. In addition, for the purposes of inter-jurisdictional cost allocation, PacifiCorp represents that the costs of this Agreement do not exceed the costs PacifiCorp would have otherwise incurred acquiring resources in the market that are defined as “Comparable Resources” in Appendix A to the Inter-jurisdictional Cost Allocation Revised Protocol. In the event that the Commission order approving this Agreement contains any condition, that is materially adverse to either party, the party adversely impacted by the condition may terminate this Agreement by providing the other party notice within thirty (30) days of the entry of the Commission's order. 2.2 The term of this Agreement shall commence on the Effective Date and, except as otherwise provided herein, shall terminate at the end of the twentieth (20th) Contract Year. 2.3 Time is of the essence of this Agreement, and Seller’s ability to meet certain requirements prior to the Commercial Operation Date and to deliver energy and capacity by the Scheduled Commercial Operation Date is critically important. Therefore: 2.3.1 No later than -------months after the Effective Date, Seller shall provide Project Development Security as described in Section 8.1; 2.3.2 No later than ------ months after the Effective Date, Seller shall provide evidence of available fuel transportation or other arrangements sufficient to allow it to perform its obligations hereunder, except that nothing contained herein shall require Seller to obtain any form of No-Notice supply or transportation service, however characterized, or perform any obligations that would require such No-Notice service. 2.3.3 No later than ------ months after the Effective Date, Seller shall obtain and provide to PacifiCorp copies of all governmental permits and authorizations or such other interim authorizations necessary for construction of the Facility; 2.3.4 No later than ----- months after the Effective Date, Seller shall provide to PacifiCorp written evidence acceptable to PacifiCorp that Seller has obtained construction financing for the Facility (or alternatively permanent financing subject only to construction of the Facility and Seller’s execution of the lender’s loan documents); 2.3.5 No later than months after the Commercial Operation Date, Seller shall provide PacifiCorp with an As-built Supplement certified by a Licensed Professional Engineer that the As-built Supplement is substantially the same as Seller’s initial design; 2.3.6 No later than ------ from the Effective Date, Seller shall begin deliveries of Net Output for purposes of initiating Start-Up Testing, which power shall be paid for in accordance with Section 5.2; and 2.3.7 No later than ------ from the Effective Date, Seller shall have completed all requirements under Section 1.3 and established the Commercial - Operation Date. 2.4 Seller shall cause the Facility to achieve the Commercial Operation Date on or before the Scheduled Commercial Operation Date. If the Commercial Operation Date occurs ------ days after the Scheduled Commercial Operation Date (the “Delay Period”), PacifiCorp shall not pay the Seller the Scheduled Deliveries Payment as defined in Section 5.1 for any days during the Delay Period and the Fixed Capacity Payment shall be prorated for the month in which the Commercial Operation Date occurs. Seller shall pay PacifiCorp Delay Damages, equal to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price for any power that PacifiCorp would have scheduled from the Facility and not delivered, by the Seller, had the Commercial Operation Date occurred on or before the Scheduled Commercial Operation Date, up to a total of 120 days, subject to extension pursuant to the provisions of Section 11.1.4.
Appears in 2 contracts
TERM; COMMERCIAL OPERATION DATE. 2.1 This Agreement shall become effective after execution by both Parties and after approval by the Commission is no longer subject to judicial review ("“Effective Date"”); provided, however, this Agreement shall not become effective until the Commission has determined that the prices to be paid for energy and capacity are just and reasonable, and in the public interest. For purposes of inter-jurisdictional cost allocation, this Agreement is a “New QF Contract” under the PacifiCorp Inter-Jurisdictional Cost Allocation Revised Protocol and, as such, its costs are allocated as a system resource unless any portion of the cost of this Agreement exceeds the cost PacifiCorp would have otherwise incurred acquiring comparable resources. In that event, the Revised Protocol assigns those excess costs on a situs basis. The rates, terms and conditions in this Agreement are in accordance with the rates, terms and conditions approved by the Commission in Docket No. 00-000-00 for purchases from qualifying facilities. In addition, for the purposes of inter-jurisdictional cost allocation, PacifiCorp represents that the costs incurred by PacifiCorp for purchases of this Agreement do not exceed capacity and energy from Seller are legitimate expenses, all of which the costs Commission will allow PacifiCorp would have otherwise incurred acquiring resources to recover in rates in Utah in the market that are defined as “Comparable Resources” in Appendix A to the Inter-jurisdictional Cost Allocation Revised Protocol. In the event that the Commission order approving this Agreement contains any condition, that is materially adverse to either party, the party adversely impacted by the condition may terminate this Agreement by providing the other party notice within thirty (30) days jurisdictions deny recovery of the entry their proportionate share of the Commission's ordersaid expenses.
