APPENDIX 1 EXAMPLE CLAUSES

Part I - Performance Testing and Guarantee Regime

1 TESTING

Tests and Inspections

1.1 The Contractor must, at its own expense, carry out at the place of manufacture and/or on the Site all tests and/or inspections of the Equipment and any part of the Works as specified in this Contract or as required by any applicable Laws, and as necessary to ensure the Facility operates safely and reliably under the conditions specified in the Schedule of Scope of Work and the Schedule of Tests. [Appendix 1 should specify all the categories of tests other than the Tests (example: test at manufacturers plant, test on site, functional test etc.)]

1.2 The Contractor must also comply with any other requirements of the Owner in relation to testing and inspection.

1.3 The Owner and the Lenders? Representative are entitled to attend any test and/or inspection by its appointed duly authorised and designated inspector.

1.4 Whenever the Contractor is ready to carry out any test and/or inspection, the Contractor must give a reasonable advance notice to the Owner of the test and/or inspection and of the place and time. The Contractor must obtain from any relevant third party or manufacturer any necessary permission or consent to enable the Owner?s inspector and the Lenders? Representative to attend the test and/or inspection.

1.5 The Contractor must provide the Owner?s Representative with a certified report of the results of any test and/or inspection within 5 days of the completion of that test or inspection.

1.6 If the Owner or the Lenders? Representative fails to attend the test and/or inspection, or if it is agreed between the parties that the Owner or the Lenders? Representative will not attend, then the Contractor may proceed with the test and/or inspection in the absence of the Owner?s inspector and provide the Owner and the Lenders? Representative with a certified report of the results.

1.7 The Owner may require the Contractor to carry out any test and/or inspection not described in this Contract. The Contractor?s extra costs necessarily incurred, which do not include head office or corporate overheads, profit or loss of profit, in the carrying out of the test and/or inspection will be added to the Contract Price only if the test shows that the relevant Works conform with the requirements of the Contract, but otherwise all costs will be borne by the Contractor.

1.8 If any Equipment or any part of the Works fails to pass any test and/or inspection, the Contractor must either rectify to the Owner?s satisfaction or replace such Equipment or part of the Works and must repeat the test and/or inspection upon giving a notice under GC 1.4.

1.9 The Contractor must afford the Owner and the Lenders? Representative access at any time to any place where the Equipment is being manufactured or the Works are being performed in order to inspect the progress and the manner of manufacture or construction, provided that the Owner gives the Contractor reasonable prior notice.

1.10 The Contractor agrees that neither the execution of a test and/or inspection of Equipment or any part of the Works, nor the attendance by either or both the Owner and the Lenders? Representative nor the issue of any test report pursuant to GC 1.5 releases the Contractor from any other responsibilities under this Contract.

1.11 No part of the Works are to be covered up on the Site without carrying out any test and/or inspection required under this Contract and the Contractor must give reasonable notice to the Owner whenever any part of the Works are ready or about to be ready for test and/or inspection.

1.12 The Contractor must uncover any part of the Works or make openings in or through the same as the Owner may from time to time require at the Site and must reinstate and make good that part.

1.13 If any part of the Works have been covered up at the Site after compliance with the requirement of GC 1.12 and are found to be performed in accordance with the Contract, the Contractor?s extra costs, which do not include head office or corporate overheads, profit or loss of profit, necessarily incurred in uncovering, making openings in or through, reinstating and making good the same will be added to the Contract Price.

Performance Tests Procedures and Guidelines

1.14 The relevant Performance Tests must be conducted by the Contractor after Commissioning to ascertain whether the Facility can achieve Completion and after Completion to ascertain whether the Facility can meet the Performance Guarantees.

1.15 All Performance Tests must be conducted in a professional, timely, safe and environmentally responsible manner and in accordance with the Schedule of Scope of Work and the Schedule of Tests, all other terms and conditions of this Contract, applicable standards, Laws, Government Approvals and must be accomplished at no additional cost or expense to the Owner.

1.16 The Facility must not be operated during any Performance Test in excess of:

  1. the limits allowed by any manufacturer to maintain its warranty;
  2. the limits imposed by the Law and Government Approvals applicable standards; and
  3. the limits stated in the Schedule of Tests.

