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hours will be billed at ESCO's then current engineering rates. Before initiating such work, ESCO <br />will notify the Owner in writing of the intent and relevant scope of the work. The Owner, within <br />forty-five (45) days thereafter, shall notify ESCO in writing with permission to proceed at current <br />rates or, alternatively and at no charge, stipulating that the Projected Energy Savings for the portion <br />of the Premises in question shall be used as the actual achieved savings for the purpose of meeting <br />the Energy Savings Guarantee. If ESCO does not receive written notice within the required forty- <br />five (45) days, the Projected Energy Savings for the portion of the Premises in question from the <br />date the Material Change begins will be used in the calculation of energy savings until such time <br />that ESCO approves the work, as long as the scope of work has not changed. Such work is in an <br />addition to the work performed under the Guaranteed Maximum Implementation Cost. <br />If required notice of Material Changes is not given or if the Owner fails to supply ESCO <br />with copies of its applicable monthly utility bills and/or data within the timeframe established, <br />energy savings calculated for the period will be equal to the Projected Energy Savings for the <br />period at the portion of the Premises affected by such oversight. If information or utility bills for <br />the period in question are supplied at a later date other than is permitted, the energy savings <br />calculated for the period will be modified only if such calculated energy savings for the period <br />exceeds the Projected Energy Savings for that period of time. <br />SECTION 16. REPRESENTATIONS AND WARRANTIES <br />Each party warrants and represents to the other that: <br />A. it has all requisite power, authority, licenses, permits, and franchises, <br />corporate or otherwise, to execute and deliver this Contract and perform its obligations <br />hereunder; <br />B. its execution, delivery, and performance of this Contract have been duly <br />authorized by, or are in accordance with, its organic instruments, and this Contract has been <br />duly executed and delivered for it by the signatories so authorized, and it constitutes its <br />legal, valid, and binding obligation; <br />C. its execution, delivery, and performance of this Contract will not breach or <br />violate, or constitute a default under any contract, lease or instrument to which it is a party <br />or by which it or its properties may be bound or affected; or <br />D. it has not received any notice, nor to the best of its knowledge is there <br />pending or threatened any notice, of any violation of any applicable laws, ordinances, <br />regulations, rules, decrees, awards, permits or orders which would materially and adversely <br />affect its ability to perform hereunder. <br />SECTION 17. ADDITIONAL REPRESENTATIONS OF THE PARTIES <br />Section 17.1. By Owner. The Owner, as applicable, hereby warrants and represent as <br />follows: <br />ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 14 <br />