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3. Term of Contract. This Contract shall be effective as of the Effective Date
executed and shall terminate three (3) years from the Effective Date or after the optional
Van has been purchased and delivered, whichever is later, unless earlier terminated or
extended as provided for herein. Provided, however, that in no event shall the term of this
Contract be for longer than 3 years.

4. Purchase Price for Electric Hybrid Low Floor Cutaway Vans. The total
price of the Electric Hybrid Low Floor Cutaway Vans, as further summarized in Exhibit A
of this Contract, shall not exceed $170,850 for each of the Vans, without City's prior
written approval.

5. Invoicing and Payment. Seller shall invoice the City for the full price of each
Electric Hybrid Low Floor Cutaway Van within thirty (30) calendar days following the
date of final acceptance for such Van. For purposes of this Contract, "date of final
acceptance" shall mean the date each Electric Hybrid Low Floor Cutaway Van is
inspected and accepted pursuant to Section 7 of this Contract. No finance charges shall be
paid by the City. The City shall pay Seller within thirty (30) calendar days of receipt of an
undisputed invoice or payment will be made ina reasonable length of time after approval
and receipt of funds from FTA or other funding sources, where applicable. There will be no
prepayments or down payments made on this procurement.

A. Invoicing. Seller’s invoices must include the City’s Purchase Order number,
be billed and payable in U.S. dollars and paid by payment methods agreed to by both the
Seller and City. All requests for payment shall be mailed to: Accounts Payable, City of
Nashua, 229 Main St., Nashua, New Hampshire 03060.

6. Delivery of Goods. Unless otherwise specified in writing by the City, Seller
shall deliver the Electric Hybrid Low Floor Cutaway Vans to City at City's offices located
at 11 Riverside Street Nashua, New Hampshire with shipping and insurance charges
included in the price. Shipments shall be accepted Monday through Friday, 8:00 AM to
4:00 PM, excluding holidays. Seller is required to notify the City’s purchasing agent in
advance if delivery cannot be made during these hours.

Delivery must be at a mutually agreed upon time, no later than September 30",
2021. The Electric Hybrid Low Floor Cutaway Vans shall be delivered to City by Seller
free of any liens and encumbrances.

7. Inspection and Acceptance. The Electric Hybrid Low Floor Cutaway Vans
shall be received by City subject to City's reasonable inspection, testing, approval, and
acceptance. If the Electric Hybrid Low Floor Cutaway Van is rejected by the City as
nonconforming, City may return the Electric Hybrid Low Floor Cutaway Vans to Seller at
Seller's risk and expense, and the Electric Hybrid Low Floor Cutaway Vans shall not be
replaced or repaired by Seller without written authorization from City. If City does not
provide written acceptance or a list of deficiencies within the thirty (30) calendar days

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Board of Aldermen — 9/12/17 Page 33

MOTION BY ALDERMAN SIEGEL TO FURTHER AMEND BY SENTENCE TO THE END OF THE NEXT TO
THE LAST PARAGRAPH WHICH STATES: THIS RESOLUTION SHALL EXPIRE TWO YEARS FROM ITS
EFFECTIVE DATE IN THE EVENT THAT THE $4 MILLION IN PRIVATE FUNDS HAVE NOT BEEN RAISED
PRIOR TO THAT DATE.

ON THE QUESTION

Alderman Siegel

I’m just thinking about the two years. That seems like an awfully long period of time, but I'll leave it as is.
Alderman Clemons

I’m going to support the amendment. | think it is reasonable to put in a timeframe, an expectation. It also sets
a goal which | think is a good thing. One of the pieces of legislation later tonight is establishing a performing
arts center steering committee. That committee will be appointed by the Mayor and confirmed by the Board of
Aldermen to oversee the strategic plan, overseeing the construction, but obviously before that, coming up with
a strategic plan on how to run it and also fundraising. The mechanism for how the fundraising will take place is
there. It’s going to be through this steering committee. | support this amendment. | think it is a good
amendment.

Alderman Schoneman

| think generally speaking fundraisers are professionals. When | had those conversations with the theatres,
they had professionals on staff that raised funds. That’s their job. | think if we’re going to be raising the
money, it should be professional theatre people, professional business people who know about the theatre
business, who can hire if they need to. We will also have to think about where the money is going to sit. Are
we just collecting pledges or are we collecting funds? Then what happens if it’s not $4 million? Do we give it
back? What do we do?

