Resolution No 35-2021 - Ameresco Inc. Qualified Provider Approval Guaranteed Energy Savings Contract Morris

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Confidential & Proprietary Information of Ameresco, Inc. Page 16 of 54 SECTION 17 Privileged and Proprietary Information Ameresco’s systems, means, cost, and methodologies of evaluating, implementing, accomplishing and determining energy savings and the terms of the Agreement for this Project shall be considered privileged and proprietary information. Customer shall use the same level of effort to protect and safeguard such information as it employs to safeguard its own confidential information, provided, however, that Customer is a public entity which has very little information that is not open to the public. Customer shall not disclose such proprietary information without the express written consent of an officer of Ameresco unless required to do so by statute or regulation. When any request for disclosure of such information is made under the Indiana Access to Public Records Act (APRA) or any applicable freedom of information law, Customer shall provide prompt written notice to Ameresco such that Ameresco will have the opportunity to timely object under the APRA or other law should it desire to object to such disclosure of that information in whole or in part. In the event that Customer is required to make a filing with the Indiana Public Access Counselor or any other agency or governmental body, including a court of law, which includes such information, Customer shall notify Ameresco and cooperate with Ameresco in order to seek confidential treatment of such information included within any such filing or, if all such information cannot be protected from disclosure, to request that Customer be permitted to redact portions of such information, as Ameresco may designate, from that portion of said filing which is to be made available to the public. Ameresco shall defend and indemnify the City for the costs it incurs including attorney fees, for any administrative or judicial action in which the City must participate to preserve Ameresco’s privilege of proprietary or confidential information. SECTION 18 Severability If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect the other provisions of this Agreement, and all other provisions of this Agreement shall remain in full force and effect. SECTION 19 Assignments and Subcontracting (a)Ameresco may elect to use subcontractors in meeting its obligations hereunder. Nothing contained in this Agreement shall create any contractual relation between any subcontractor and Customer. (b)Customer shall not assign, transfer, or otherwise dispose of this Agreement, the ECM(s) or the Property, or any interest therein, or sublet or lend the ECM(s) or permit the ECM(s) to be used by anyone other than Customer and Customer’s employees without the prior express written consent of Ameresco; provided that Customer may, without obtaining the consent of Ameresco, assign its rights in the ECMs to any financial institution, lender or investor in connection with a leasing or financing arrangement for funding of the Contract Cost. If Customer transfers ownership or its interest in the Property without the prior written consent of Ameresco, this Agreement shall, at Ameresco’s option, terminate automatically. (c)Ameresco shall not assign this Agreement in whole or in part to any other party without first obtaining the consent of Customer, which consent shall not be unreasonably withheld; provided that, Ameresco may assign, without obtaining the consent of Customer, its rights and obligations under this Agreement in whole or in part to any affiliated or associated company of Ameresco and its rights for payments only under this Agreement to any financial institution, lender or investor in connection with a credit facility to which Ameresco is a party. SECTION 20 Waiver