Milestone Schedule. (a) Attached as Appendix I is a milestone schedule with deadlines for the development of the Facility through the Commercial Operation Date (each milestone, a “Milestone” and each date by which a Milestone is to be completed, a “Milestone Date”). Seller shall achieve each Milestone by the Milestone Date therefor. Until the Commercial Operation Date, Seller shall provide Buyer with a report on a quarterly basis (until six (6) months prior to the scheduled Commercial Operation Date, at which time such reports shall be provided on a Monthly basis) that includes: (i) a description of the Site plan for the Facility, (ii) a description of any planned changes to the Facility or Site plan since the previously delivered report, (iii) a bar chart schedule showing progress to achieving the remaining Milestones, (iv) a chart showing the critical path schedule of major items and activities, (v) a summary of activities at the Facility during the previous Month, (vi) a forecast of activities during the then-current Month, (vii) a list of any issues that could impact Seller’s achievement of Milestones by the applicable Milestone Dates, and (viii) pictures, in sufficient quantity and of appropriate detail, documenting construction and startup progress with respect to the Facility. If Seller anticipates that it will not achieve a Milestone by the applicable Milestone Date (as such date may be extended pursuant to this Section 3.6), Seller shall promptly prepare and deliver to Buyer a remedial action plan (“Remedial Action Plan”), which shall set forth (1) the anticipated period of delay, (2) the basis for such delay, (3) an outline of the commercially reasonable steps that Seller is taking to address the delay and to ensure that future Milestones, including the Guaranteed Commercial Operation Date, will be timely achieved, (4) a proposed revised date for achievement of the applicable Milestone and (5) such other information and in such detail as may be reasonably requested by Buyer. Except as set forth in Section 3.6(c), Seller shall not have any liability for failure to timely achieve a Milestone other than the obligation to submit a Remedial Action Plan; provided, however, that the foregoing shall not limit Buyer’s right to exercise any right or remedy available under this Agreement or at law or in equity for any other Default occurring concurrently with or before or after Seller’s delay in achievement of the applicable Milestone. (b) Each Milestone Date (including the Outside Commercial Operation Date) may be extended, on a day-for-day basis to the extent Seller is actually, demonstrably and unavoidably delayed in achieving such Milestone due to Force Majeure; provided that the Outside Commercial Operation Date shall not be extended beyond June 30, 2017, for any reason whatsoever. (c) If Seller fails to achieve any Key Milestone by the applicable Milestone Date, including a failure to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date (as may be extended pursuant to Section 3.6(b)), Seller shall pay liquidated damages to Buyer in an amount equal to (i) the number of days between the Milestone Date and the date upon which such Key Milestone is achieved (or the Agreement is terminated by Buyer), multiplied by (ii) the applicable daily liquidated damage amount set forth for such Key Milestone in Appendix I (the “Daily Delay Damages”). For the avoidance of doubt, if multiple Key Milestones are missed, Seller shall pay Daily Delay Damages for each Key Milestone. If Seller fails to achieve any Key Milestone other than the Guaranteed Commercial Operation Date, by the date that is one hundred eighty (180) days after the Milestone Date for such Key Milestone, Buyer shall have the right in its sole discretion and without penalty to (1) terminate this Agreement for a Default under Section 13.4, or (2) allow Seller to continue to pay the Daily Delay Damages to Buyer, during which time such Buyer shall not terminate the Agreement based on Seller’s failure to timely achieve such Key Milestone. If Seller achieves the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, then Buyer shall refund to Seller, without interest, any amounts previously paid to such Buyer as Daily Delay Damages for failure to achieve the Environmental Compliance Key Milestone and/or the Site Control Key Milestone by the respective Milestone Date therefor. If Seller fails to achieve Commercial Operation by the Outside Commercial Operation Date (as such date may be extended pursuant to Section 3.6(b)), Buyer shall have the right in its sole discretion and without penalty to terminate this Agreement for a Default under Section 13.4. (d) The damages that Buyer would incur due to Seller’s failure to timely achieve a Key Milestone would be difficult or impossible to predict with certainty, and it is impractical or difficult to assess actual damages in those circumstances, but the Daily Delay Damages are a fair and reasonable calculation of such damages, and shall be Seller’s sole liability and obligation, and Buyers’ sole right and remedy, for Seller’s failure to achieve any Key Milestone by the Milestone Date therefor. Notwithstanding the foregoing, the Daily Delay Damages shall not limit Buyer’s right to exercise any right or remedy available under this Agreement or at law or in equity for any Default occurring concurrently with, before or after Seller’s delay in achievement of the applicable Key Milestone, or in connection with any termination for failure to achieve a Key Milestone by the Milestone Date therefor or Commercial Operation by the Outside Commercial Operation Date.
