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2018_08-28_PWETCpacket
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2018_08-28_PWETCpacket
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8/31/2018 9:09:33 AM
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Commission/Committee
Commission/Authority Name
Public Works Commission
Commission/Committee - Document Type
Agenda/Packet
Commission/Committee - Meeting Date
8/28/2018
Commission/Committee - Meeting Type
Regular
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13.4.2 If an Operator Event of Default occurs, (i) Subscriber shall have the right to <br />terminate this Agreement upon thirty (30) days prior written notice to Operator, and <br />(ii) Operator shall be liable to Subscriber for actual, direct Damages. <br />13.4.3 Subscriber shall be liable to Operator for any actual, direct Damages, <br />including but not limited to lost revenues for the sale of Energy caused by a <br />Subscriber Event of Default, as defined herein under Section 13.4.4. <br />13.4.4 Operator may exercise any remedy it may have at law or equity, including <br />recovering from Subscriber all resulting damages, which damages may include, <br />but not be limited to, projected payments for Energy generated for the remainder <br />of the Term of this Agreement, any loss or damage to Operator due to lost or <br />recaptured Environmental Attributes or Environmental Incentives, including, <br />without limitation, lost revenue from the sale of Environmental Attributes to third <br />parties (including any damages due to the early termination of any agreement for <br />such sale), and the recapture of the investment tax credit under Section 48 of the <br />Internal Revenue Code, and accelerated depreciation for the System; and all <br />other amounts of any nature due under this Agreement (collectively, "the <br />Damages"). <br />13.4.5 The non -defaulting Party has a duty to make commercially reasonable <br />efforts to mitigate its damages. <br />XIV. REMEDIES; LIMITATION OF LIABILITY; INDEMNIFICATION <br />14.1 Subject to the limitations set forth in this Agreement, the Parties each <br />reserve and shall have all rights and remedies available to it at law or in equity with <br />respect to the performance or non-performance of the other Parties hereto under <br />this Agreement. Under no circumstances shall the total liability for either Party due <br />to its breach of this Agreement exceed One Million Dollars ($1,000,000). In <br />addition, nothing in this Agreement is intended to be, nor shall be, construed to <br />constitute a waiver or modification of any limitations of liability under Minnesota <br />Statutes Chapter 466. <br />14.2 EXCEPT AS EXPRESSLY ALLOWED HEREIN, NO PARTY SHALL BE <br />LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT OR PUNITIVE <br />DAMAGES OF ANY CHARACTER, RESULTING FROM, ARISING OUT OF, IN <br />CONNECTION WITH OR IN ANY WAY INCIDENT TO ANY ACT OR OMISSION <br />OF A PARTY RELATED TO THE PROVISIONS OF THIS AGREEMENT, <br />IRRESPECTIVE OF WHETHER CLAIMS OR ACTIONS FOR SUCH DAMAGES <br />ARE BASED UPON CONTRACT, WARRANTY, NEGLIGENCE, STRICT <br />LIABILITY OR ANY OTHER THEORY AT LAW OR EQUITY. <br />14.3 Each Party shall defend, indemnify and hold harmless the other Party and <br />the directors, officers, shareholders, partners, members, agents and employees of <br />such other Party, and the respective affiliates of each thereof, from and against all <br />loss, damage, expense liability and other claims, including court costs and <br />10 <br />
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