GESC for Olive WTP Solar Proj No 124-050 - Ameresco

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Party to proceed with installation of any ECMs which are not part of the original Scope of Services or evidenced by execution of an amendment or a Change Order. (b) Should Ameresco encounter subsurface or latent physical conditions at the site which differ materially from those indicated in the Scope of Services or from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, Ameresco shall give written notice to Customer before any such condition is disturbed or further disturbed. Customer will promptly investigate and, if it is determined that the conditions materially differ from those which Ameresco should reasonably have been expected to discover or anticipate, Customer shall either (a) approve such changes in the Scope of Services as are necessary, with a corresponding adjustment in the Guaranteed Savings amount; or (b) abandon the Project and terminate this Agreement, provided that Customer has paid to Ameresco all amounts due as set forth in Section 4 (including, without Imitation, pro-rata portions thereof accrued under Subsections 4(b), 4d , (e) and Attachment I and pursuant to any Change Order). If such differing conditions cause an increase or decrease in Ameresco's cost or time of performance, and the Parties agree upon a change in the Scope of Services, the Parties shall negotiate an equitable adjustment to Ameresco's cost and/or time for performance, as the case may be and a Change Order shall be issued and executed by Customer to reflect such adjustment(s). (c) If at any time prior to Substantial Completion of an ECM, Ameresco determines that an ECM is not commercially viable, Ameresco may, at its option, remove such ECM from the Scope of Services and from the Property. In such event, Ameresco shall refund to Customer the portion of the Contract Cost attributable to such ECM and the Guaranteed Savings amount will be reduced by an amount equal to the portion of the Guaranteed Savings amount attributable to such ECM. (d) If Ameresco and Customer agree to an adjustment of the Contract Cost and the Project schedule established for the Scope of Services, such an agreement shall be effective immediately upon execution of a Change Order. SECTION 9 Warranties Ameresco hereby agrees as follows: (a) Ameresco warrants that the Work and all materials and equipment to be installed in the Project shall be free from defects in materials and workmanship arising from normal usage on an ECM by ECM basis for a period of one (1) year from the date of Substantial Completion of such ECM. Any manufacturers' warranties which exceed this one (1) year period shall be assigned to Customer to the extent allowed by the manufacturer. This section does not apply in any way to the Savings Guarantee. (b) EXCEPT AS PROVIDED IN THIS SECTION 9, AMERESCO MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO THE VALUE, DESIGN, AND CONDITION OR FITNESS FOR USE OR PARTICULAR PURPOSE AND MERCHANTABILITY, REGARDING THE WORK, THE ECM(s) OR THE EQUIPMENT. SECTION 10 Customer's Responsibilities (a) Operations: Customer shall operate all equipment installed hereunder in accordance with the manufacturer's recommendations and the manuals supplied to Customer by Ameresco. Confidential & Proprietary Information of Ameresco, Inc. Page 10 of 56