Appears in 1 contract
Sources: Power Sales Agreement
Milestone Schedule. The Parties have agreed upon a schedule (a) Attached the “Milestone Schedule”), appended hereto as Appendix I is a milestone schedule with deadlines Exhibit 1, for the development performance by BAMAGAS of the Facility through activities required to complete the Commercial Operation Date (each milestone, a “Milestone” Pipeline and each date the BAMAGAS Lateral(s). Any changes to the Milestone Schedule must be agreed to in writing by which the Parties. BAMAGAS shall notify CES in writing when a Milestone is has been completed. In the event that BAMAGAS fails to be completedmeet any Milestone upon the expiration date of the Completion Period provided for in the Milestone Schedule after the applicable notice to proceed in writing has been received by BAMAGAS from CES or within any extension period agreed to in writing by CES, BAMAGAS shall, within ten (10) Days following such failure, provide to CES a plan (the “Cure Plan”) stating the actions it will endeavor to undertake to meet such Milestone Datewithin a period not to exceed thirty (30) Days after submission of the Cure Plan (“Cure Period”). Seller shall achieve each Milestone by In the event that BAMAGAS fails to provide a Cure Plan as required, or fails to diligently pursue a Cure Plan, or fails to meet the Milestone Date therefor. Until within the Commercial Operation DateCure Period, Seller shall provide Buyer with a report on a quarterly basis (until six (6) months prior to the scheduled Commercial Operation Date, at which time such reports shall be provided on a Monthly basis) that includes: (i) a description of the Site plan for the Facility, (ii) a description of any planned changes to the Facility or Site plan since the previously delivered report, (iii) a bar chart schedule showing progress to achieving the remaining Milestones, (iv) a chart showing the critical path schedule of major items and activities, (v) a summary of activities at the Facility during the previous Month, (vi) a forecast of activities during the then-current Month, (vii) a list of any issues that could impact Seller’s achievement of Milestones by the applicable Milestone Dates, and (viii) pictures, in sufficient quantity and of appropriate detail, documenting construction and startup progress with respect to the Facility. If Seller anticipates that it will not achieve a Milestone by the applicable Milestone Date (as such date may be extended pursuant to this Section 3.6), Seller shall promptly prepare and deliver to Buyer a remedial action plan (“Remedial Action Plan”), which shall set forth (1) the anticipated period of delay, (2) the basis for such delay, (3) an outline of the commercially reasonable steps that Seller is taking to address the delay and to ensure that future Milestones, including the Guaranteed Commercial Operation Date, will be timely achieved, (4) a proposed revised date for achievement of the applicable Milestone and (5) such other information and in such detail as may be reasonably requested by Buyer. Except as set forth in Section 3.6(c), Seller shall not have any liability for failure to timely achieve a Milestone other than the obligation to submit a Remedial Action Plan; provided, however, that the foregoing shall not limit Buyer’s right to exercise any right or remedy available under this Agreement or at law or in equity for any other Default occurring concurrently with or before or after Seller’s delay in achievement of the applicable Milestone.
(b) Each Milestone Date (including the Outside Commercial Operation Date) may be extended, on a day-for-day basis to the extent Seller is actually, demonstrably and unavoidably delayed in achieving such Milestone due to Force Majeure; provided that the Outside Commercial Operation Date shall not be extended beyond June 30, 2017, for any reason whatsoever.