Alderman Clemons

| think the city, through the steering committee or one of us as an alderman, can set up a trust account so we
can account for that type of money. As far as the makeup of the committee, we’re going to have a lot of
different professionals on there from various walks of life that have a particular interest in downtown and will
have a particular interest in making sure that this is successful. | think those are types of things that will come
to fruition and will happen just as a mechanism of the fact that they have to. As far as it being real dollars, |
would imagine it would be real dollars and not pledges.

MOTION CARRIED TO FURTHER AMEND

President McCarthy

We're back to the motion for final passage as amended. Is there further discussion?
Alderman Deane

Alderman Clemons had some good points. On an expendable trust, we just did some significant roadwork up
on Amherst Street and we got money from businesses up there. Since the utilities had some issues, we had to
pay those people interest on their money. We bonded a good portion of that project and then had to pay them
interest because of the utilities issues. There’s a little more to it, but my main question is: The authority of this
building falls under whom, if purchased?

following Seller's delivery of the Electric Hybrid Low Floor Cutaway Vans as required by
Section 6 of this Contract, the Electric Hybrid Low Floor Cutaway Vans shall be deemed
accepted.

8. Title/Risk of Loss. Title, ownership, and risk of loss or damage of the
Electric Hybrid Low Floor Cutaway Vans shall remain with Seller until the Electric Hybrid
Low Floor Cutaway Vans are delivered to, inspected and accepted by City, except when
such loss or damage is due to the fault or negligence of City. Once accepted by City, title,
ownership, and risk of loss shall transfer to City.

9. Termination and Suspension. The City, in its sole discretion, shall have the
right to terminate, abandon, or suspend all or part of the project and contract at will. Ifthe
City chooses to terminate, abandon, or suspend all or part of the project, it shall provide
Seller thirty (30) day’s written notice of its intent to do so. If all or part of the project is
suspended for more than ninety (90) days, the suspension shall be treated as a termination
at will of all or that part of the project and contract.

Upon receipt of notice of termination, abandonment, or suspension at will, Seller

shall:
a. Immediately discontinue work on the date and to the extent specified in the
notice.
b. Provide the City with a list of all unperformed services.
C. Place no further orders or sub-contracts for materials, services, or facilities,

other than as may be necessary or required for completion of such portion of
work under the contract that is not terminated.

d. Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the City of all orders or sub contracts to the extent they relate
to the performance of work terminated, abandoned, or suspended under the
notice, assign to the City any orders or sub contracts specified in the notice,
and revoke agreements specified in the notice.

e. Not resume work after the effective date of a notice of suspension until
receipt of a written notice from the City to resume performance.

In the event of a termination, abandonment, or suspension at will, Seller shall
receive all amounts due and not previously paid to Seller for work satisfactorily completed
in accordance with the Contract Documents prior to the date of the notice and
compensation for work thereafter completed as specified in the notice. No amount shall be
allowed or paid for anticipated profit on unperformed services or other unperformed work.

TERMINATION FOR CAUSE

This agreement may be terminated by the City on ten (10) calendar day’s written
notice to Seller in the event of a failure by Seller to adhere to any or all the terms and
conditions of the contract or for failure to satisfactorily, in the sole opinion of the City, to
complete or make sufficient progress on the work in a timely and professional manner.

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Seller shall be given an opportunity for consultation with the City prior to the effective date
of the termination.

Upon receipt of notice of termination for cause, Seller shall:

1. Immediately discontinue work on the date and to the extent specified in the notice.
. Provide the City with a list of all unperformed services.

3. Place no further orders or sub-contracts for materials, services, or facilities, other
than as may be necessary or required for completion of such portion of work under
the contract that is not terminated.

4. Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the City of all orders or sub contracts to the extent they relate to the
performance of work terminated, abandoned, or suspended under the notice, assign
to the City any orders or sub contracts specified in the notice, and revoke
agreements specified in the notice.

5. Not resume work after the effective date of a notice of termination unless and until
receipt of a written notice from the City to resume performance.

In the event of a termination for cause, Seller shall receive all amounts due and not
previously paid to Seller for work satisfactorily completed in accordance with the contract
prior to the date of the notice, less all previous payments. No amount shall be allowed or
paid for anticipated profit on unperformed services or other unperformed work. Any such
payment may be adjusted to the extent of any additional costs occasioned to the City by
reasons of Seller’s failure. Seller shall not be relieved of liability to the City for damages
sustained from the failure, and the City may withhold any payment to the Seller until such
time as the exact amount of damages due to the City is determined. All claims for payment
by the Seller must be submitted to the City within 30 days of the effective date of the
notice of termination.