2.2 The term of this Agreement shall commence on the Effective Date and, except as otherwise provided herein, shall terminate at the end of the twentieth (20th) Contract Year.
2.3 Time is of the essence of this Agreement, and Seller’s 's ability to meet certain requirements prior to the Commercial Operation Date and to deliver energy and capacity by the Scheduled Commercial Operation Date is critically important. Therefore:,
2.3.1 No later than -------months after the Effective Date2.2.1 By , Seller shall provide Project Development Security as described in Section 8.1;
2.3.2 No later than ------ months after the Effective Date2.2.2 By , Seller shall provide evidence demonstrate to PacifiCorp's reasonable satisfaction that Seller has confirmed the availability of available and the means for obtaining fuel transportation or other arrangements sources of motive energy sufficient to allow it the Facility to perform its obligations hereunder, except that nothing contained herein shall require Seller to obtain any form generate the average annual Net Metered Output of No-Notice supply or transportation service, however characterized, or perform any obligations that would require such No-Notice service.kWh in each Contract Year for the full term of this Agreement;
2.3.3 No later than ------ months after the Effective Date2.2.3 By , Seller shall obtain and provide to PacifiCorp copies of all governmental permits and authorizations or such other interim authorizations necessary for construction of the Facility;
2.3.4 No later than ----- months after the Effective Date2.2.4 By , Seller shall provide to PacifiCorp written evidence acceptable to PacifiCorp that Seller has obtained construction financing for the Facility (or alternatively permanent financing subject only to construction of the Facility and Seller’s Xxxxxx's execution of the lender’s 's loan documents);
2.3.5 No later than months after the Commercial Operation Date2.2.5 By , Seller Seller, in accordance with Section 4.3, shall provide PacifiCorp with an As-built Supplement certified by a Licensed Professional Engineer that the As-built Supplement is substantially the same as Seller’s initial designacceptable to PacifiCorp;
2.3.6 No later than ------ from the Effective Date2.2.6 By , Seller shall provide Default Security required under Section 8.2 of this Agreement;
2.2.7 By , Seller shall begin deliveries of Net Output for purposes of initiating Start-Up Testing, which power shall be paid for in accordance with Section 5.2; and
2.3.7 No later than ------ from the Effective Date2.2.8 By , Seller shall have completed all requirements under Section 1.3 and established the Commercial - Operation Date.
2.4 2.3 Seller shall cause the Facility to achieve the Commercial Operation Date on or before the Scheduled Commercial Operation Date. If the Commercial Operation Date occurs ------ or more days after the Scheduled Commercial Operation Date (the “Delay Period”)Date, PacifiCorp shall not pay the Seller the Scheduled Deliveries Payment as defined in Section 5.1 for any days during the Delay Period and the Fixed Capacity Payment shall be prorated for the month in which liable to pay PacifiCorp delay damages equal to $ per day or portion of day the Commercial Operation Date occurs. Seller shall pay PacifiCorp Delay Damages, equal to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price for any power that PacifiCorp would have scheduled from the Facility and not delivered, by the Seller, had the Commercial Operation Date occurred on or before occurs after such date following the Scheduled Commercial Operation Date, up to a total of 120 daysdays [TO BE CONSISTENT WITH 11.1.5] (“Delay Liquidated Damages”). The parties agree that the damages PacifiCorp would incur due to delay in achieving the Commercial Operation Date on or before the Scheduled Commercial Operation Date would be difficult or impossible to predict with certainty, subject to extension pursuant to and that the provisions Delay Liquidated Damages are an appropriate approximation of Section 11.1.4such damages.