1.17 The Contractor agrees that the Owner and the Lenders? Representative will monitor the conduct of the Performance Testing to ensure compliance with the terms and conditions of this Contract.

1.18 The Contractor agrees that an inspection pursuant to GC 1.17 by the Owner and/or the Lenders? Representative does not release the Contractor from any other responsibilities under this Contract, including meeting the Performance Guarantees.

1.19 If a Performance Test is interrupted or terminated, for any reason, that Performance Test must be restarted from the beginning, unless otherwise approved by the Owner or the Lenders? Representative.

1.20 The Owner or the Contractor is entitled to order the cessation of any Performance Test if:

  1. damage to the Works, the Facility or other property or personal injury; or
  2. breach of the conditions specified in the relevant environmental Laws or Government Approvals, is likely to result from continuation.

1.21 If the Contractor fails to pass a Performance Test (or any repetition in the event of prior failure) or if a Performance Test is stopped before its completion, that Performance Test must, subject to 24 hours prior notice having been given by the Contractor to the Owner and the Lenders? Representative, be repeated as soon as practicable. All appropriate adjustments and modifications are to be made by the Contractor with all reasonable speed and at its own expense before the repetition of any Performance Test.

1.22 The results of the Performance Tests must be presented in a written report, produced by the Contractor and delivered to the Owner and the Lenders? Representative within 5 days of the completion of the Tests. Those results will be evaluated by the Owner and the Lenders? Representative. In evaluation of the results, no additional allowance will be made for measurement tolerances over and above those specified in the applicable ISO test standard.

Sale of electricity during the Performance Tests

1.23 The Contractor acknowledges and agrees that:

  1. the Owner is entitled to all energy, revenues and other benefits, including all Renewable Energy Certificates under the REC Act, carbon credits and all other "green" renewable energy credits, that may be generated or derived from the Facility during the Performance Tests or otherwise; and
  2. nothing in this Contract imposes any restrictions on the Owner from selling any electricity generated during the Performance Tests.

2 MECHANICAL COMPLETION, PRECOMMISSIONING, COMMISSIONING AND TESTS ON COMPLETION

2.1 Mechanical completion

  1. As soon as the Facility, in the opinion of the Contractor, reaches the stage of Mechanical Completion the Contractor must give a notice to the Owner.
  2. The Owner?s Representative must, promptly, and no later than 5 days after receipt of the Contractor?s notice under GC 22.1(a), either issue a Certificate of Mechanical Completion stating that the Facility has reached Mechanical Completion or notify the Contractor of any defects and/or deficiencies.
  3. If the Owner?s Representative notifies the Contractor of any defects and/or deficiencies, the Contractor must then correct those defects and/or deficiencies and the procedures described in GCs 2.1(a) and (b) must be repeated until the Owner issues a Certificate of Mechanical Completion.

Precommissioning

2.2 The Contractor must comply with the Owner?s requirements and procedures in relation to Precommissioning as set out in the Schedule of Scope of Work.

2.3 As soon as all works in respect of Precommissioning are completed and, in the opinion of the Contractor, the Facility is ready for Commissioning, the Contractor must give notice to the Owner.

Commissioning

2.4 Commissioning of the Facility or any part must be commenced by the Contractor at a time agreed between the Contractor?s Representative and the Owner after achieving Mechanical Completion and completing Precommissioning.

Tests on Completion

2.5

  1. After Commissioning when the Contractor is satisfied that all the requirements for Completion (other than the passing of the Tests on Completion) have been satisfied the Contractor must give notice to the Owner that the Facility or that part is ready for the Tests on Completion.
  2. The Owner must, as soon as reasonably practicable, after receipt of a notice under GC 2.5(a), issue a notice to the Contractor specifying the date for commencement of those Tests on Completion not already identified in the Program and the Schedule of Tests.