(c) If Seller fails to achieve any Key Milestone by the applicable Milestone Date, including a failure to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date (as may be extended pursuant to Section 3.6(b)), Seller shall pay liquidated damages to Buyer in an amount equal to (i) the number of days between the Milestone Date and the date upon which such Key Milestone is achieved (or the Agreement is terminated by Buyer), multiplied by (ii) the applicable daily liquidated damage amount set forth for such Key Milestone in Appendix I (the “Daily Delay Damages”). For the avoidance of doubt, if multiple Key Milestones are missed, Seller shall pay Daily Delay Damages for each Key Milestone. If Seller fails to achieve any Key Milestone other than the Guaranteed Commercial Operation Date, by the date that is one hundred eighty (180) days after the Milestone Date for such Key Milestone, Buyer CES shall have the right in (but not the obligation), upon ten (10) Days advance written notice given to BAMAGAS, to take over the construction of the Pipeline and the BAMAGAS Lateral(s) and to cause to be taken such actions to carry out BAMAGAS obligations to complete the Pipeline and/or BAMAGAS Lateral(s), at CES sole risk and expense. Upon the earlier of (a) such time as BAMAGAS can demonstrate to CES that it can fulfill its sole discretion obligations hereunder and without penalty to
(1) terminate this Agreement for a Default under Section 13.4complete the construction of the Pipeline and BAMAGAS Lateral(s), as applicable, or (2b) allow Seller the completion of construction of the Pipeline and the BAMAGAS Lateral(s) by CES pursuant to continue to its step in rights, and provided that BAMAGAS reimburses CES for one hundred ten percent (110%) of the reasonable expenses incurred by it in the execution of its step in rights (or if such expenses or a portion thereof are disputed, shall pay the Daily Delay Damages to Buyer, during which time undisputed portion and deposit the disputed portion in escrow with a mutually agreeable escrow agent pending arbitration of such Buyer shall not terminate the Agreement based on Seller’s failure to timely achieve such Key Milestone. If Seller achieves the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, then Buyer shall refund to Seller, without interest, any amounts previously paid to such Buyer as Daily Delay Damages for failure to achieve the Environmental Compliance Key Milestone and/or the Site Control Key Milestone by the respective Milestone Date therefor. If Seller fails to achieve Commercial Operation by the Outside Commercial Operation Date (as such date may be extended disputed expenses pursuant to Section 3.6(b)Article XVI hereof), Buyer BAMAGAS shall have the right to complete construction and take over the Pipeline and the BAMAGAS Lateral(s). CES shall assign to BAMAGAS all contracts, materials and property rights it acquired in the execution of its sole discretion and without penalty to terminate this Agreement for a Default under Section 13.4.
(d) The damages that Buyer would incur due to Seller’s failure to timely achieve a Key Milestone would be difficult or impossible to predict with certainty, and it is impractical or difficult to assess actual damages step in those circumstances, but the Daily Delay Damages are a fair and reasonable calculation of such damages, rights and shall be Seller’s sole liability provide a complete and obligation, and Buyersdetailed accounting of its expenses. The provisions of this Section 2.3 shall in no way limit CES’ sole right and remedy, for Seller’s failure to achieve any Key Milestone by the Milestone Date thereforrights under Article XII hereof. Notwithstanding the foregoing, if BAMAGAS determines that the Daily Delay Damages shall not limit Buyer’s right expenses incurred by CES in the exercise of its step in rights are more than BAMAGAS is willing to exercise any right or remedy available under this Agreement or at law or in equity reimburse CES for any Default occurring concurrently with, (whether determined by BAMAGAS before or after Seller’s delay the arbitration as to any disputed expenses), then CES shall (i) pay BAMAGAS 110% of all its reasonable expenses incurred in achievement the construction of the applicable Key MilestonePipeline and BAMAGAS Lateral(s) and (ii) reimburse BAMAGAS for any and all sums paid by BAMAGAS to CES for expenses incurred by CES in the exercise of its step in rights, or and BAMAGAS shall assign to CES all contracts, materials and property rights it acquired in connection with any termination for failure to achieve a Key Milestone by its construction of the Milestone Date therefor or Commercial Operation by Pipeline and the Outside Commercial Operation DateBAMAGAS Lateral(s).
