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3-99 | EPC Template
10.3 Commercial Operation. “Commercial Operation” shall be deemed to have occurred
as of the first point in time after (i) Mechanical Completion of the Facility has occurred,
as determined by the Independent Engineer; (ii) completion of Acceptance Testing
pursuant to Section 11.2, or alternatively satisfaction of Contractor’s Acceptance Test
related obligations in Section 11.3 (including, if applicable, payment of liquidated
damages pursuant to Section 11.3); and (iii) when the Facility is used and useful for the
purpose of delivering electric energy to Owner (other than electric energy delivered
during Facility Start Up and Acceptance Testing). If the Owner disputes that
Commercial Operation has occurred, it shall provide written notice to that effect to
Contractor, specifying the basis for disputing Commercial Operation and the Parties in
dispute shall thereafter utilize the dispute resolution procedures in Article 12 to resolve
the dispute. Failure of the Owner to provide such written notice within ten (10) Business
Days after receipt of notice of Commercial Operation shall constitute waiver of the
Owner’s right to dispute that Commercial Operation has occurred.
10.4 Punch List. A list of the uncompleted items for the Project shall be established by
Contractor prior to Mechanical Completion (the “Punch List”). The Punch List may be
amended from time to time, upon written Agreement of the Parties, prior to Final
Completion. The Punch List shall include all deliverables through Final Completion.
The “Punch List Holdback Amount” shall be two times the aggregate of the value of the
Punch List items agreed to by the Parties, or determined by the Independent Engineer, if
the Parties cannot agree. The Punch List Holdback Amount shall be withheld from
payments due upon Mechanical Completion, and the agreed value of each Punch List
item shall be paid to Contractor upon completion of the Punch List item and any
remaining Punch List Holdback Amount shall be paid to Contractor upon completion of
all Punch List items.
10.5 Final Completion. “Final Completion” occurs after Commercial Operation has
occurred and any remaining Punch List items have been finished. Contractor will notify
Owner when it considers that Final Completion has occurred. If the Owner disputes that
Final Completion has occurred, it shall provide written notice to that effect to Contractor
specifying the basis for disputing Final Completion and the Parties in dispute shall
thereafter use the dispute resolution procedures in Article 12 to resolve the dispute.
Failure of the Owner to provide such written notice within 10 Business Days after the
initial notice from Contractor shall constitute waiver of the Owner’s rights to dispute that
Final Completion has occurred.
ARTICLE 11 - ACCEPTANCE TESTING; CAPACITY GUARANTEE;
COMPLETION GUARANTEE; WARRANTIES; LIMITATION OF LIABILITY
11.1 Acceptance Tests. Contractor will be responsible for coordinating the Acceptance
Tests of the Facility as more particularly set forth in Section 11.2 and Schedule III of this
Agreement (the “Acceptance Tests”). Such Acceptance Tests shall be conducted by one