If after termination for the failure of Seller to adhere to any of the terms and conditions
of the contract or for failure to satisfactorily, in the sole opinion of the City, to complete or
make sufficient progress on the work in a timely and professional manner, it is determined
that Seller had not so failed, the termination shall be deemed to have been a termination at
will. In that event, the City shall, if necessary, make an adjustment in the compensation
paid to Seller such that Seller receives total compensation in the same amount as it would
have received in the event of a termination-at-will.

GENERAL PROVISIONS FOR TERMINATION

Upon termination of the contract, the City may take over the work and prosecute it
to completion by agreement with another party or otherwise. Upon termination, City shall
be entitled to all work and goods produced or received as of the date of termination, unless
otherwise returned or rejected by the City. Upon termination of the contract or in the event
Seller shall cease conducting business, the City shall have the right to solicit applications

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for employment from any employee of the Seller assigned to the performance of the
contract. Neither party shall be considered in default of the performance of such
obligations is prevented or delayed by any cause, existing or future, which is beyond the
reasonable control of such party. Delays arising from the actions or inactions of one or
more of Seller’s principals, officers, employees, agents, subcontractors, sub consultants,
vendors, or suppliers are expressly recognized to be within Seller’s control.

10. Indemnification. To the fullest extent permitted by law, Seller shall
indemnify, protect, defend, and hold harmless City, its officers, officials, agents,
employees and volunteers from and against any and all claims, damages, demands,
liability, costs, losses and expenses, including without limitation, court costs and
reasonable attorneys’ and expert witness fees resulting from, or related to, this Contract,
and/or arising out of any failure to comply with applicable law, any injury to or death of
any person(s), damage to property, loss of use of property, economic loss or otherwise
arising out of the performance of the work described herein, except where such loss or
damage was caused by the sole negligence, or willful misconduct of the City. The
provisions of this section shall survive the completion, termination or suspension of this
Contract.

City shall promptly notify Seller of any claim and reasonably cooperate, assist and
provide appropriate information (at Sellers's expense) for the defense of the action. Seller
shall pay all damages and costs awarded therein against City but shall not be responsible
for any compromise made without Seller's consent, which consent shall not be
unreasonably withheld.

11. Warranties. In addition to any warranties provided for under the Contract
Documents, Seller warrants that the Electric Hybrid Low Floor Cutaway Vans, including
any component or replacement parts, furnished, manufactured or provided by Seller will be
free from defects in material and workmanship for a period of one hundred and eighty
(180) days from date of acceptance of the Electric Hybrid Low Floor Cutaway Vans by
City. Any additional warranties provided by law, including, but not limited to, the
warranty of merchantability and warranty of fitness for a particular purpose shall remain in
full force and effect and inure to the benefit of City. City reserves all rights and remedies
provided by law for breach of any applicable warranty related to the Electric Hybrid Low
Floor Cutaway Vans.

12. Insurance. Seller shall provide insurance coverage pursuant to Exhibit B
attached hereto, and provide proof of insurance to City's satisfaction.

13. Remedies. In the event of a material breach of the Contract Documents by
Seller, City may avail itself of any other right and remedies available at law or in equity.
Nothing herein shall limit City's rights to seek any available remedy including, but not
limited to, damages and/or equitable relief, in a court of competent jurisdiction.

Notwithstanding any provisions of this Contract, Seller shall not be relieved of
liability to City for damages sustained by City by virtue of any breach of this Contract by
Seller, and City may withhold any payments due to Seller until such time as the exact
amount of damages, if any, due City from Seller is determined. In the event of termination,
Seller shall be compensated as provided for in this Contract.

14. Compliance with Laws & Federal Changes. Seller shall comply with all
applicable laws, ordinances, codes, rules, regulations, programs, plans, and orders in the
performance of the Contract Documents. Without limiting the foregoing, Seller shall
comply with all applicable FTA regulations, policies, procedures and directives, including
without limitation those listed directly or by reference in the Master Agreement between
the City and FTA, as they may be amended or promulgated from time to time during the
term of the contract. Seller's failure to comply shall constitute a material breach of the
contract.

15. Notice of Material Change in Business. Seller agrees that, if it experiences a
material change in its business during the term of this Contract, including, without
limitation, a reorganization, restructuring, leveraged buyout, and/or bankruptcy, Seller will
immediately notify City of the change in writing.

