Message-ID: <2408538.1075845950658.JavaMail.evans@thyme> Date: Thu, 2 Nov 2000 03:17:00 -0800 (PST) From: kay.mann@enron.com To: scott.healy@enron.com, stephen.plauche@enron.com Subject: Performanc stuff for you to read and comment on Mime-Version: 1.0 Content-Type: text/plain; charset=ANSI_X3.4-1968 Content-Transfer-Encoding: quoted-printable X-From: Kay Mann X-To: scott.healy@enron.com, Stephen Plauche X-cc: X-bcc: X-Folder: \Kay_Mann_June2001_3\Notes Folders\Sent X-Origin: MANN-K X-FileName: kmann.nsf ARTICLE X. PERFORMANCE GUARANTEES AND ACCEPTANCE =20 10.1 Performance Guarantees. Seller guarantees that each Unit will meet t= he=20 Performance Standards for Electrical Output, Efficiency, Water Consumption,= =20 Noise and Emissions as set forth in Section 10.2, when Performance Tests ar= e=20 conducted in accordance with the Performance Test Procedures. 10.2 Performance Standards. Each Unit shall meet Performance Standards as= =20 described in this Article and as set forth in the following table below in= =20 order to achieve Acceptance: =092MW Power Plants=092.4MW Power Plants=093.0 MW Power Plants Electrical Output, kW=092000 kW=092400 kW=09 Heat Rate (LVH)=0948%=0948%=09 Water Consumption=09600 gal/h=09620 gal/h=09 Sound level=0965 dB(A) at 100 feet=0965 dB(A) at 100 feet=09 Emissions=09=09=09 Nox=09<1 ppmv=09<1 ppmv=09 SOx=09<0.1 ppmv=09<0.1 ppmv=09 CO=09<20 ppmv=09<20 ppmv=09 VOC=09<20 ppmv=09<20 ppmv=09 Particulates=09<100 mg/m3=09<100 mg/m3=09 10.2.1 Heat Rate Guarantee. Seller guarantees that the Heat Rate as=20 measured for each of the Units=20 as demonstrated during the Performance Test, shall be __BTU/kWh. In the eve= nt=20 the Heat Rate exceeds the Minimum Heat Rate Guarantee, Seller shall take al= l=20 necessary actions to correct, retest the deficient Unit and cause the=20 deficient Unit to meet the Minimum Heat Rate Guarantee. Failure to meet th= e=20 Heat Rate Guarantee shall prevent Acceptance, unless Purchaser explicitly= =20 waives this guarantee in writing. =20 10.3.2 Electrical Output Guarantee. Seller guarantees that the Electrica= l=20 Output of each Unit as demonstrated in the most recent Performance Test=20 shall be equal or greater than 2000 kW (for a 2.0 MW Unit), 2400 kW (for a= =20 2.4 MW) Unit, and 3000kW (for a 3.0 MW Unit). [Is this a net number? Where= =20 is it measured?] =20 10.3.3 Emissions Guarantee. Seller guarantees that the emissions of the= =20 [Unit] for the above listed categories when the [Unit] is operated=20 [conditions?] 10.3.4 Water Consumption Guarantee.=20 10.3.5 [Sound Guarantee. Seller guarantees that the near field average=20 A-weighted sound pressure levels of the [Unit? Facility?] shall not exceed= =20 65dB(a) 9referenced to 20 micropascals) when measured during the Performanc= e=20 Test at one and a half (1.5) meters above the ground level and one (1) mete= r=20 from the surface of the Equipment.] 10.3.6 Reliability. 10.4 Remedy for Failures to Meet Performance Guarantees. Except as=20 specified in Section 10._] the failure to achieve the Performance Guarantee= s=20 by the Acceptance Deadline [to be defined] shall constitute a default under= =20 this Agreement, and Purchaser shall have the remedies specified in Article = []. 10.5 Testing. 10.5.1 Notice of Installation Completion; Conducting Tests. Seller shall= =20 deliver Notice to Purchaser that a Unit has achieved Installation Completio= n=20 so that the Unit is ready to be tested. Within [fourteen (14) days] of=20 receipt of this Notice, Purchaser shall perform the Performance Tests in=20 accordance with the Performance Test Procedure; however, Purchaser shall no= t=20 be required to conduct Performance Tests prior to [] days from the Delivery= =20 Date, or date of actual delivery, whichever is latest. Purchaser shall give= =20 Seller five (5) days notice of the time of the Performance Tests. Seller=20 shall be present or to have a representative present at the Performance=20 Tests, and shall provide technical advice during the tests; however,=20 Purchaser may at its option conduct the test without Seller, assuming notic= e=20 was properly given in accordance with this section. 