Appears in 1 contract
Sources: Natural Gas Pipeline Construction and Transportation Agreement (American Midstream Partners, LP)
Milestone Schedule. (a) Attached as Appendix I is a milestone schedule with deadlines for the development of the Facility through the Commercial Operation Date (each milestone, a “Milestone” and each date by which a Milestone is to be completed, a “Milestone Date”). Seller shall achieve each Milestone by From the Milestone Effective Date therefor. Until until the Commercial Operation Date, Seller shall provide Buyer with a report on a quarterly basis (until six (6) months prior to the scheduled Commercial Operation Date, at which time such reports shall be provided on a Monthly basis) that includes: (i) a description of the Site plan for the Facility, (ii) a description of any material or planned changes to the Facility or Site plan since the previously delivered report, (iii) a bar chart schedule showing progress to achieving the remaining Milestones, (iv) a chart showing description about the critical path schedule of major items and activitiesprogress relative to the Milestones, including whether Seller has met or is on target to meet the Milestones, (v) a summary of activities at the Facility during the previous MonthMonth or quarter, as applicable, (vi) a forecast of activities during the then-current MonthMonth or quarter, as applicable, (vii) a list of any issues that could are likely to potentially impact Seller’s achievement of Milestones by the applicable Milestone Dates, and (viii) pictures, in sufficient quantity and of appropriate detail, documenting construction and startup progress with respect to the Facility. If Seller anticipates that it will not achieve misses a Milestone milestone set forth in Appendix I by the applicable Milestone Date more than ten (as such date may be extended pursuant to this Section 3.6)10) Business Days, then within thirty (30) days, Seller shall promptly prepare and deliver to Buyer a remedial action plan that identifies (i) the anticipated period of delay; (ii) the basis for such delay; and (iii) a remedial action plan (“Remedial Action Plan”), which shall set forth (1) the anticipated period of delay, (2) the basis for such delay, (3) an outline of outlining the commercially reasonable steps that Seller is taking to address the delay and to ensure that future Milestonesmilestones, including the Guaranteed Commercial Operation Date, will be timely achieved, (4) a proposed revised achieved by the required date for achievement of to the applicable Milestone and (5) such other information and in such detail as may be reasonably requested by Buyerextent possible. Except as set forth in Section 3.6(c3.3(c), Seller shall not have any liability for failure to timely achieve a Milestone other than the obligation to submit a Remedial Action Plan; provided, however, that the foregoing shall not limit Buyer’s right to exercise any right or remedy available under this Agreement Agreement, or at law or in equity (consistent with the terms of this Agreement), for any other Default occurring concurrently with or before or after Seller’s delay in achievement of the applicable Milestone.
(b) Each Key Milestone Date (including the Outside Commercial Operation Date) may be extended, on extended without being subject to Daily Delay Damages under a day-for-day basis to the extent Seller is actually, demonstrably and unavoidably delayed in achieving such Milestone due to Force MajeureDevelopment Cure Period; provided that that, for the Outside avoidance of doubt, the Commercial Operation Date shall cannot occur after the Commercial Operation Date Deadline, and the Commercial Operation Date Deadline cannot be extended beyond June 30, 2017, for any reason whatsoeverextended.
