What is the scope of the installer’s warranty? Does it cover components that are the subject of a manufacturer’s warranty? Should it include a performance guaranty?
The installer’s warranty should cover all matters pertaining to the design, construction and installation of the system (workmanship) and related site improvements. It should also cover all materials and components that are not subject to a manufacturer warranty. Finally, it should have a performance guaranty for the first few years of operation, with a carve out for the items covered by manufacturer warranties (generally panels, racking and inverters). As for manufacturer warranties, the most the installer should be responsible for is assisting the owner in enforcing those warranties, although that may be a more appropriate task for the operation and maintenance contractor.
Should the installer be entitled to a mandatory change order for unforeseen site issues discovered during construction? If not, what happens if there is an unforeseen site issue and the parties cannot agree on how to deal with it?
The installer must be entitled to a mandatory change order for unforeseen site issues discovered during construction. The contractor should be responsible for reasonable diligence, but if the issue could not be discovered with reasonable diligence the risk should be borne by the property owner. The parties should agree to a threshold cost of a change order for unforeseen site conditions which will trigger an owner termination right. If the cost of the change order is below the threshold, the owner must pay the increase, and if the cost exceeds the threshold, the owner has the option of paying the increase or terminating the agreement. If the agreement is terminated the contractor should be entitled to payment for work performed to the date of termination and demobilization costs.
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