2.4 Except as otherwise provided herein, this Agreement shall terminate on
Appears in 1 contract
Samples: Power Purchase Agreement
TERM; COMMERCIAL OPERATION DATE.
2.1 This Agreement shall become effective after execution by both Parties and after approval by the Commission is no longer subject to judicial review ("“Effective Date"”); provided, however, this Agreement shall not become effective until the Commission has determined that the prices to be paid for energy and capacity are just and reasonable, and in the public interest. For purposes of inter-jurisdictional cost allocation, this Agreement is a “New QF Contract” under the PacifiCorp Inter-Jurisdictional Cost Allocation Revised Protocol and, as such, its costs are allocated as a system resource unless any portion of the cost of this Agreement exceeds the cost PacifiCorp would have otherwise incurred acquiring comparable resources. In that event, the Revised Protocol assigns those excess costs on a situs basis. The rates, terms and conditions in this Agreement are in accordance with the rates, terms and conditions approved by the Commission in Docket No. 00-000-00 for purchases from qualifying facilities. In addition, for the purposes of inter-jurisdictional cost allocation, PacifiCorp represents that the costs of this Agreement do not exceed the costs PacifiCorp would have otherwise incurred acquiring resources in the market that are defined as “Comparable Resources” in Appendix A to the Inter-Inter- jurisdictional Cost Allocation Revised Protocol. In the event that the Commission order approving this Agreement contains any condition, that is materially adverse to either partyParty, the party the Party adversely impacted by the condition may terminate this Agreement by providing the other party Party notice within thirty (30) days of the entry of the Commission's ’s order.
2.2 The term of this Agreement shall commence on the Effective Date and, except Except as otherwise provided herein, this Agreement shall terminate at on the end 20th anniversary of the twentieth (20th) Contract Year.Commercial Operation Date. Applicable provisions of this Agreement shall continue in effect after termination to the extent necessary to satisfy the terms and conditions of this Agreement and, as applicable, to provide for: final xxxxxxxx and adjustments related to the period prior to termination; payment of any money due and owing a Party pursuant to this Agreement; repayment of principal and interest associated with security funds; and the indemnifications specified in this Agreement.
2.3 Time is of the essence of this Agreement, and Seller’s ability to meet certain requirements prior to the Commercial Operation Date and to deliver energy and capacity by the Scheduled Commercial Operation Date is critically important. Therefore:Therefore:
2.3.1 No later than -------months On the earlier of (i) the date Seller obtains construction financing for the Facility (or alternatively permanent financing subject only to construction of the Facility and Seller’s execution of the lender’s loan documents), or (ii) the first Business Day after the Effective Financing Date, Seller shall provide Project Development Security as described in Section 8.1;8.1;
2.3.2 No later than ------ twelve (12) months after before the Effective Scheduled Commercial Operation Date, Seller shall provide evidence of available fuel transportation transportation, or other arrangements sufficient to allow it to perform its obligations hereunder, except that nothing contained herein shall require Seller to obtain any form of No-Notice supply or transportation service, however characterized, or perform any obligations that would require such No-Notice service.
2.3.3 No later than ------ twelve (12) months after before the Effective Scheduled Commercial Operation Date, Seller shall obtain and provide to PacifiCorp copies of all the governmental permits permits, licenses, and authorizations or such other interim authorizations necessary for construction of the FacilityFacility identified in Exhibit H;
2.3.4 No later than ----- months after sixty (60) days before the Effective Scheduled Commercial Operation Date, Seller shall provide to PacifiCorp written evidence reasonably acceptable to PacifiCorp that Seller has obtained construction financing for the Facility (or alternatively permanent financing subject only to construction of the Facility and Seller’s execution of the lender’s loan documents);; and
2.3.5 No later than months after 1 month before the Scheduled Commercial Operation Date, Seller shall provide PacifiCorp with an As-built Supplement certified by a Licensed Professional Engineer that the As-built Supplement is substantially the same as Seller’s initial design;
2.3.6 No later than ------ from the Effective Date, Seller shall use all reasonable efforts to begin deliveries of Net Output Test Energy for purposes of initiating Start-Up Testing, which power energy shall be paid for in accordance with Section 5.2; and
2.3.7 No later than ------ from the Effective Date, Seller shall have completed all requirements under Section 1.3 and established the Commercial - Operation Date.5.2.