(c) If Seller fails to achieve any Key Milestone by the applicable Milestone Date, including (as the Milestone Date may have been extended under a Development Cure Period), i.e., a failure to achieve the Construction Start Certification by the Guaranteed Construction Start Date or failure to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date (as may be extended pursuant to Section 3.6(b))Date, Seller shall pay liquidated damages to Buyer for up to one hundred eighty (180) days for each such failure in an a daily amount for each Key Milestone equal to (i1) the number of days between the Milestone Date and the date upon which such Key Milestone is achieved (or the Agreement is terminated by Buyer)Development Security amount required hereunder, multiplied divided by (ii2) the applicable daily liquidated damage amount set forth for such Key Milestone in Appendix I one hundred eighty (180) (the “Daily Delay Damages”). For the avoidance of doubt, if multiple Key Milestones are missed, Seller shall pay Daily Delay Damages for each Key Milestone. If Seller fails to achieve any Key Milestone other than the Guaranteed Commercial Operation Date, by the date that is within one hundred eighty (180) days after of the Milestone Guaranteed Construction Start Date for such Key Milestoneor Guaranteed Commercial Operation Date, as applicable, Buyer shall have the right in its sole discretion and without penalty to
to (1) terminate this Agreement for a Default under Section 13.4, 13.2 or (2) allow Seller to continue to pay the Daily Delay Damages to Buyer, during which time such and, to the extent Seller continues to pay Daily Delay Damages, Buyer shall not terminate the this Agreement based on Seller’s failure to timely achieve such Key MilestoneMilestone by the Milestone Date therefor. If Seller achieves the Commercial Operation Date on or before by the Guaranteed Commercial Operation Date, then Buyer shall refund to Seller, without interest, any amounts previously paid to such Buyer as Daily Delay Damages for failure to achieve the Environmental Compliance Key Milestone and/or the Site Control a Key Milestone by the respective Milestone Date therefor. If Seller fails to achieve Commercial Operation by the Outside Commercial Operation Date (as such date may be extended pursuant to Section 3.6(b)), Buyer shall have the right in its sole discretion and without penalty to terminate this Agreement for a Default under pursuant to Section 13.413.1(k) if Seller fails to pay the Daily Delay Damages as required by this Section 3.3(c). Either Party may terminate this Agreement, with no liability or penalty to Buyer, if Commercial Operation is not achieved by the Commercial Operation Date Deadline; provided that, Buyer is entitled to either the Pre-COD Termination Fee or the Damage Payment, as applicable, and within ten (10) Business Days Buyer shall return any remaining Development Security held by Buyer to Seller; provided further that Seller’s termination is not effective until the either the Pre-COD Termination Fee or the Damage Payment, as applicable, is received by Buyer.
(d) In no event shall the Commercial Operation Date occur beyond the Commercial Operation Date Deadline.
(e) The damages that Buyer ▇▇▇▇▇ would incur due to Seller’s failure to timely achieve a Key Milestone would be difficult or impossible to predict with certainty, and it is impractical or difficult to assess actual damages in those circumstances, but the Daily Delay Damages are a fair and reasonable calculation of such damages, and shall be Seller’s sole liability and obligation, and Buyers’ ▇▇▇▇▇’s sole right rights and remedyremedies, for Seller’s failure to achieve any Key Milestone by the Milestone Date therefor. Notwithstanding the foregoing, the payment of Daily Delay Damages shall not limit Buyer’s right to exercise any right or remedy available under this Agreement Agreement, or at law or in equity for (consistent with the terms of this Agreement) for: (i) any Default occurring concurrently with, before or after Seller’s delay in achievement of the applicable Key Milestone, Milestone or (ii) in connection with any termination for failure to achieve a Key Milestone by the Key Milestone Date therefor or including Commercial Operation by within 180 days of the Outside Guaranteed Commercial Operation Date, as may be extended by the Development Cure Period (for Commercial Operation up to the Commercial Operation Date Deadline at the latest); provided that the payment of Daily Delay Damages or other amounts drawn from the Development Security shall be taken into account when determining any damages due Buyer for such termination; provided further that in no event shall any damages, including Daily Delay Damages, owed in connection with such termination exceed the limitation of liability provided in Section 14.17(c).
