Common use of Technical Disputes Clause in Contracts

Technical Disputes. If such Dispute arises primarily from technical issues in respect of the operation and/or maintenance of Purchaser’s Facility or if the Parties agree to submit a Dispute to an Independent Engineer pursuant to this Section 13.3.2, the Parties shall, within ten (10) Business Days following the expiration of Party Representative Negotiations, appoint an independent and unaffiliated third party, reasonably acceptable to both Parties, who has nationally recognized expertise in the area of dispute and that has not: (a) provided technical, financial or engineering assistance to a Party or any of its Affiliates, of a material nature within the thirty-six (36) months immediately preceding the date of the Notice of Dispute; or (b) earned revenue from a Party or any of its Affiliates that exceed five percent (5%) of the Independent Engineer’s annual review in any of the five (5) calendar years preceding the date of the Notice of Dispute (the “Independent Engineer”). If the Parties are unable to agree on an Independent Engineer within such ten (10) Business Day period, then each of the Seller and Purchaser respectively shall within a further ten (10) Business Days give notice to the other Party of its Independent Engineer and the Independent Engineers selected by the Parties shall as soon as possible thereafter, appoint a third Independent Engineer who shall act as the Independent Engineer. Alternatively, the Parties may agree at any time during the Term as to the identity of the Independent Engineer(s) to which disputes submitted for resolution pursuant to this Section 13.3.2 shall be submitted for determination. The dispute described in the applicable notice shall be submitted to the Independent Engineer selected in the manner herein provided for determination, and the decision of the Independent Engineer shall be final and binding on the Parties.

Technical Disputes. If a Notice of Dispute relates to a Dispute that is technical in nature (a “Technical Dispute”), such Dispute arises primarily from technical issues in respect of the operation and/or maintenance of Purchaser’s Facility or if the Parties agree to submit a Dispute shall be submitted to an Independent Engineer Expert for expedited dispute resolution pursuant to the following provisions of this Section 13.3.2, 23.2(a). The Parties shall negotiate in good faith to select an Independent Expert. If the Parties shall, cannot agree within ten (10) Business Days following the expiration of Party Representative Negotiations, appoint an independent and unaffiliated third party, reasonably acceptable to both Parties, who has nationally recognized expertise in the area of dispute and that has not: (a) provided technical, financial or engineering assistance to a Party or any of its Affiliates, of a material nature within the thirty-six (36) months immediately preceding the date of the Notice of Dispute; or (b) earned revenue from a Party or any of its Affiliates that exceed five percent (5%) of the Independent Engineer’s annual review in any of the five (5) calendar years preceding Business Days then the date of Party initiating the Notice of Dispute dispute (the “Independent EngineerDispute Initiator”). If the Parties are unable to agree on an Independent Engineer within such ten (10) Business Day period, then each of the Seller and Purchaser respectively shall within a further ten (10) Business Days give send notice to the other Party proposing two potential independent engineers set forth in the definition of its “Independent Engineer Expert”. The other Party shall then have two (2) Business Days after receipt of such notice to select an Independent Expert from such two (2) potential independent engineers identified in such notice. If the other Party does not make a selection within such two (2)-Business Day period, the Dispute Initiator shall select an Independent Expert from such two (2) potential independent engineers identified in such notice. The Parties shall formalize their positions regarding the dispute