16. Notices. All notices, requests, demands, and other communications
required to or permitted to be given under the Contract Documents shall be in writing and
shall be conclusively deemed to have been duly given (a) when hand delivered to the other
party; (b) when received if sent by telex or facsimile at the address and number set forth
below; (c) three (3) business days after the same have been deposited in a United States
Post Office with certified mail, return receipt requested, postage prepaid and addressed to
the parties as set forth below; or (d) the next business day after same have been deposited
with a national overnight delivery service reasonably approved by the parties (Federal
Express and UPS being deemed approved by the parties), postage prepaid, addressed to the
parties as set forth below with next-business-day delivery guaranteed:

TO SELLER: Name: Creative Bus Sales.
Attn: Mike Shultz
Address: 57475 County Road 3
City: Elkhart, IN 46517

Telephone: 978-228-8410

TO CITY: Name: Nashua Transit System
Attn: Camille Pattison
Address: 11 Riverside Street
City: Nashua, NH 03062

Telephone: 603-821-2035

A party may change or supplement the addresses given above, or designate
additional addresses, for purposes of this section by giving the other parties written notice
of the new address in the manner set forth above.

17. Entire Agreement. The Contract Documents, including all attachments
thereto, contain the entire agreement between City and Seller in connection with the
transaction contemplated hereby and the subject matter hereof and the Contract Documents
supersede and replace any and all prior and contemporaneous agreements, understandings,
and communications between the parties, whether oral or written, with regard to the subject
matter hereof or any course of dealing, course of performance, or usage of the trade. Parol
evidence shall be inadmissible to show agreement by and between City or Seller to any
term or condition contrary to or in addition to the terms and conditions contained in the
Contract Documents. Both parties acknowledge that each has not relied on any promise,
representation or warranty, express or implied, not contained in the Contract Documents.

18. Modification. The Contract Documents shall not be modified in any
manner except by a writing signed by both City and Seller provided that the City at any
time by written order and without notice may make changes within the general scope of this
Contract. If any such changes cause an increase or decrease in the cost of or the time
required for performance hereunder, an equitable adjustment shall be made by written
modification to the Contract. Any claim by the Seller for adjustment under this clause
must be asserted within thirty (30) days from the date of receipt by the Seller of the
notification of change.

19. Assignment. Seller shall not delegate or subcontract any duties or assign
any rights or claims under the Contract Documents without City's prior written consent.

20. Severability. If any term or provision of the Contract Documents shall, to
any extent, be held invalid or unenforceable, the remainder of the Contract Documents
shall not be affected.

21. Waivers. A waiver or breach of a covenant or provision in the Contract
Documents shall not be deemed a waiver of any other covenant or provision in the
Contract Documents and no waiver shall be valid unless in writing and executed by the
waiving party. An extension of time for performance of any obligation or act shall not be
deemed an extension of the time for performance of any other obligation or act.

22. Construction. The section headings and captions of this Contract are, and
the arrangement of this instrument is, for the sole convenience of the parties to this
Contract. The section headings, captions, and arrangement of this instrument do not in any
way affect, limit, amplify, or modify the terms and provisions of this Contract. The
singular form shall include plural, and vice versa. Unless otherwise indicated, all
references to sections are to this Contract. All exhibits referred to in this Contract are
attached hereto and incorporated herein by this reference.

23. Drafting. City and Seller acknowledge and agree that the Contract
Documents have been negotiated at arm's length, that each party has been represented by
independent counsel and/or has had an opportunity to consult with and be represented by
independent counsel, that the Contract Documents are deemed to be drafted by both
parties, that no one party shall be construed as the drafter of the Contract Documents, and
that any rule of construction that ambiguities are to be construed against the drafter shall
not apply in the interpretation or construction of the Contract Documents.

24. Counterparts. This Contract may be executed in one or more counterparts.
Each shall be deemed an original and all, taken together, shall constitute one and the same
instrument.

25. Time of the Essence. Seller and City hereby acknowledge and agree that
time is strictly of the essence with respect to each and every term, condition, obligation,
and provision hereof, particularly, and without limitation of factors contributing to the need
for timely compliance of the Contract Documents.

26. Successors. This Contract shall inure to the benefit of and shall be
binding upon the parties to this Contract and their respective heirs, successors in interest,
and assigns. This Contract may only be assigned upon written approval and agreement of
the parties, which approval will not be unreasonably withheld. Any purported assignment
of this Contract without the prior written approval of all parties shall be null and void.

27. Governing Law. The parties acknowledge that the Contract Documents
have been negotiated and entered into in the State of New Hampshire, Hillsborough
County. The parties agree that the Contract Documents shall be governed by, interpreted
under, and construed and enforced in accordance with the laws of the State of New
Hampshire. Venue for any action or proceeding relating to or arising out of the Contract
Documents shall be in the State of New Hampshire Superior Court Hillsborough County
South.

28. No Third Party Beneficiary Rights. This Contract is entered into for the
sole benefit of City and Seller. No other parties are intended to be direct or incidental
beneficiaries of this Contract and no third party shall have any right in, under or to this
Contract.