2.4 Seller shall cause the Facility to achieve the Commercial Operation Date on or before the Scheduled Commercial Operation Date. If the Commercial Operation Date occurs ------ one (1) or more days after the Scheduled Commercial Operation Date (the “Delay Period”), PacifiCorp shall not pay the Seller the Scheduled Deliveries Payment Contract Price as defined in Section 5.1 for any days during the Delay Period Period, and the Fixed Capacity Payment shall be prorated for the month in which the Commercial Operation Date occurs. Seller shall pay PacifiCorp Delay Damages, equal to the positive difference, if any, obtained by subtracting the Delay Contract Price Price, in dollars, from the Replacement Price Delay Price, in dollars, for any power the Delay Energy purchased by PacifiCorp during the Delay Period to replace the Scheduled Deliveries that PacifiCorp would have scheduled Dispatched from the Facility and not delivered, by the Seller, had the Commercial Operation Date occurred on or before the Scheduled Commercial Operation Date, up to . The Delay Period will not exceed a total of 120 daysninety (90) days. Delay Damages will be calculated on a monthly basis and will be invoiced by PacifiCorp to Seller within twenty (20) days after the end of the month. Within twenty (20) days of Seller’s receipt of PacifiCorp’s invoice for Delay Damages, subject Seller shall (i) pay all undisputed amounts by wire transfer or as otherwise reasonably directed by PacifiCorp from time to extension pursuant time, and (ii) provide written notice to PacifiCorp of any disputed amounts invoiced by PacifiCorp, which notice will (a) set forth the disputed amount, and (b) describe in reasonable detail Seller’s position for disputing the amount. PacifiCorp shall submit to Seller upon request reasonably detailed information supporting its determination of the Scheduled Deliveries that would have been made during the Delay Period and the Delay Price for Delay Energy.
2.5 If, during the Term, Seller seeks to sell capacity and/or associated energy from the Facility in excess of the Net Dependable Capacity to PacifiCorp under a separate QF power purchase agreement, the Parties may seek to renegotiate as to how, if at all, such a separate QF power purchase agreement would impact this Agreement including, but not limited to, operation and control of the Facility per Section 6 and appropriate accounting adjustments as a result of capital lease treatment under FASB-13, or any successor thereto, or consolidation required by FIN-46, and if so, at what level. In the event the Parties are unable to reach agreement on these issues, the Parties may seek Commission review and determination of the issues. Notwithstanding anything in this Section to the provisions contrary, no amendment, modification, or supplement to this Agreement shall be binding on either Party except as provided in Section 22.1.
2.6 Notwithstanding anything in this Agreement to the contrary, Seller’s total liability to PacifiCorp for any failure to achieve or any delay in achieving the Commercial Operation Date of the Facility shall not exceed, including any draws on the Project Development Security, the amount of $1.8 million. Except for PacifiCorp’s right to terminate this Agreement in Section 11.1.411, the remedies provided in this Section 2 are the exclusive remedies of PacifiCorp for any delay or failure of Seller to achieve the Commercial Operation Date, and the remedies provided in this Section 2 are the sole liability of Seller to PacifiCorp for money damages for the failure to achieve or delay in achieving the Commercial Operation Date.
