4. Price and Terms
4.1 Contract Price
ESCO will submit a schedule of values to Customer for parts of the Work that ESCO shall
have performed on a form issued by the American Institute of Architects (“Schedule of
Values”). Customer shall approve and authorize release of construction financing from the
Escrow Agent/Trustee to the ESCO within thirty (30) days following Customer's receipt of a
Schedule of Values. Customer shall not be required to approve release of construction
financing for Work yet to be performed. In the event that the Customer disputes a portion of
a Schedule of Values, Customer shall make a timely authorization to release construction
financing in an amount equal to the undisputed part of the Schedule of Values.
Upon submittal of any schedule of values for payment, ESCO shall furnish signed lien
waivers from ESCO and any subcontractors or material suppliers that contributed to the
Work that is the subject of the schedule of values. With respect to such Work, the
authorized person executing each lien waiver shall voluntarily and with knowledge of that
contractor’s or supplier's legal rights, waive and release any rightthat it has or in the future
may have to claim a mechanic’s lien or any other lien rights, and waive and release all other
claims of any kind against (a) the real property where the Work is located; (b) the
improvements and other property located thereon; (c) Customer and, as applicable, its title
company and lender and their employees, officers, and agents; and(d) as applicable, the
surety or sureties of Customer. In addition, in each of its lien waivers, ESCO shall (i) certify
that it has paid all subcontractors, suppliers, and employees for all Work related to the
submitted schedule of values, and (ii) agree to indemnify and hold harmless Customer and,
as applicable, its lender and title company for all costs and expenses, including attomeys
fees, incurred as aresult of claims that any of the subcontractors, suppliers, or employees
have not been paid for such Work.
In the event that Customer disputes a Schedule of Values or a portion of the Schedule of
Values, Customer shall indicate the reason for the dispute in writing to ESCO within fourteen
(14) days of receiving the Schedule of Values and the parties will negotiate in good faith to
resolve the dispute prior to the expiration of the thirty (30) day period. If the parties cannot
resolve the dispute within such thirty (30) day period, Late Payment interest shall accrue
pursuant to section 4.02 hereof but such Late Payment interest shall be released to ESCO
only in the event that the dispute is eventually resolved in favor of ESCO in accordance with
Section 9.01’s Dispute Resolution procedure.
ESCO shall be responsible for paying all other taxes and tariffs of any sort related to the
Work. ESCO shall be responsible to pay for all labor, materials, equipment, tools,
construction, equipment and machinery, fuel, transportation and other facilities and services
necessary for the proper execution and completion of the Work.
Retainage will be held at 10% until progress is 50% complete, then reduced to 5% at 50%
completion and further reduced to 2% at substantial completion. The remaining contract
value will be released as a final payment upon Certification of Project Completion, completion
of all required training, completion of any outstanding punch-list, turnover of all final
paperwork such as warranties, guarantees, as-builts, O & M manuals, attic stock and
satisfaction of all document turnover requirements per the project specifications.
Following Final Acceptance, Customer may terminate this Contract without cause by giving
ESCO at least thirty (30) day’s written notice. The Customer shall pay ESCO for
8 ESCO Contract — Nashua Schools & EEI, Inc.
