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1- Either Party may, at its discretion, delay termination of the Agreement due to an Event of <br /> Default by the other Party. Such delay shall not be construed as a waiver of the right to <br /> terminate at a later time for such Event of Default. <br /> 2. Acceptance of payments by either Party from the other Party after an Event of Default or <br /> other failure of the other Party to perform shall not be construed as waiver by the first <br /> Party of its rights to terminate the Agreement for such Event of Default of failure. <br /> 3. The rights and remedies of County and Ameresco specified in this Agreement are not <br /> exclusive of one another. <br /> 4_ Notwithstanding the provisions of Article XX.A and C (County's Right to Terminate), <br /> County may not terminate this Agreement with respect to a default under Article XX.A(i) <br /> (for failure to meet Project Milestones) if and for so long as Ameresco pays County Lost <br /> Revenues. "Lost Revenues" means an amount equal to the compensation County <br /> would have received under Article XVII (Compensation) had Ameresco achieved the <br /> Project Milestones during the period County otherwise has a right to terminate this <br /> Agreement. For purposes of calculating such compensation, the revenue Ameresco <br /> would have received for sale of electric energy under the Power Sales Agreement shall <br /> be based on the assumption of electric energy sales of 63.4 MWH per day, such <br /> electrical generation being the estimated sales of electricity from the 1000 cfm LFG at 58 <br /> percent methane as identified in the Request for Proposal. <br /> 5. (v) In the event this Agreement is terminated due an Event of Default under Article <br /> XX.A(1), (2), (5), (10) or(12) (County's Right to Terminate) or Article XX.13 (1), (3), (4), or <br /> (7) (Ameresco's Right to Terminate), such termination shall be the sole remedy, with no <br /> liability of either Party. <br /> XXI OPTION TO PURCHASE PLANT FOLLOWING TERMINATION <br /> A. If this Agreement is terminated for reasons other than the default by County, then <br /> County shall, subject to the approval of any Project lenders, each in their sole discretion <br /> have the option to purchase Ameresco's interest in the Plant at Fair Market Value. <br /> County may exercise this option upon ninety (90) days advance written notice to <br /> Ameresco and after payment of both Fair Market Value and any other amounts then <br /> owed by County to Ameresco. Upon exercise of this option, Ameresco shall transfer its <br /> interest in the Site and the Plant to County. <br /> XXII LIMITATION OF LIABILITY <br /> A. For breach of a provision for which a remedy is provided in this Agreement, the liability <br /> of the defaulting Party shall be limited as set forth in such provision. In this case, all <br /> other damages or remedies are hereby waived. <br /> R. if no remedy or measure of damages is expressly provided, then the liability of the <br /> defaulting Party shall be limited to direct damages only. In this case, all other damages <br /> and remedies are waived. <br /> LFG Purchase Agreement 23 <br /> Foothill Sanitary Landfill <br /> Ameresco San Joaquin LLC/San Joaquin County <br /> SW-1013035-R5 <br />