Appears in 1 contract
Samples: Power Purchase Agreement
TERM; COMMERCIAL OPERATION DATE. 2.1 This Agreement shall become effective after execution by both Parties and after approval by the Commission is no longer subject to judicial review ("Effective Date"); provided, however, this Agreement shall not become effective until the Commission has determined that the prices to be paid for energy and capacity are just and reasonable, and in the public interest. For purposes of inter-jurisdictional cost allocation, this Agreement is a “New QF Contract” under the PacifiCorp Inter-Jurisdictional Cost Allocation Revised Protocol and, as such, its costs are allocated as a system resource unless any portion of the cost of this Agreement exceeds the cost PacifiCorp would have otherwise incurred acquiring comparable resources. In that event, the Revised Protocol assigns those excess costs on a situs basis. The rates, terms and conditions in this Agreement are in accordance with the rates, terms and conditions approved by the Commission in Docket No. 00-000-00 for purchases from qualifying facilities. In addition, for the purposes of inter-jurisdictional cost allocation, PacifiCorp represents that the costs of this Agreement do not exceed the costs PacifiCorp would have otherwise incurred acquiring resources in the market that are defined as “Comparable Resources” in Appendix A to the Inter-Inter- jurisdictional Cost Allocation Revised Protocol. In the event that the Commission order approving this Agreement contains any condition, that is materially adverse to either party, the party adversely impacted by the condition may terminate this Agreement by providing the other party notice within thirty (30) days of the entry of the Commission's order.
2.2 The term of this Agreement shall commence on the Effective Date and, except as otherwise provided herein, shall terminate at the end of the twentieth (20th) Contract Year.
2.3 Time is of the essence of this Agreement, and Seller’s ability to meet certain requirements prior to the Commercial Operation Date and to deliver energy and capacity by the Scheduled Commercial Operation Date is critically important. Therefore:
2.3.1 No later than -------months after the Effective Date, Seller shall provide Project Development Security as described in Section 8.1;
2.3.2 No later than ------ months after the Effective Date, Seller shall provide evidence of available fuel transportation or other arrangements sufficient to allow it to perform its obligations hereunder, except that nothing contained herein shall require Seller to obtain any form of No-Notice supply or transportation service, however characterized, or perform any obligations that would require such No-Notice service.
2.3.3 No later than ------ months after the Effective Date, Seller shall obtain and provide to PacifiCorp copies of all governmental permits and authorizations or such other interim authorizations necessary for construction of the Facility;
2.3.4 No later than ----- months after the Effective Date, Seller shall provide to PacifiCorp written evidence acceptable to PacifiCorp that Seller has obtained construction financing for the Facility (or alternatively permanent financing subject only to construction of the Facility and Seller’s execution of the lender’s loan documents);
2.3.5 No later than months after the Commercial Operation Date, Seller shall provide PacifiCorp with an As-built Supplement certified by a Licensed Professional Engineer that the As-built Supplement is substantially the same as Seller’s initial design;
2.3.6 No later than ------ from the Effective Date, Seller shall begin deliveries of Net Output for purposes of initiating Start-Up Testing, which power shall be paid for in accordance with Section 5.2; and
2.3.7 No later than ------ from the Effective Date, Seller shall have completed all requirements under Section 1.3 and established the Commercial - Operation Date.
2.4 Seller shall cause the Facility to achieve the Commercial Operation Date on or before the Scheduled Commercial Operation Date. If the Commercial Operation Date occurs ------ days after the Scheduled Commercial Operation Date (the “Delay Period”), PacifiCorp shall not pay the Seller the Scheduled Deliveries Payment as defined in Section 5.1 for any days during the Delay Period and the Fixed Capacity Payment shall be prorated for the month in which the Commercial Operation Date occurs. Seller shall pay PacifiCorp Delay Damages, equal to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price for any power that PacifiCorp would have scheduled from the Facility and not delivered, by the Seller, had the Commercial Operation Date occurred on or before the Scheduled Commercial Operation Date, up to a total of 120 days, subject to extension pursuant to the provisions of Section 11.1.4.