in writing within four (4) Days of the submission of the Technical Dispute and submit such positions to the Independent Expert. The Parties and the Independent Engineers selected Expert shall meet at the Site within five (5) Business Days of the Independent Expert’s receipt of the materials referenced in the immediately preceding sentence and the Independent Expert shall issue a binding ruling that both Parties will obey within five (5) Business Days thereof. The Party that will pay for the Independent Expert and all costs related thereto shall be the losing Party, as determined by the Independent Expert. Any Dispute other than a Technical Dispute that is not settled to the mutual satisfaction of the Parties within the applicable notice or cure periods provided in this Agreement or pursuant to Section 23.1, may proceed to court pursuant to Section 23.3 unless the Parties mutually agree in writing to resolve such Dispute by arbitration as provided herein. If the Parties elect to pursue arbitration, upon the expiration of the thirty (30) Day negotiation period set forth in Section 23.1, either Party may submit such Dispute to arbitration by providing a written demand for arbitration to the other Party, and such arbitration shall be conducted in accordance with the Rules of the AAA for the Resolution of Construction Industry Disputes (the “Arbitration Rules”) in effect on the date that the submitting Party gives notice of its demand for arbitration under this Section 23.2. The arbitration shall be conducted at a location as agreed by the Parties, or if the Parties cannot so agree, the arbitration shall be conducted in Salt Lake County, Utah. Unless otherwise agreed by the Parties, discovery shall be conducted in accordance with the Federal Rules of Civil Procedure and the Parties shall as soon as possible thereafter, appoint a third Independent Engineer who shall act as be entitled to submit expert testimony or written documentation in the Independent Engineer. Alternatively, the Parties may agree at any time during the Term as to the identity of the Independent Engineer(s) to which disputes submitted for resolution pursuant to this Section 13.3.2 shall be submitted for determinationarbitration proceeding. The dispute described in the applicable notice shall be submitted to the Independent Engineer selected in the manner herein provided for determination, and the decision of the Independent Engineer arbitrator(s) shall be final and binding upon Owner and Contractor and shall be set forth in a reasoned opinion, and any award may be enforced by Owner or Contractor, as applicable, in any court of competent jurisdiction. Any award of the arbitrator(s) shall include interest from the date of any damages incurred for breach of this Agreement, and from the date of the award until paid in full, at a rate equal to the lesser of (i) the rate published by the Wall Street Journal as the “prime rate” on the PartiesBusiness Day preceding the date on which such interest begins to accrue plus two percent (2%) and (ii) the maximum rate allowed under Applicable Law. Each of Owner and Contractor shall bear its own cost of preparing and presenting its case; however, the prevailing party in such arbitration shall be awarded its reasonable attorney’s fees, expert fees, expenses and costs incurred in connection with the Dispute. The fees and expenses of the arbitrator(s), and other similar expenses, shall initially be shared equally by Owner and Contractor, subject to reimbursement of such arbitration costs and attorney’s fees and costs to the prevailing party. The arbitrator(s) shall be instructed to establish procedures such that a decision can be rendered within ninety (90) Days after the appointment of the arbitrator(s). The arbitration may include, by consolidation or joinder or in any other manner, any additional persons or entities if (1) such persons or entities are materially involved in a common issue of law or fact in dispute and (2) such persons or entities are either contractually bound to arbitrate or otherwise consent to arbitration.