3 COMPLETION, TESTS AFTER COMPLETION AND FINAL COMPLETION

Completion

3.1

  1. As soon as the Facility, in the opinion of the Contractor, reaches the stage of Completion the Contractor must give a notice to the Owner.
  2. The Owner?s Representative must, promptly, and no later than 5 days after receipt of the Contractor?s notice under GC 3.1(a), either issue a Certificate of completion stating that the Facility has reached Completion or notify the Contractor of any defects and/or deficiencies.
  3. If the Owner?s Representative notifies the Contractor of any defects and/or deficiencies, the Contractor must then correct those defects and/ or deficiencies and the procedures described in GCs 3.1(a) and (b) must be repeated until the Owner issues a Certificate of Completion.
  4. Despite any other provision of this Contract, no partial or entire use or occupancy of the Site, the Works or the Facility by the Owner, whether during the Tests on Completion or otherwise, in any way constitutes an acknowledgment by the Owner that Completion has occurred, nor does it operate to release the Contractor from any of its warranties, obligations or liabilities under this Contract.
  5. Upon the issue of the Certificate of Completion, the Contractor must handover care, custody and control of the Facility to the Owner.

Tests after Completion

3.2

  1. Upon the issue of the Certificate of Completion the Contractor must carry out the Tests after Completion in accordance with GCs 3.3 to 3.5 and the Schedule of Tests to meet the Performance Guarantees;

Guaranteed Power Curve Test

3.3 The Contractor must carry out a Guaranteed Power Curve Test:

  1. immediately after the issue of the Certificate of Completion in accordance with Clause 3.4(a);
  2. subsequently up to the expiry of the term of the O&M deed, at any time as instructed by the Owner in accordance with Clause 3.4(b); and
  3. 12 months prior to the end of the term of the O&M Deed in accordance with Clause 3.4(c), on all the WTGs in order to verify the Guaranteed Power Curve.

Methodology

3.3

  1. The Contractor must perform the Power Curve Test immediately after the issue of the Certificate of Completion in accordance with the methodology set out in the Schedule of Tests.
  2. If the measurement resulting from performance of the Guarantee Power Curve Test under GC 3.4(a)(i) determines that the average Guaranteed Power Curve is equal to or greater than [95%], the security provided under GC [#] will be reduced to 5% of the Contract Price.
  3. If the measurement resulting from performance of the Guaranteed Power Curve Test under GC 3.4(a)(i) determines that the average Guaranteed Power Curve is less than [95]%, GC 27.2(b) will apply and the security provided under GC 8.2 will only be reduced to 5% of the Contract Price when the Guaranteed Power Curve is equal to or greater than [95]%.
  4. The Performance Liquidated Damages payable pursuant to GC 27.2(b) must be calculated from the date of issue of the Certificate of Completion until the Contractor establishes by a subsequent Guaranteed Power Curve or IEC Power Curve Test, as the case may be, that the Guaranteed Power Curve is more than [95]%.
  1. The Owner has the right to perform further measurements using the Guaranteed Power Curve Test at any time after the completion of the first Guaranteed Power Curve Test under GC 3.4(a) up to the expiry of the term of the O&M Deed if the Scada data evidences a deficiency in the Guaranteed Power Curve of less than 95% occurring over 20 consecutive days.
  2. If the measurement resulting from performance of the Guaranteed Power Curve Test under GC 3.4(b)(i) determines that the average Guaranteed Power Curve is less than 95%, GC 27.2(b) will apply.
  3. The Performance Liquidated Damages payable pursuant to GC 27.2(a) must be calculated retrospectively from the time at which the Guaranteed Power Curve, according to Scada data, was less than [95]% and where this point cannot be established, from the date when the last VMP Scada Test or IEC Power Curve Test, as the case may be, was performed which proved the Guaranteed Power Curve was equal to or greater than [95]%.
  1. The Contractor must carry out a Guaranteed Power Curve Test 12 months prior to the expiry of the term of the O&M Deed.
  2. If the measurement resulting from performance of the Guaranteed Power Curve Test under Clause 3.4(c) determines that the average Guaranteed Power Curve is less than [95]%, GC 27.3(b) will apply.
  3. The Performance Liquidated Damages payable pursuant to GC 27.2(a) shall be calculated retrospectively from the time at which the Guaranteed Power Curve, according to Scada data, was less than [95]% and where this point cannot be established, from the date when the last Guaranteed Power Curve Test or IEC Power Curve Test, as the case may be, was performed which proved the Guaranteed Power Curve was equal to or greater than 95%.
  4. If the Contractor performs an IEC Power Curve Test in the 12 months prior to the expiry of the term of the O&M Deed, that sample test will be deemed to be representative of the entire Facility. The parties agree that the results of the IEC Power Curve Test will be final and binding, GC 27.2 shall apply and no further IEC Power Curve Test or VMP Power Curve will be carried out.
  5. Subject to Clause 3.4(c)(iv), if the Contractor is unable to increase the Power Curve so that the Guaranteed Power Curve is equal to or greater than 95% prior to the expiry of the term of the O&M Deed, GC 27.2(c) will apply.

