. If during any Month Buyer schedules any delivery of Energy into the Day-Ahead Market and the Controllable Cable is unavailable or otherwise fails to deliver all or any portion of such Contract Energy delivery, unless and to the extent such unavailability or failure arises from an Excused Outage as set forth in Section 5.9, if Buyer is required to fulfill its delivery contract with the NYISO by purchasing Energy from the Real-Time Market or is otherwise penalized by NYISO, Seller will pay to Buyer the net amount of any higher Real-Time Market prices for such Energy for all such instances during such Month plus any penalties Buyer is required to pay with respect to such Month.
. Buyer shall have the right, at its sole reasonable discretion, to suspend acceptance of Products from the Controllable Cable during any one of the following circumstances: (i) to prevent damage to Connecting Transmission Owner’s Electric System; (ii) to maintain electrical service to Buyer’s customers; (iii) a System Emergency, or (iv) if suspension is required for relocation, repair or maintenance of facilities or to facilitate restoration of line outages (each, a “Suspension”). A Suspension in the foregoing cases shall not be regarded as an Excused Outage. Buyer shall give advance notice regarding any such circumstances. Upon receipt of notice of a Suspension, Seller shall carry out the required action without undue delay. Where circumstances do not permit such advance notice, including circumstances in which Seller’s Controllable Cable is not staffed, or where Seller fails to carry out the required action, Buyer may invoke Suspension without notice. Except to the extent that a Suspension is the result of negligence or willful misconduct in Seller’s operation of the Controllable Cable, Seller shall not be responsible for payment of any cost incurred by Buyer during, or as a result of, such Suspension.
Restoration of Service
. Buyer and Seller shall endeavor to restore acceptance of deliveries of Energy and Ancillary Services as promptly as is reasonably possible in cases of outages or Suspensions.
Consequences of Buyer’s Suspension
. In the event of a Suspension, Buyer shall continue to make Monthly Capacity Payments during the Suspension and the Suspension will be deemed an Excused Outage, unless such Suspension results from Seller’s negligence or willful misconduct in the operation of one or both of the Projects.
INSURANCE Insurance Required
. Seller, at its sole cost and expense, shall acquire and maintain in full force and effect the types and amounts of insurance coverage described in Appendix 6.
. On or prior to commencement of construction of the Projects, Seller will provide Buyer with certificates of insurance evidencing the required coverage set forth above and in Appendix 6. Such certificates shall provide for a minimum of thirty (30) Days’ advance notice to Buyer of cancellation or material change in coverage. Failure by Seller to obtain the insurance coverage or certificates of insurance required by this Section 9.2 or Appendix 6 shall not relieve Seller of the insurance requirements set forth herein or therein or in any way relieve or limit Seller’s obligations and liabilities under any other provision of this Agreement.
Insurance Notice to Buyer
. Seller shall arrange to have its insurance carriers send Buyer a written notice of cancellation or termination of Seller’s insurance coverage required under this Article.
Notice to Contractors
. Seller shall give written notice of this Agreement to (a) each counterparty with which Seller enters any crossing agreement with respect to the submerged portions of the Controllable Cable and (b) each contractor performing any maintenance, repair or other services on or on the vicinity of the submerged portions of the Controllable Cable with which Seller enters any agreement or consent, and shall further require each such contractor to include in its principal subcontracts such notice, as follows:
[Seller] is a party to a Power Purchase Agreement dated ______ with the Long Island Power Authority (“LIPA”) for the exclusive use by LIPA of the transmission capability of the undersea cable described therein, and for the term of such Power Purchase Agreement LIPA is a beneficial owner and has an economic interest in such cable. Contractor acknowledges such rights and interests of LIPA for purposes of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927).
INFORMATION, ACCESS AND NONINTERFERENCE
. Buyer shall have the right to request information related to all phases of permitting, development, construction, operation and maintenance of the Projects at any time during the Term. Seller shall cooperate by providing the information requested within five (5) Business Days.
Access, Inspections, and Noninterference
. To the extent necessary to enable Buyer to verify Seller’s compliance with this Agreement, Buyer may have its duly authorized agents and representatives on the Controllable Cable site and Off-Island Generator site both before and after the Project Commercial Operation Date to inspect the construction, start-up, operation and maintenance of the Projects and to witness all Testing. Seller grants to Buyer (including Buyer’s duly authorized agents and representatives) for the Base Term and Extended Term, if applicable, a right to access the Projects at all reasonable hours, and, in an emergency, immediately upon request. In no event shall such access unreasonably interfere with Seller’s ownership, development, construction, operation or maintenance of the Projects. In connection with Buyer’s exercise of rights under this Section 10.2, while on Seller’s premises, Buyer’s personnel and duly authorized agents and representatives shall comply with all applicable health and safety rules or regulations of Seller, including, if required, acceptance of an escort. Prior to the Commercial Operation of the Projects, Seller agrees to provide Buyer (i) space at the Controllable Cable site and Off-Island Generator site for one (1) single wide construction trailer (or at Seller’s option in lieu of such trailer space, an office in Seller’s offices at the Controllable Cable site and Off-Island Generator site for Buyer’s representative), and (ii) utilities for such construction trailer, or such office space.
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