Appears in 1 contract
Samples: Power Purchase Agreement
TERM; COMMERCIAL OPERATION DATE. 2.1 This Agreement shall become effective after execution by both Parties and after approval by the Commission is no longer subject to judicial review ("“Effective Date"”); provided, however, this Agreement shall not become effective until the Commission has determined that the prices to be paid for energy and capacity are just and reasonable, and in the public interest. For purposes of inter-jurisdictional cost allocation, this Agreement is a “New QF Contract” under the PacifiCorp Inter-Jurisdictional Cost Allocation Revised Protocol and, as such, its costs are allocated as a system resource unless any portion of the cost of this Agreement exceeds the cost PacifiCorp would have otherwise incurred acquiring comparable resources. In that event, the Revised Protocol assigns those excess costs on a situs basis. The rates, terms and conditions in this Agreement are in accordance with the rates, terms and conditions approved by the Commission in Docket No. 00-000-00 for purchases from qualifying facilities. In addition, for the purposes of inter-jurisdictional cost allocation, PacifiCorp represents that the costs incurred by PacifiCorp for purchases of this Agreement do not exceed capacity and energy from Seller are legitimate expenses, all of which the costs Commission will allow PacifiCorp would have otherwise incurred acquiring resources to recover in rates in Utah in the market that are defined as “Comparable Resources” in Appendix A to the Inter-jurisdictional Cost Allocation Revised Protocol. In the event that the Commission order approving this Agreement contains any condition, that is materially adverse to either party, the party adversely impacted by the condition may terminate this Agreement by providing the other party notice within thirty (30) days jurisdictions deny recovery of the entry their proportionate share of the Commission's ordersaid expenses.
2.2 The term of this Agreement shall commence on the Effective Date and, except as otherwise provided herein, shall terminate at the end of the twentieth (20th) Contract Year.
2.3 Time is of the essence of this Agreement, and Seller’s 's ability to meet certain requirements prior to the Commercial Operation Date and to deliver energy and capacity by the Scheduled Commercial Operation Date is critically important. Therefore:,
2.3.1 No later than -------months after the Effective Date2.2.1 By , Seller shall provide Project Development Security as described in Section 8.1;
2.3.2 No later than ------ months after the Effective Date2.2.2 By , Seller shall provide evidence demonstrate to PacifiCorp's reasonable satisfaction that Seller has confirmed the availability of available and the means for obtaining fuel transportation or other arrangements sources of motive energy sufficient to allow it the Facility to perform its obligations hereunder, except that nothing contained herein shall require Seller to obtain any form generate the average annual Net Metered Output of No-Notice supply or transportation service, however characterized, or perform any obligations that would require such No-Notice service.kWh in each Contract Year for the full term of this Agreement;
2.3.3 No later than ------ months after the Effective Date2.2.3 By , Seller shall obtain and provide to PacifiCorp copies of all governmental permits and authorizations or such other interim authorizations necessary for construction of the Facility;
2.3.4 No later than ----- months after the Effective Date2.2.4 By , Seller shall provide to PacifiCorp written evidence acceptable to PacifiCorp that Seller has obtained construction financing for the Facility (or alternatively permanent financing subject only to construction of the Facility and Seller’s 's execution of the lender’s 's loan documents);
2.3.5 No later than months after the Commercial Operation Date2.2.5 By , Seller Seller, in accordance with Section 4.3, shall provide PacifiCorp with an As-built Supplement certified by a Licensed Professional Engineer that the As-built Supplement is substantially the same as Seller’s initial designacceptable to PacifiCorp;
2.3.6 No later than ------ from the Effective Date2.2.6 By , Seller shall provide Default Security required under Section 8.2 of this Agreement;
2.2.7 By , Seller shall begin deliveries of Net Output for purposes of initiating Start-Up Testing, which power shall be paid for in accordance with Section 5.2; and
2.3.7 No later than ------ from the Effective Date2.2.8 By , Seller shall have completed all requirements under Section 1.3 and established the Commercial - Operation Date.