Technical Disputes. If a Notice of Dispute relates to a Dispute that is technical in nature (a “Technical Dispute”), such Dispute arises primarily from technical issues in respect of the operation and/or maintenance of Purchaser’s Facility or if the Parties agree to submit a Dispute shall be submitted to an Independent Engineer Expert for expedited dispute resolution pursuant to the following provisions of this Section 13.3.2, 28.2(a). The Parties shall negotiate in good faith to select an Independent Expert. If the Parties shall, cannot agree within ten (10) Business Days following the expiration of Party Representative Negotiations, appoint an independent and unaffiliated third party, reasonably acceptable to both Parties, who has nationally recognized expertise in the area of dispute and that has not: (a) provided technical, financial or engineering assistance to a Party or any of its Affiliates, of a material nature within the thirty-six (36) months immediately preceding the date of the Notice of Dispute; or (b) earned revenue from a Party or any of its Affiliates that exceed five percent (5%) of the Independent Engineer’s annual review in any of the five (5) calendar years preceding Business Days then the date of Party initiating the Notice of Dispute dispute (the “Independent EngineerDispute Initiator”). If the Parties are unable to agree on an Independent Engineer within such ten (10) Business Day period, then each of the Seller and Purchaser respectively shall within a further ten (10) Business Days give send notice to the other Party proposing two potential independent engineers set forth in the definition of its “Independent Engineer Expert”. The other Party shall then have two (2) Business Days after receipt of such notice to select an Independent Expert from such two (2) potential independent engineers identified in such notice. If the other Party does not make a selection within such two (2)-Business Day period, the Dispute Initiator shall select an Independent Expert from such two (2) potential independent engineers identified in such notice. The Parties shall formalize their positions regarding the dispute in writing within four (4) Days of the submission of the Technical Dispute and submit such positions to the Independent Expert. The Parties and the Independent Engineers selected Expert shall meet at the Site within five (5) Business Days of the Independent Expert’s receipt of the materials referenced in the immediately preceding sentence and the Independent Expert shall issue a binding ruling that both Parties will obey within five (5) Business Days thereof. The Party that will pay for the Independent Expert and all costs related thereto shall be the losing Party, as determined by the Independent Expert. Any Dispute other than a Technical Dispute that is not settled to the mutual satisfaction of the Parties within the applicable notice or cure periods provided in this Agreement or pursuant to Section 28.1, may proceed to court pursuant to Section 28.3 unless the Parties mutually agree in writing to resolve such Dispute by arbitration as provided herein. If the Parties elect to pursue arbitration, upon the expiration of the thirty (30) Day negotiation period set forth in Section 28.1, either Party may submit such Dispute to arbitration by providing a written demand for arbitration to the other Party, and such arbitration shall be conducted in accordance with the Rules of the AAA for the Resolution of Construction Industry Disputes (the “Arbitration Rules”) in effect on the date that the submitting Party gives notice of its demand for arbitration under this Section 28.2. The arbitration shall be conducted at a location as agreed by the Parties, or if the Parties cannot so agree, the arbitration shall be conducted in Salt Lake County, Utah. Unless otherwise agreed by the Parties, discovery shall be conducted in accordance with the Federal Rules of Civil Procedure and the Parties shall as soon as possible thereafter, appoint a third Independent Engineer who shall act as be entitled to submit expert testimony or written documentation in the Independent Engineer. Alternatively, the Parties may agree at any time during the Term as to the identity of the Independent Engineer(s) to which disputes submitted for resolution pursuant to this Section 13.3.2 shall be submitted for determinationarbitration proceeding. The dispute described in the applicable notice shall be submitted to the Independent Engineer selected in the manner herein provided for determination, and the decision of the Independent Engineer arbitrator(s) shall be final and binding upon Owner and Contractor and shall be set forth in a reasoned opinion, and any award may be enforced by Owner or Contractor, as applicable, in any court of competent jurisdiction. Any award of the arbitrator(s) shall include interest from the date of any damages incurred for breach of this Agreement, and from the date of the award until paid in full, at a rate equal to the lesser of (i) the rate published by the Wall Street Journal as the “prime rate” on the PartiesBusiness Day preceding the date on which such interest begins to accrue plus two percent (2%) and (ii) the maximum rate allowed under Applicable Law. Each of Owner and Contractor shall bear its own cost of preparing and presenting its case; however, the prevailing party in such arbitration shall be awarded its reasonable attorney’s fees, expert fees, expenses and costs incurred in connection with the Dispute. The fees and expenses of the arbitrator(s), and other similar expenses, shall initially be shared equally by Owner and Contractor, subject to reimbursement of such arbitration costs and attorney’s fees and costs to the prevailing party. The arbitrator(s) shall be instructed to establish procedures such that a decision can be rendered within ninety (90) Days after the appointment of the arbitrator(s). The arbitration may include, by consolidation or joinder or in any other manner, any additional persons or entities if (1) such persons or entities are materially involved in a common issue of law or fact in dispute and (2) such persons or entities are either contractually bound to arbitrate or otherwise consent to arbitration.