10.5.2 Test Results. Performance Tests shall be conducted on a unit-by-un= it=20 basis. Upon the completion of each Performance Test Purchaser will issue a= =20 Performance Test Certificate setting forth the results achieved during such= =20 test. In the case of multiple Performance Tests on a Unit, performance sha= ll=20 be measured by the most recent Performance Test. 10.5.3 Costs of Retests. If one or more additional Acceptance Tests are= =20 required doe to the failure of a Unit to pass its Acceptance Test, Seller= =20 will bear the additional costs (if any) incurred by Purchaser [in excess of= =20 those costs normally associated with operating the Unit]. Such additional= =20 costs may include, but not be limited to, cost of testing, instrumentation,= =20 fuel, consumable spare parts, and additional personnel required to conduct= =20 the tests. 10.6 Acceptance. Upon the successful completion of the Performance Test= =20 for a Unit, Seller shall submit a Performance Test Certificate to Purchaser= =20 indicating that a Unit has achieved the Performance Standards and it ready= =20 for Acceptance. Purchaser shall within ten (10) days of receipt of such= =20 Performance Test Certificate, either sign such certificate acknowledging=20 concurrence or reject such certificate specifically stating the reasons for= =20 such rejection. Acceptance for each Unit (and its associated Equipment) sha= ll=20 occur upon the issuance of the Performance Test Certificate by Purchaser as= a=20 result of the Unit having met the Performance Guarantees. Acceptance of th= e=20 each Unit to be installed in a Facility shall occur when all of the followi= ng=20 have occurred:=20 (a) the issuance of a Performance Test Certificate by Purchaser as a result= =20 of a Performance Test indicating that the final Unit has met the Performanc= e=20 Standards; (b) all completion of training and the delivery of O & M Manuals and speci= al=20 tools required hereunder shall have occurred; (c) Seller has delivered to Purchaser a waiver of liens in form as shown in= =20 Exhibit-S that have been or could have been placed upon the Equipment and= =20 that there are no outstanding claims of Seller or any Vendor with respect t= o=20 the Equipment for that particular Facility; (d) all of the Units in the Facility have achieved Installation Completion.= =20 [and there are no punch list items remaining to be completed.] 10.7 Obligation to Improve Performance. If the Performance Test should=20 indicate that a Unit has met the Specific Performance Guarantees but not th= e=20 Guaranteed Performance Criteria, then for a period of ninety (90) days=20 following the Performance Test Seller shall have the obligation to use=20 reasonable efforts to improve performance so that the Guaranteed Performan= ce=20 Criteria are met. Such efforts shall be at Seller=01,s sole cost and risk.= =20 Performance Tests shall be conducted in accordance with this Article. =20 10.8 Reduced Purchase Amount for Failing to Meet Guaranteed Performance= =20 Levels. Should the Performance Test of a Unit demonstrate that the Unit ha= s=20 met the Performance Standards except for the Electrical Output Performance= =20 Standard, the Purchase Amount related to that Unit shall be reduced by the= =20 percent by which the Unit fails to meet the Power Output/kW Performance=20 Standard, so long as the Unit has achieved ninety percent of the guaranteed= =20 level. Seller shall within 30 days refund any prior payment received for th= e=20 Unit in excess of the reduced Purchase Amount.