2.4 2.3 Seller shall cause the Facility to achieve the Commercial Operation Date on or before the Scheduled Commercial Operation Date. If the Commercial Operation Date occurs ------ or more days after the Scheduled Commercial Operation Date (the “Delay Period”)Date, PacifiCorp shall not pay the Seller the Scheduled Deliveries Payment as defined in Section 5.1 for any days during the Delay Period and the Fixed Capacity Payment shall be prorated for the month in which liable to pay PacifiCorp delay damages equal to $ per day or portion of day the Commercial Operation Date occurs. Seller shall pay PacifiCorp Delay Damages, equal to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price for any power that PacifiCorp would have scheduled from the Facility and not delivered, by the Seller, had the Commercial Operation Date occurred on or before occurs after such date following the Scheduled Commercial Operation Date, up to a total of 120 daysdays [TO BE CONSISTENT WITH 11.1.5] (“Delay Liquidated Damages”). The parties agree that the damages PacifiCorp would incur due to delay in achieving the Commercial Operation Date on or before the Scheduled Commercial Operation Date would be difficult or impossible to predict with certainty, subject to extension pursuant to and that the provisions Delay Liquidated Damages are an appropriate approximation of Section 11.1.4such damages.
2.4 Except as otherwise provided herein, this Agreement shall terminate on
Appears in 1 contract
Samples: Power Purchase Agreement
TERM; COMMERCIAL OPERATION DATE. 2.1 This Agreement shall become effective after execution by both Parties and after approval by the Commission is no longer subject to judicial review ("“Effective Date"”); provided, however, this Agreement shall not become effective until the Commission has determined that the prices to be paid for energy and capacity are just and reasonable, and in the public interest. For purposes of inter-jurisdictional cost allocation, this Agreement is a “New QF Contract” under the PacifiCorp Inter-Jurisdictional Cost Allocation Revised Protocol and, as such, its costs are allocated as a system resource unless any portion of the cost of this Agreement exceeds the cost PacifiCorp would have otherwise incurred acquiring comparable resources. In that event, the Revised Protocol assigns those excess costs on a situs basis. The rates, terms and conditions in this Agreement are in accordance with the rates, terms and conditions approved by the Commission in Docket No. 00-000-00 for purchases from qualifying facilities. In addition, for the purposes of inter-jurisdictional cost allocation, PacifiCorp represents that the costs of this Agreement do not exceed the costs PacifiCorp would have otherwise incurred acquiring resources in the market that are defined as “Comparable Resources” in Appendix A to the Inter-Inter- jurisdictional Cost Allocation Revised Protocol. In the event that the Commission order approving this Agreement contains any condition, that is materially adverse to either partyParty, the party Party adversely impacted by the condition may terminate this Agreement by providing the other party Party notice within thirty (30) days of the entry of the Commission's ’s order.
2.2 The term of this Agreement shall commence on the Effective Date and, except Except as otherwise provided herein, this Agreement shall terminate at on the end 20th anniversary of the twentieth (20th) Contract YearCommercial Operation Date. Applicable provisions of this Agreement shall continue in effect after termination to the extent necessary to satisfy the terms and conditions of this Agreement and, as applicable, to provide for: final xxxxxxxx and adjustments related to the period prior to termination; payment of any money due and owing a Party pursuant to this Agreement; repayment of principal and interest associated with security funds; and the indemnifications specified in this Agreement.
2.3 Time is of the essence of this Agreement, and Seller’s ability to meet certain requirements prior to the Commercial Operation Date and to deliver energy and capacity by the Scheduled Commercial Operation Date is critically important. Therefore:
2.3.1 No later than -------months On the earlier of (i) the date Seller obtains construction financing for the Facility (or alternatively permanent financing subject only to construction of the Facility and Seller’s execution of the lender’s loan documents), or (ii) the first Business Day after the Effective Financing Date, Seller shall provide Project Development Security as described in Section 8.1;
2.3.2 No later than ------ twelve (12) months after before the Effective Scheduled Commercial Operation Date, Seller shall provide evidence of available fuel transportation transportation, or other arrangements sufficient to allow it to perform its obligations hereunder, except that nothing contained herein shall require Seller to obtain any form of No-Notice supply or transportation service, however characterized, or perform any obligations that would require such No-Notice service.
