15.3
15.4
15.2.1 The Contract Documents establish Supplier’s Performance Guarantees associated with
15.2.2
15.2.3
the Equipment. If the Equipment, upon testing, initially or during the warranty period
fails to satisfy any aspect of such Performance Guarantees (provided the Equipment was
installed and commissioned under Supplier's supervision as provided as Technical
Services and according to Supplier's standards and provided further that such failure is
not due to abuse, improper modification or improper maintenance or operation by
persons other than Supplier or any reason specified in the General Conditions, or by
Force Majeure, then Supplier, at its own cost and expense, shall exercise good faith
efforts to correct the Equipment (through the repair of components, replacement of
components, or otherwise) in order to achieve such Performance Guarantees. If these
Performance Guarantees are still not achieved despite such efforts, Supplier shall pay
Purchaser an annual payment penalty pursuant to the following formula, which is based
on the current net metering price of 85 mils per KWH:
P= 085 x (KWH1 — KWH?)
where P = Annual Payment to City by Mavel ($}
KWH1 = Calculated average annual output based on Mavel's original guaranteed turbine
performance.
KWH2 = Calculated average annual output based on installed turbine performance as
determined by turbine testing and commissioning witnessed by the City and Mavel.
Said Annual Payment [P} shall not exceed 15% of the original contract price of
$1,271,700, and shall be continued for a period of three (3) years (net metering rate
life).
Average annual production for KWH1 and KWH2 shall be calculated on the basis of a
19.9 foot net head {as defined by IEC Publication #41). The City and Mavel shail agree
on an average energy model that will be used in determining KWH1 and KWH2.
Supplier will only be obligated to pay the liquidated damages outlined in Article 15.2.1
above if the cause of such performance shortfall is solely due to the Supplier and
Purchaser has complied with all material obligations within the Contract.
The maximum amount that Purchaser shall be entitled to recover for liquidated
damages for failure to meet Performance Guarantees as outlined above, is 100 percent
(100%) of the total Contract Price.
intentionally omitted
Consequential Damages
15.4.1
iN NO EVENT and regardless of the legal theory under which such damages or losses
may be claimed including negligence SHALL PURCHASER BE LIABLE TO SUPPLIER FOR:
(1} LOSS OF ANTICIPATED PROFITS OR LOSS OF REVENUE OR BUSINESS OPPORTUNITY,
OR COST OF OBTAINING OTHER MEANS FOR PERFORMING THE WORK, LOSS OF
FUTURE CONTRACTS, CLAIMS OF CUSTOMERS, COST OF MONEY, OR LOSS OF USE OF
CAPITAL; OR (2) EXCEPT TO THE EXTENT OF PURCHASER’S OBLIGATIONS TO INDEMNIFY
