2023-03-14-minutes-solid-waste-and-maintenance

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which shall include all costs and expenses reasonably incurred, including attorney's fees. Election of one (1) remedy is not a waiver of other available remedies. Without limiting the foregoing, in the event ESCO defaults in the completion of all or any portion of the acquisition, construction or installation of the Equipment, in accordance with the Schedule F (Construction and Installation Schedule) or the other provisions of this Contract, the Owner may (i) commence or complete all or any portion of the acquisition, construction and/or installation in any commercially reasonable manner or (ii) take all steps necessary to cause the acquisition, construction and/or installation, or applicable portion thereof, to come into compliance with Schedule F (Construction and Installation Schedule), including, without limitation, hiring contractors to perform overtime work and additional days of work as necessary to meet the time frames set forth therein. In such event, the Owner shall have the right to seek reimbursement from ESCO and may offset any expenses incurred against amounts due ESCO without liability for any costs incurred by ESCO, its agents, contractors, subcontractors or employees for any work performed by the Owner subsequent to the date of default, provided that the amounts are reasonable, defined as the cost of the work if performed by ESCO plus 15%. SECTION 22. CONDITIONS BEYOND CONTROL OF THE PARTIES If a party ("performing party") is delayed in the performance of any of its obligations under this Contract due to acts of God, fire, labor disputes, unusual delays in deliveries, unavoidable casualties, insurrections or riots, unforeseen or excessive code determinations by the authority having jurisdiction, pandemic, cyberattack, or other events beyond its control (other than the failure to pay money or the failure to perform this Contract due to the lack of money), this Contract shall at the other party's option (i) remain in effect but said performing party's obligations shall be suspended until the said events shall have ended; or, (ii) be terminated upon ten (10) days' notice to the performing party, in which event neither party shall have any further liability to the other. Understanding that no contingencies have been made for such acts, after the events have ended the parties shall enter negotiations to resolve any additional burdens arising from said acts. The time for performance, and the GMIC, in the case of ESCO, shall be equitably adjusted. This provision excludes economic hardship, and insufficiency of funds on the part of the ESCO. SECTION 23. ASSIGNMENT Section 23.1. Assignment by ESCO. ESCO acknowledges that the Owner is induced to enter into this Contract by, among other things, the professional qualifications of ESCO. ESCO agrees that neither this Contract nor any right or obligations hereunder may be assigned in whole or in part to another firm, except for an affiliate of ESCO, without the prior written approval of the Owner. Notwithstanding the provisions of this paragraph, ESCO shall remain jointly and severally liable with its assignees(s), or transferee(s) for all of its obligations under this Contract unless otherwise agreed to in writing by the Owner. Section 23.2. Assignment by Owner. The Owner may transfer or assign this Contract and its rights and obligations herein to a successor or purchaser of all or any portion of the Premises subject to this Contract or an interest therein. SECTION 24. DISPUTES & DAMAGES ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 21