Appears in 1 contract
Sources: Power Purchase Agreement
Milestone Schedule. (a) Attached as Appendix I is a milestone schedule Milestone schedule with deadlines for the development of the Facility through the Commercial Operation Date (each milestoneeach, a “Milestone” ”) and each date by which a Milestone is footnotes that set forth documents required to be completed, a “Milestone Date”). provided by Seller shall achieve to Buyer with respect to each Milestone by the Milestone Date therefor. Until the Commercial Operation Date, Seller shall provide Buyer with a report on a quarterly basis (until six (6) months prior to report setting forth the scheduled Commercial Operation Datestatus of each Milestone, at which time such reports including any slippage in any deadline. Seller shall be provided on a Monthly basis) that includes: (i) a description of the Site plan for the Facility, (ii) a description of any planned changes to the Facility or Site plan since the previously delivered report, (iii) a bar chart schedule showing progress to achieving the remaining Milestones, (iv) a chart showing the critical path schedule of major items and activities, (v) a summary of activities at the Facility during the previous Month, (vi) a forecast of activities during the then-current Month, (vii) a list of any issues that could impact Seller’s achievement of Milestones by the applicable Milestone Dates, and (viii) pictures, in sufficient quantity and of appropriate detail, documenting construction and startup progress with respect to the Facility. If Seller anticipates that it will not achieve a each Milestone by the applicable date specified therefor in such Milestone Date (as schedule, provided that such date may be extended pursuant to this Section 3.6), by Seller shall promptly prepare and deliver by providing to Buyer notice of such extension at least fifteen (15) days (or, in the event of a remedial action plan Force Majeure concerning which fifteen (“Remedial Action Plan”)15) days advance notice is not practicable, which shall set forth as soon as practicable) prior to such Milestone Date (1) the anticipated period of delayfor Force Majeure delays and delays caused by Buyer’s failure to perform its obligations under this Agreement, (2) the on a day for day basis for such delay, not more than three hundred sixty-five (3365) an outline of days in the commercially reasonable steps that Seller is taking to address the delay and to ensure that future Milestones, including the Guaranteed Commercial Operation Date, will be timely achieved, (4) a proposed revised date for achievement of the applicable Milestone and (5) such other information and in such detail as may be reasonably requested by Buyer. Except as set forth in Section 3.6(c), Seller shall not have any liability for failure to timely achieve a Milestone other than the obligation to submit a Remedial Action Plan; provided, however, that the foregoing shall not limit Buyer’s right to exercise any right or remedy available under this Agreement or at law or in equity for any other Default occurring concurrently with or before or after Seller’s delay in achievement of the applicable Milestone.
(b) Each Milestone Date (including the Outside Commercial Operation Date) may be extended, on a day-for-day basis aggregate to the extent Seller is actually, demonstrably and unavoidably delayed in achieving such Milestone its ability to timely achieve the Milestones as a result of (a) failure to obtain permits necessary for the construction and operation of the Facility due to Force Majeure; provided that the Outside Commercial Operation Date shall not be extended delays beyond June 30, 2017, for any reason whatsoever.
Seller’s reasonable control and/or (cb) If Seller fails to achieve any Key Milestone by the applicable Milestone Date, including a failure to achieve secure interconnection of the Commercial Operation Date by the Guaranteed Commercial Operation Date (as may be extended pursuant to Section 3.6(b)), Seller shall pay liquidated damages to Buyer in an amount equal to (i) the number of days between the Milestone Date and the date upon which such Key Milestone is achieved (or the Agreement is terminated by Buyer), multiplied by (ii) the applicable daily liquidated damage amount set forth for such Key Milestone in Appendix I (the “Daily Delay Damages”). For the avoidance of doubt, if multiple Key Milestones are missed, Seller shall pay Daily Delay Damages for each Key Milestone. If Seller fails to achieve any Key Milestone other than the Guaranteed Commercial Operation Date, Facility by the date that is one hundred eighty (180) days after before the Milestone Date for Commercial Operation due to delays beyond Seller’s reasonable control, and (3) on a day for day basis for not more than seven hundred thirty (730) days to the extent Seller is delayed in its ability to timely achieve the Milestones solely as a result of Seller’s inability to obtain Transmission Services that are sufficient to permit Seller to transmit the full output of the Facility to the Point of Delivery using, exclusively, NV Energy’s Transmission System (which services are enabled by the One Nevada Transmission Line) by the Milestone Date for Commercial Operation, due to no fault of Seller as shall be set forth in a notification provided by Seller to Buyer as such Key notification shall be modified by Seller to indicate any change in such inability to obtain such Transmission Services and which shall result in the Interim Operation Period taking effect as provided in Section 3.9. The date specified for each Milestone shall be the Milestone Date for achieving such Milestone, Buyer provided that, if and to the extent such date shall be extended as provided in this Section 3.6, the extended date shall be the Milestone Date for purposes of this Agreement. Notwithstanding anything herein to the contrary, Seller shall not be in default or otherwise have the right in its sole discretion and without penalty to
(1) terminate any liability under this Agreement for failing to meet a Default under Section 13.4Milestone Date, or (2) allow Seller to continue to pay other than the Daily Delay Damages to Buyer, during which time such Buyer shall not terminate the Agreement based on Seller’s failure to timely achieve such Key Milestone. If Seller achieves the Milestone Dates for Power Block Construction Start and Commercial Operation Date on or before to the Guaranteed Commercial Operation Dateextent provided in Section 3.7 of this Agreement, then so long as Seller provides to Buyer shall refund within ten (10) days of failing to Seller, without interest, meet any amounts previously paid to such Buyer as Daily Delay Damages for failure to achieve the Environmental Compliance Key Milestone and/or the Site Control Key Milestone by the respective Milestone Date therefor. If Seller fails a remedial action plan reasonably acceptable to achieve Commercial Operation by Buyer explaining the Outside Commercial Operation Date (as such date may be extended pursuant to Section 3.6(b)), Buyer shall have the right in its sole discretion and without penalty to terminate this Agreement for a Default under Section 13.4.
