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

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Section 24. 1. Generally. In case of dispute between the Parties, the Parties will attempt to negotiate a resolution. If a dispute remains unresolved more than thirty (30) calendar days after the commencement of negotiation, then the Parties shall pursue mediation. If any dispute remains unresolved more than sixty (60) calendar days after the commencement of mediation, then either Party may commence binding arbitration. No litigation will be commenced by either Party unless all of the foregoing steps have been pursued to completion, if and to the fullest extent allowed by law. Section 24.2. Arbitration. All claims and disputes between ESCO and the Owner arising out of, or relating to, this Contract, the breach thereof, or the work or services hereunder, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. The prevailing party in any such arbitration shall be awarded its reasonable attorneys' fees and costs, including expert witness expenses. The venue for any arbitration to enforce the provisions of this Contract shall be brought in the county where the work is performed. Section 24.3. Consolidation and Joinder. An arbitration pursuant through this provision may be joined with an arbitration involving the Owner, ESCO, their consultants, design professionals, other contractors, subcontractors, or material or equipment suppliers. The Owner's and ESCO's contracts with other contractors, subcontractors, design professionals, consultants, and material and equipment suppliers shall require such joinder. Section 24.4. Mediation. As a condition precedent to the hearing of any arbitration, ESCO and the Owner shall submit any and all disputes between them to non-binding mediation with the assistance of an experienced mediator. The parties shall each designate a representative with full settlement authority who will participate in the mediation, provided however that any settlement that requires approval of the Owner's governing body under its policies, shall be made subject to such approval, which the Owner shall seek to obtain at the soonest available meeting of the Owner's governing body. The parties shall bear equally all expenses, exclusive of attorneys' fees, associated with the mediation. The venue for any mediation to enforce the provisions of this Contract shall be brought the county where the work is performed. Section 24.5. Waiver and Release of Liability for Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR SIMILAR, DAMAGES OR LOSSES, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT OR TORT OR ANY OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SECTION 25. MISCELLANEOUS PROVISIONS Section 25.1 Nonappropriation of Funds. It is understood and agreed that if the Owner is a government entity then this Contract shall in no way or manner be construed so as to bind or obligate either beyond the term of any particular appropriation of funds by the State's Legislature as may exist from time to time. Notwithstanding any provision in this Contract to the contrary, the Owner reserves the right to terminate this Contract in whole or in part if, in its judgment, the Legislature fails, neglects, or refuses to appropriate sufficient funds as may be required for the ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 22