29, No Joint Venture or Other Relationship Created. The relationship
between City and Seller is that solely of a seller and a buyer and no joint venture,
partnership or other relationship is created or implied by the Contract Documents.

30. Fiscal Contingency. All payments under this Contract are contingent upon
the availability to the City of the necessary funds. This contract shall terminate and the
City’s obligations under it shall be extinguished at the end of any fiscal year in which the
City fails to appropriate monies for the ensuing fiscal year sufficient for the performance of
this contract.

Nothing in this Contract shall be construed to provide Seller with a right of payment over
any other entity. Any funds obligated by the City under this Contract that are not paid to
Seller shall automatically revert to the City’s discretionary control upon the completion,
termination, or cancellation of the Contract. The City shall not have any obligation to re-
award or to provide, in any manner, the unexpended funds to Seller, except for those
payments which are owed to the Seller due to amounts incurred by the Seller up to and
including the date it is determined by the City that the necessary funds are not available
(the “Lack of Funding Date”). Operator shall have no claim of any sort to the unexpended
funds following the Lack of Funding Date.

31. Dispute Resolution. The parties shall attempt to resolve any dispute related
to this Contract as follows. Either party shall provide to the other party, in writing and with
full documentation to verify and substantiate its decision, its stated position concerning the
dispute. No dispute shall be considered submitted and no dispute shall be valid under this
provision unless and until the submitting party has delivered the written statement of its
position and full documentation to the other party. The parties shall then attempt to resolve
the dispute through good faith efforts and negotiation. Unless otherwise directed by the
City, at all times Seller shall continue performance under the Contract Documents while
matters in dispute are being resolved. If the parties are unable to resolve their dispute as
described above within 30 days, the parties’ reserve the right to pursue any available legal
and/or equitable remedies for any breaches of this contract except as that right may be
limited by the terms of this Contract.

Should either party to the Contract suffer injury or damage to person or property because of
any act or omission of the party or of any of its employees, agents or others for whose acts it
is legally liable, a claim for damages therefore shall be made in writing to such other party
as soon as practicable after the first observance of such injury or damage.

Duties and obligations imposed by the Contract Documents and the rights and remedies
available thereunder shall be in addition to and not a limitation of any duties, obligations,
rights and remedies otherwise imposed or available by law.

32. Correction of Work. The Seller shall promptly correct work rejected by the
City as failing to conform to the requirements of the Contract Documents. The Seller shall
bear the cost of correcting such rejected work. In addition to the Seller’s other obligations
including warranties under the Contract, the Seller shall, for a period of one year after final
acceptance, correct work not conforming to the requirements of the Contract Documents.
If the Seller fails to correct nonconforming work within a reasonable time, the City may
correct it and the Seller shall reimburse the City for the cost of the correction.

33, Ownership of Documents. The City and FTA will become owners of all

documents prepared by the Seller upon payment for same by City, except any documents

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which may be protected by patent, lease or other written documents which provides proof of
ownership.

34. No Federal Government Obligation to Third Parties.

(a) The City and the Seller acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be subject to any
obligations or liabilities to the City, the Seller, or any other party (whether or not a party to
that contract) pertaining to any matter resulting from the underlying contract.

(b) The Seller agrees to include the above clause in each subcontract financed in whole
or in part with Federal assistance provided by FTA. It is further agreed that the clause shall
not be modified, except to identify the subcontractor who will be subject to its provisions.
Incorporate FTA Terms

35. Program Fraud and False or Fraudulent Statements or Related Acts.

(a) The Seller acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C.§ 3801 et seq. and U.S. DOT regulations, "Program
Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project.
Upon execution of the underlying contract, the Seller certifies or affirms the truthfulness
and accuracy of any statement it has made, it makes, it may make, or causes to be made,
pertaining to the underlying contract or the FTA assisted project for which this contract
work is being performed. In addition to other penalties that may be applicable, the Seller
further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent
claim, statement, submission, or certification, the Federal Government reserves the right to
impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Seller to the
extent the Federal Government deems appropriate.

(b) The Seller also acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in part
with Federal assistance originally awarded by FTA under the authority of 49 U.S.C.§ 5307,
the Government reserves the right to impose the penalties of 18 U.S.C.§ 1001 and 49
U.S.C.§ 5307(n)(1) on the Seller, to the extent the Federal Government deems appropriate.

(c) The Seller agrees to include the above two clauses in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the
clauses shall not be modified, except to identify the subcontractor who will be subject to
the provisions.

36. Records.

(a) Retention. The Seller will retain, and will require its subcontractors of all tiers
to retain, complete and readily accessible records related in whole or in part to the

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