(d) The damages that Buyer would incur due to Seller’s failure to timely achieve a Key Milestone would be difficult or impossible to predict with certainty, and it is impractical or difficult to assess actual damages in those circumstances, but the Daily Delay Damages are a fair and reasonable calculation of such damages, and shall be Seller’s sole liability and obligation, and Buyers’ sole right and remedy, reasons for Seller’s failure to achieve any Key Milestone by the meet such Milestone Date therefor. Notwithstanding and the foregoing, the Daily Delay Damages shall not limit Buyer’s right steps that Seller will take to exercise any right or remedy available under this Agreement or at law or in equity for any Default occurring concurrently with, before or after Seller’s delay in achievement of the applicable Key Milestone, or in connection with any termination for failure ensure that Seller is able to achieve a Key Milestone by the Milestone Date therefor or Power Block Construction Start and Commercial Operation by the Outside Milestone Dates for Power Block Construction Start and Commercial Operation Dateset forth in Appendix I, as applicable, plus ninety (90) days in each case.
Appears in 1 contract
Sources: Power Purchase Agreement
Milestone Schedule. (a) Attached as Appendix I is a milestone schedule with deadlines of the milestones for the development of the Facility through the Commercial Operation Date (each milestone, including each Initial Development Milestone, a “Milestone” ”) and each date by which a the Milestone is to be completed, a “Milestone Date”)Dates associated therewith. Seller shall achieve each Milestone by the Milestone Date therefor. specified therefor.
(a) Until the Commercial Operation Date, Seller shall provide Buyer with a report report, which shall be provided on a quarterly basis (until the date which is six (6) months prior to
(b) If Seller fails to the scheduled Commercial Operation Date, at which time such reports shall be provided on a Monthly basisachieve any two (2) that includes: (i) a description of the Site plan for the Facility, (ii) a description of any planned changes to the Facility or Site plan since the previously delivered report, (iii) a bar chart schedule showing progress to achieving the remaining Milestones, (iv) a chart showing the critical path schedule of major items and activities, (v) a summary of activities at the Facility during the previous Month, (vi) a forecast of activities during the then-current Month, (vii) a list of any issues that could impact Seller’s achievement of consecutive Milestones by the applicable Milestone Dates, and (viii) pictures, in sufficient quantity and of appropriate detail, documenting construction and startup progress with respect to the Facility. If Seller anticipates that it will not achieve a Milestone by the applicable Milestone Date (as such date may be extended pursuant to this Section 3.6)Dates therefor, Seller shall promptly prepare and deliver immediately notify Buyer of such failure and, no more than ten (10) days following the failure to achieve the second consecutive Milestone, provide Buyer with a remedial written action plan detailing how Seller will cure such failure (such plan, a “Remedial Action Plan”). The proposed Remedial Action Plan must in all cases be acceptable to Buyer, which such acceptance not to be unreasonably withheld, delayed or conditioned. The Remedial Action Plan shall set forth (1) the anticipated period of delay, (2) the basis for such delay, (3) an outline specify in reasonable detail Seller’s analysis of the commercially reasonable steps causes of such missed Milestone Dates, the actions that Seller is taking plans to address take to correct such underperformance, and the delay time needed to complete such corrective actions. Seller shall complete any and all corrective action pursuant to ensure that future Milestones, including the Guaranteed Commercial Operation Date, will be timely achieved, (4) a proposed revised date for achievement provisions of the applicable Milestone and (5) such other information and in such detail Remedial Action Plan. Seller may supplement the Remedial Action Plan as may be reasonably requested by Buyer. Except as set forth in Section 3.6(c)required, and Seller shall not have complete any liability for failure to timely achieve a Milestone