2.3.3 No later than ------ twelve (12) months after before the Effective Scheduled Commercial Operation Date, Seller shall obtain and provide to PacifiCorp copies of all the governmental permits permits, licenses, and authorizations or such other interim authorizations necessary for construction of the FacilityFacility identified in Exhibit H;
2.3.4 No later than ----- months after sixty (60) days before the Effective Scheduled Commercial Operation Date, Seller shall provide to PacifiCorp written evidence reasonably acceptable to PacifiCorp that Seller has obtained construction financing for the Facility (or alternatively permanent financing subject only to construction of the Facility and Seller’s execution of the lender’s loan documents);; and
2.3.5 No later than months after 1 month before the Scheduled Commercial Operation Date, Seller shall provide PacifiCorp with an As-built Supplement certified by a Licensed Professional Engineer that the As-built Supplement is substantially the same as Seller’s initial design;
2.3.6 No later than ------ from the Effective Date, Seller shall use all reasonable efforts to begin deliveries of Net Output Test Energy for purposes of initiating Start-Up Testing, which power energy shall be paid for in accordance with Section 5.2; and
2.3.7 No later than ------ from the Effective Date, Seller shall have completed all requirements under Section 1.3 and established the Commercial - Operation Date.
2.4 Seller shall cause the Facility to achieve the Commercial Operation Date on or before the Scheduled Commercial Operation Date. If the Commercial Operation Date occurs ------ one (1) or more days after the Scheduled Commercial Operation Date (the “Delay Period”), PacifiCorp shall not pay the Seller the Scheduled Deliveries Payment Contract Price as defined in Section 5.1 for any days during the Delay Period Period, and the Fixed Capacity Payment shall be prorated for the month in which the Commercial Operation Date occurs. Seller shall pay PacifiCorp Delay Damages, equal to the positive difference, if any, obtained by subtracting the Delay Contract Price Price, in dollars, from the Replacement Price Delay Price, in dollars, for any power the Delay Energy purchased by PacifiCorp during the Delay Period to replace the Scheduled Deliveries that PacifiCorp would have scheduled Dispatched from the Facility and not delivered, by the Seller, had the Commercial Operation Date occurred on or before the Scheduled Commercial Operation Date, up to . The Delay Period will not exceed a total of 120 ninety (90) days. Delay Damages will be calculated on a monthly basis and will be invoiced by PacifiCorp to Seller within twenty (20) days after the end of the month. Within twenty (20) days of Seller’s receipt of PacifiCorp’s invoice for Delay Damages, subject Seller shall (i) pay all undisputed amounts by wire transfer or as otherwise reasonably directed by PacifiCorp from time to extension pursuant time, and (ii) provide written notice to PacifiCorp of any disputed amounts invoiced by PacifiCorp, which notice will (a) set forth the disputed amount, and (b) describe in reasonable detail Seller’s position for disputing the amount. PacifiCorp shall submit to Seller upon request reasonably detailed information supporting its determination of the Scheduled Deliveries that would have been made during the Delay Period and the Delay Price for Delay Energy.
2.5 If, during the Term, Seller seeks to sell capacity and/or associated energy from the Facility in excess of the Net Dependable Capacity to PacifiCorp under a separate QF power purchase agreement, the Parties may seek to renegotiate as to how, if at all, such a separate QF power purchase agreement would impact this Agreement including, but not limited to, operation and control of the Facility per Section 6 and appropriate accounting adjustments as a result of capital lease treatment under FASB-13, or any successor thereto, or consolidation required by FIN-46, and if so, at what level. In the event the Parties are unable to reach agreement on these issues, the Parties may seek Commission review and determination of the issues. Notwithstanding anything in this Section to the provisions contrary, no amendment, modification, or supplement to this Agreement shall be binding on either Party except as provided in Section 22.1.
2.6 Notwithstanding anything in this Agreement to the contrary, Seller’s total liability to PacifiCorp for any failure to achieve or any delay in achieving the Commercial Operation Date of the Facility shall not exceed, including any draws on the Project Development Security, the amount of $1.8 million. Except for PacifiCorp’s right to terminate this Agreement in Section 11.1.411, the remedies provided in this Section 2 are the exclusive remedies of PacifiCorp for any delay or failure of Seller to achieve the Commercial Operation Date, and the remedies provided in this Section 2 are the sole liability of Seller to PacifiCorp for money damages for the failure to achieve or delay in achieving the Commercial Operation Date.
Appears in 1 contract
Samples: Power Purchase Agreement
