7. Obligations of the Parties
7.1 Qbligations of ESCO
ESCO acknowedges and agrees that ESCO’s obligations hereunder are in the capacity of
providing professional services for the purposes described in the Preamble to this Contract
and in said capacity ESCO is expected to provide energy, water and operational auditing,
engineering, design and monitoring services, construction management including general
contracting as necessary, and other related services as solicited in the RFP and as may
normally be incidental to these types of professional services. ESCO acknowedges and
agrees that any other functions, including, butnot limited to, manufacturer’s representative,
dealer or distributor of equipment, materials or commodity specified herein or as
subcontractor, or any ownership interest in whole or in part, or financial affiliation with a
company that performs such other function shall constitute a conflict of interest which shall
constitute a material breach of this Contract unless 1) fully disclosed in ESCO’s Response
to the RFP, and 2) accepted by the Customer under terms which are specified in the Scope
of Work. ESCO acknowedges and agrees that this paragraph applies to all its officers and
employees.
The following events or conditions shall, without limitation, constitute a breach by ESCO
and shall give the Customer the right, without an election of remedies, to proceed pursuant
to Section 9.01 and/or terminate this Contract by delivery of written notice declaring
termination, upon which event ESCO shall be liable to the Customer for any and all
damages sustained by the Customer:
1) Any attempt by ESCO to increase the Contract price for reasons other than
those related to changes in the Work pursuant to Section 5.03;
2) Any failure by ESCO to provide annual monitoring reports pursuant to Section
6.02 provided that such failure continues for ten (10) days after notice from
Customer;
3) Any failure by ESCO to make payments pursuant to the Performance
Guarantee provided that such failure continues for three (3) business days
after notice from Customer;
4) Any representation or warranty furnished by ESCO in ESCO’s Response to the
RFP, the Scope of Work or this Contract which is false or misleading in
any material respect wnen made;
5) Any state, county or federal license, authorization, waiver, permit, qualificationor
certification by statute, ordinance, law or regulation to be held by ESCO to
provide the goods or services required by this Contract is denied, revoked,
debarred, excluded, terminated, suspended, lapsed or not renewed;
6) The filing of bankruptcy by ESCO or by ESCO’s creditors, an involuntary
assignment for the benefit of creditors, or the liquidation of ESCO;
7) Any failure by ESCO to perform or comply with any other material term or
condition of this Contract, including breach of any covenant containedherein,
provided that such failure continues for thirty (30) days after written notice to
ESCO demanding that such failure be cured or, if cure cannot be effected in
22 ESCO Contract — Nashua Schools & EEI, Inc.