other than the obligation to submit a and all further corrective action in accordance with such supplemented Remedial Action Plan. Any such supplemented Remedial Action Plan must also be acceptable to Buyer, such acceptance not to be unreasonably withheld, delayed or conditioned. Any deviations from the approved Remedial Action Plan, including any supplements thereto, shall be subject to the reasonable approval of Buyer, such approval not to be unreasonably withheld, delayed or conditioned. The preparation and delivery of, and compliance with, any Remedial Action Plan shall be Seller’s sole liability and obligation, and Buyer’s sole right and remedy, for Seller’s failure to achieve any two (2) consecutive Milestones (other than a Key Milestone) by the Milestone Dates therefor; provided, however, however that the foregoing shall not limit Buyer’s right to (i) exercise any right or remedy available under this Agreement or at law or in equity for any other breach or Default occurring concurrently with or before with, before, or after Seller’s delay in achievement of achieving the applicable Milestone.
(b) Each Milestone Date (including the Outside Commercial Operation Date) may be extendedMilestones, on a day-for-day basis to the extent Seller is actually, demonstrably and unavoidably delayed in achieving such Milestone due to Force Majeure; provided that the Outside Commercial Operation Date shall not be extended beyond June 30, 2017, for any reason whatsoever.
(c) If Seller fails to achieve any Key Milestone by the applicable Milestone Date, including a failure to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date (as may be extended pursuant to Section 3.6(b)), Seller shall pay liquidated damages to Buyer in an amount equal to (i) the number of days between the Milestone Date and the date upon which such Key Milestone is achieved (or the Agreement is terminated by Buyer), multiplied by (ii) the applicable daily liquidated damage amount set forth for such Key Milestone in Appendix I (the “Daily Delay Damages”). For the avoidance of doubt, if multiple Key Milestones are missed, Seller shall pay Daily Delay Damages for each Key Milestone. If Seller fails to achieve any Key Milestone other than the Guaranteed Commercial Operation Date, by the date that is one hundred eighty (180) days after the Milestone Date for such Key Milestone, Buyer shall have the right in its sole discretion and without penalty to
(1) terminate this Agreement for a Default under Section 13.4, or (2) allow Seller to continue to pay the Daily Delay Damages to Buyer, during which time such Buyer shall not terminate the Agreement based on Seller’s failure to timely achieve such Key Milestone. If Seller achieves the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, then Buyer shall refund to Seller, without interest, any amounts previously paid to such Buyer as Daily Delay Damages for failure to achieve the Environmental Compliance Key Milestone and/or the Site Control Key Milestone by the respective Milestone Date therefor. If Seller fails to achieve Commercial Operation by the Outside Commercial Operation Date (as such date may be extended pursuant to Section 3.6(b)), Buyer shall have the right in its sole discretion and without penalty to terminate this Agreement for a Default under Section 13.4.
(d) The damages that Buyer would incur due to Seller’s failure to timely achieve a Key Milestone would be difficult or impossible to predict with certainty, and it is impractical or difficult to assess actual damages in those circumstances, but the Daily Delay Damages are a fair and reasonable calculation of such damages, and shall be Seller’s sole liability and obligation, and Buyers’ sole right and remedy, for Seller’s failure to achieve any Key Milestone by the Milestone Date therefor. Notwithstanding the foregoing, the Daily Delay Damages shall not limit Buyer’s right to exercise any right or remedy available under this Agreement or at law or in equity for any Default occurring concurrently with, before or after Seller’s delay in achievement of the applicable Key Milestone, or in connection with any termination for failure to achieve a Key Milestone by the Milestone Date therefor or Commercial Operation by the Outside Commercial Operation Date.or
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Sources: Power Sales Agreement