IEC Power Curve Test

3.5

  1. An IEC Power Curve Test will be performed if the Contractor elects to perform an IEC Power Curve Test pursuant to GC 27.3(b)(iii) or if either party disputes the results of the Guaranteed Power Curve Test carried out under Clauses 3.4(a), (b) or (c).
  2. The IEC Power Curve Test may be performed at up to 3 WTG locations on the Site. The locations must be selected from WTGs which represent an average of the performance of all WTGs as assessed from the scada data collected from the issue of the Certificate of Completion to the time of the IEC Power Curve Test or as otherwise agreed by the Owner.

  3. While performing the first IEC Power Curve Test, the Contractor must perform an additional VMP Scada Test concurrently with the IEC Power Curve Test and the Correlation Factor will be used for the performance of all subsequent VMP Scada Tests.
  4. The costs of the IEC Power Curve Test must be borne by the Contractor if the Contractor elects to perform an IEC Power Curve Test pursuant to Clause 27.3(b)(iii) or by the party electing to perform the test, together with all indirect costs incurred as a result of the test including any loss of production of electricity.

Final Completion

3.6

  1. As soon as the Facility, in the opinion of the Contractor, reaches the stage of Final Completion the Contractor must give a notice to the Owner.
  2. The Owner?s Representative must, promptly, and no later than 5 days after receipt of the Contractor?s notice under GC 3.6(a), either issue a Certificate of Final Completion stating that the Facility has reached Final Completion or notify the Contractor of any defects and/or deficiencies.
  3. If the Owner?s Representative notifies the Contractor of any defects and/or deficiencies, the Contractor must then correct those defects and/ or deficiencies and the procedures described in GCs 3.6(a) and (b) must be repeated until the Owner issues a Certificate of Final Completion.
  4. Despite any other provision of this Contract, no partial or entire use or occupancy of the Site, the Works or the Facility by the Owner, whether during the Tests after Completion or otherwise, in any way constitutes an acknowledgment by the Owner that Final Completion has occurred, nor does it operate to release the Contractor from any of its warranties, obligations or liabilities under this Contract including the satisfactory performance of its obligations during the Defects Liability Period, the carrying out of the Tests after Completion and meeting the Performance Guarantees.

Part II – Extension of Time Regime

  1. The Contractor must immediately give notice to the Project Company of all incidents and/or events of whatsoever nature affecting or likely to affect the progress of the Works.
  2. Within 15 days after an event has first arisen the Contractor must give a further notice to the Project Company which must include:
    1. the material circumstances of the event including the cause or causes;
    2. the nature and extent of any delay;
    3. the corrective action already undertaken or to be undertaken;
    4. the affect on the critical path noted on the Program;
    5. the period, if any, by which in its opinion the Date for Commercial Operation should be extended; and
    6. a statement that it is a notice pursuant to thisGC [ ].2.
  1. Where an event has a continuing effect or where the Contractor is unable to determine whether the effect of an event will actually cause delay to the progress of the Works so that it is not practicable for the Contractor to give notice in accordance with GC [ ].2, a statement to that effect with reasons together with interim written particulars (including details of the likely consequences of the event on progress of the Works and an estimate of the likelihood or likely extent of the delay) must be submitted in place of the notice required under GC [ ].2. The Contractor must then submit to the Project Company, at intervals of 30 days, further interim written particulars until the actual delay caused (if any) is ascertainable, whereupon the Contractor must as soon as practicable but in any event within 30 days give a final notice to the Project Company including the particulars set out in GC [ ].2.
  2. The Project Company must, within 30 days of receipt of the notice in GC [ ].2 or the final notice in GC [ ].3 (as the case may be), issue a notice notifying the Contractor?s Representative of its determination as to the period, if any, by which the Date for Commercial Operation is to be extended.

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