and disposal plans and document before disposal begins and document actual disposal to
Customer immediately after disposal. ESCO will be responsible for disposal of asbestos
containing building material in the boiler rooms related to the demolition of existing boilers
and piping. ESCO will use licensed asbestos abatement contractors and 3" party testing.
Excluded Materials and Activities
The Customer recognizes that in connection with the Work, installation and/or service or
maintenance of equipment and/or systems at the Customer's facilities, ESCO may
encounter, but is not responsible for, any Work outside of the boiler rooms relating to (i)
asbestos, materials containing asbestos, or the existence, use, detection, removal,
containment or treatment thereof, or (ii) mold, materials containing mold, or the
existence, use, detection, removal, containment or treatmentthereof, or (iii) pollutants,
hazardous wastes, hazardous materials, contaminants (collectively "Hazardous
Materials"), or the storage, handling, use, transportation, treatment, or the disposal,
discharge, leakage, detection, removal, or containment thereof.
The materials and activities listed in the foregoing sentence are hereinafter referred to as
"Excluded Materials and Activities". The Customer agrees that if ESCO’s performance of
any Work under this Contract involves Excluded Materials and Activities, upon receipt of any
and all appropriate funding and approval, the Customer will perform or arrange for the
performance of such Work and will bear the sole risk and responsibility therefore. In the
event ESCO discovers Hazardous or Excluded Materials, ESCO will immediately cease
Work, remove all ESCO personnel or subcontractors from the site, and notify the Customer.
The Customer will be responsible to handle such Materials at the Customer's expense.
ESCO will undertake no further Work at the facility except as authorized by the Customer in
writing. Notwithstanding anything in this Contract to the contrary, any such event of
discovery or remediation by the Customer will not constitute a default by the Customer.
ESCO will be solely responsible for any hazardous or other materials, including without
limitation those listed in this paragraph, thatit may bring to the site.
5.7 Subcontracting andAssignments
1) ESCO may elect to use subcontractors in meeting its obligations hereunder.
Customer shall approve all subcontractors and outside professionals in
advance which approval shall not be unreasonably withheld or delayed.
ESCO shall be responsible for the conduct, acts and omissions, whether
intentional or unintentional, of its subcontractors, employees, agents, invitees
or suppliers. ESCO agrees to bind each of its subcontractors to the terms of
ESCO’s obligations under Sections 5.01 - 5.06, 5.08, 5.09, 5.14- 5.16, 8.01 -
8.07, 9.03, 9.04, 9.06 and 9.10 of this Contract. Nothing in this Contract shall
create any contractual relationship between any subcontractor, employee,
agent, invitee or supplier and the Customer.
5.8 Delays
If ESCO is delayed in the commencement or completion of any part of the Work due to
events beyond ESCO’s control and without the fault or negligence of ESCO, including but
not limited to fire, flood, extended labor disputes, unusual delays in deliveries, unavoidable
casualties, abnormal adverse weather, war, and acts of God, or due to Customer's actions
13 ESCO Contract — Nashua Schools & EEI, Inc.
