CPNY Project. For avoidance of doubt, to the extent meeting the foregoing requirements,
examples of events that may constitute Force Majeure include:
acts of God, an act or threatened act of the public enemy, war (imminent, declared
or otherwise), blockade, accidents of navigation or breakdown or injury of
vessels, accidents to harbors, docks, canals or other assistances to, or adjuncts of,
shipping or navigation, perils of the sea, air crash, shipwreck, train wrecks or
other failures or delays of transportation, nuclear emergency, radioactive
contamination, cyber-attack, ionizing radiation, release of hazardous waste or
materials, sabotage, terrorist acts, invasion, insurrection, riot, non-site specific
industrial disturbance by a union or organized labor (including any non-site
specific strike or boycott), pandemics (and actions undertaken by governments in
response thereto), fire, flood, lightning, earthquake, hurricane, tornado, waves or
winds of extreme force, extreme accumulation of snow or ice, epidemic,
explosion or any similar cataclysmic occurrence, acts, inaction or restraints of a
governmental authority (excluding the Parties) which temporarily or permanently
prevent required performance under this Agreement.
Under no circumstances shall Force Majeure include (x) any occurrence or event that
merely increases the costs or causes an economic hardship to a Party, or (y) any occurrence or
event that was caused by or contributed to by the Party claiming the Force Majeure. In addition,
a delay or inability to perform attributable to a Party’s lack of preparation, a Party’s failure to
timely obtain and maintain all necessary approvals, a failure to satisfy contractual conditions or
commitments, or lack of or deficiency in funding or other resources shall each not constitute a
Force Majeure or be the basis for a claim of Force Majeure, except in each case if any such
failure is caused by an underlying Force Majeure.
(b) If either Party is unable, wholly or in part, by Force Majeure to perform
obligations under this Agreement, such performance shall be excused and suspended so long as
the circumstances that give rise to such inability exist or would exist if the Party claiming the
Force Majeure used commercially reasonable efforts to cure such circumstances,
but for no longer period. The Party whose performance is affected shall give prompt notice thereof; such
notice may be given orally or in writing but, if given orally, it shall be promptly confirmed in
writing, providing details regarding the nature, extent and expected duration of the Force
Majeure, its anticipated effect on the ability of such party to perform obligations under this
Agreement, and the estimated duration of any interruption in service or other adverse effects
resulting from such Force Majeure, and shall be updated or supplemented to keep the other Party
advised of the effect and remedial measures being undertaken to overcome the Force Majeure.
Such inability shall be promptly corrected to the extent it may be corrected through the exercise
of commercially reasonable due diligence. Neither Party shall be liable for any losses or damages
arising out of a suspension of performance that occurs because of Force Majeure.
(c) Each Party may terminate this Agreement in the event a Party’s inability to
perform its obligations, as described in Section 7.1(b), persists for more than twenty-four (24)
consecutive months. Any such termination shall be with no further obligation or liability to the
other Party other than that NYSERDA will Deliver to City NYGATS Account any Tier 4 RECs
for which City has made payment prior to termination.
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