Common use of Owner Remedies upon O&M Contractor Event of Default Clause in Contracts

Owner Remedies upon O&M Contractor Event of Default. (i) Upon the occurrence and during the continuation of an O&M Contractor Event of Default, in addition to any or all other remedies available at law or at equity, all of which shall be cumulative, Owner may terminate this Agreement upon ten (10) days’ written notice to O&M Contractor. If any termination for cause by Owner pursuant to this Section 9.1(b) is ultimately determined to have been wrongful, then such termination shall be deemed a termination for an Owner Event of Default pursuant to Section 9.2(b), and O&M Contractor’s sole remedy shall be the receipt of the amounts set forth in Section 9.2(b). (ii) If Owner terminates this Agreement pursuant to this Section 9.1(b), O&M Contractor shall cooperate with Owner and its agents and representatives in the turnover of the Project to the new operator and, prior to the effective date of termination, O&M Contractor shall provide the new operator reasonable access to the Project to facilitate the orderly transition of responsibilities from O&M Contractor to the new operator. Until the effective date of termination, O&M Contractor shall continue to operate the Project in compliance with the terms of this Agreement, during which time O&M Contractor and the new operator shall prepare for the transition of responsibilities from O&M Contractor to the new operator. (iii) If Owner terminates this Agreement pursuant to this Section 9.1(b), upon Owner’s request, O&M Contractor (A) shall withdraw from the Site, (B) shall assist Owner in preparing an inventory of all equipment located on the Site, in storage or in transit, (C) shall assign to Owner (or to any replacement contractor) such of O&M Contractor’s subcontracts (including warranties), purchase orders, and Permits as Owner may request, and (D) shall deliver and make available to Owner all information, Project performance data, drawings, specifications documents, patents, and licenses of O&M Contractor (whether or not such information, drawings, specifications documents, patents, and licenses are complete) and any proprietary components related to the Project reasonably necessary to permit Owner to operate and maintain the Project, and in connection therewith O&M Contractor authorizes Owner and its agents to use such information in operating and maintaining the Project. Further, O&M Contractor shall reimburse Owner a proportionate amount of the Fixed Fee that would have covered any period of time post-termination. Notwithstanding the foregoing, O&M Contractor shall not be required to license or otherwise make available to Owner the proprietary software used by O&M Contractor in connection with operating the Project; provided, however, that O&M Contractor shall cooperate with Owner to facilitate the transfer of the Project monitoring system to a replacement service provider. O&M Contractor and Owner shall negotiate in good faith terms and conditions for a license for Owner’s continued use of such software. O&M Contractor shall remove all materials, equipment, tools, and instruments used by and any debris or waste materials generated by O&M Contractor in the performance of the Services as Owner may direct. O&M Contractor shall execute all documents and take all other reasonable steps requested by Owner that may be required to assign to and vest in Owner all rights, benefits, interests and title in connection with such contracts or obligations.

Owner Remedies upon O&M Contractor Event of Default. (i) Upon the occurrence and during the continuation of an O&M Contractor Event of Default, in addition to any or all other remedies available at law or at equity, all of which shall be cumulative, Owner may terminate this Agreement upon ten (10) days’ written notice to O&M Contractor. If any termination for cause by Owner pursuant to this Section 9.1(b) is ultimately determined to have been wrongful, then such termination shall be deemed a termination for an Owner Event of Default pursuant to Section 9.2(b), and O&M Contractor’s sole remedy shall be the receipt of the amounts set forth in Section 9.2(b). (ii) If Owner terminates this Agreement pursuant to this Section 9.1(b), O&M Contractor shall cooperate with Owner and its agents and representatives in the turnover of the Project to the new operator and, prior to the effective date of termination, O&M Contractor shall provide the new operator reasonable access to the Project to facilitate the orderly transition of responsibilities from the O&M Contractor to the new operator. Until the effective date of termination, O&M Contractor shall continue to operate the Project in compliance with the terms of this Agreement, during which time O&M Contractor and the new operator shall prepare for the transition of responsibilities from the O&M Contractor to the new operator. (iii) If Owner terminates this Agreement pursuant to this Section 9.1(b), upon Owner’s request, O&M Contractor (A) shall withdraw from the Site, (B) shall assist Owner in preparing an inventory of all equipment located on the Site, in storage or in transit, (C) shall assign to Owner (or to any replacement contractor) such of O&M Contractor’s subcontracts (including warranties), purchase orders, and Permits as Owner may request, and (D) shall deliver and make available to Owner all information, Project performance data, drawings, specifications documents, patents, and licenses of O&M Contractor (whether or not such information, drawings, specifications documents, patents, and licenses are complete) and any proprietary components related to the Project reasonably necessary to permit Owner to operate and maintain the Project, and in connection therewith O&M Contractor authorizes Owner and its agents to use such information in operating and maintaining the Project. Further, O&M Contractor shall reimburse Owner a proportionate amount of the Fixed Fee that would have covered any period of time post-termination. Notwithstanding the foregoing, O&M Contractor shall not be required to license or otherwise make available to Owner the proprietary software used by O&M Contractor in connection with operating the Project; provided, however, that O&M Contractor shall cooperate with Owner to facilitate the transfer of the Project monitoring system to a replacement service provider. O&M Contractor and Owner shall negotiate in good faith terms and conditions for a license for Owner’s continued use of such software. O&M Contractor shall remove all materials, equipment, tools, and instruments used by and any debris or waste materials generated by O&M Contractor in the performance of the Services as Owner may direct. O&M Contractor shall execute all documents and take all other reasonable steps requested by Owner that may be required to assign to and vest in Owner all rights, benefits, interests and title in connection with such contracts or obligations.