Search

15.3

15.4

15.2.1 The Contract Documents establish Supplier’s Performance Guarantees associated with

15.2.2

15.2.3

the Equipment. If the Equipment, upon testing, initially or during the warranty period
fails to satisfy any aspect of such Performance Guarantees (provided the Equipment was
installed and commissioned under Supplier's supervision as provided as Technical
Services and according to Supplier's standards and provided further that such failure is
not due to abuse, improper modification or improper maintenance or operation by
persons other than Supplier or any reason specified in the General Conditions, or by
Force Majeure, then Supplier, at its own cost and expense, shall exercise good faith
efforts to correct the Equipment (through the repair of components, replacement of
components, or otherwise) in order to achieve such Performance Guarantees. If these
Performance Guarantees are still not achieved despite such efforts, Supplier shall pay
Purchaser an annual payment penalty pursuant to the following formula, which is based
on the current net metering price of 85 mils per KWH:

P= 085 x (KWH1 — KWH?)

where P = Annual Payment to City by Mavel ($}

KWH1 = Calculated average annual output based on Mavel's original guaranteed turbine
performance.

KWH2 = Calculated average annual output based on installed turbine performance as
determined by turbine testing and commissioning witnessed by the City and Mavel.

Said Annual Payment [P} shall not exceed 15% of the original contract price of
$1,271,700, and shall be continued for a period of three (3) years (net metering rate
life).

Average annual production for KWH1 and KWH2 shall be calculated on the basis of a
19.9 foot net head {as defined by IEC Publication #41). The City and Mavel shail agree
on an average energy model that will be used in determining KWH1 and KWH2.

Supplier will only be obligated to pay the liquidated damages outlined in Article 15.2.1
above if the cause of such performance shortfall is solely due to the Supplier and
Purchaser has complied with all material obligations within the Contract.

The maximum amount that Purchaser shall be entitled to recover for liquidated
damages for failure to meet Performance Guarantees as outlined above, is 100 percent
(100%) of the total Contract Price.

intentionally omitted

Consequential Damages

15.4.1

iN NO EVENT and regardless of the legal theory under which such damages or losses
may be claimed including negligence SHALL PURCHASER BE LIABLE TO SUPPLIER FOR:
(1} LOSS OF ANTICIPATED PROFITS OR LOSS OF REVENUE OR BUSINESS OPPORTUNITY,
OR COST OF OBTAINING OTHER MEANS FOR PERFORMING THE WORK, LOSS OF
FUTURE CONTRACTS, CLAIMS OF CUSTOMERS, COST OF MONEY, OR LOSS OF USE OF
CAPITAL; OR (2) EXCEPT TO THE EXTENT OF PURCHASER’S OBLIGATIONS TO INDEMNIFY

16

17

18.

19.

SUPPLIER IN ACCORDANCE WITH THE TERMS OF THE CONTRACT DOCUMENTS, ANY
OTHER CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY NATURE.

Indemnification

16.1 To the fullest extent permitted by Law, Supplier shall defend, indemnify and hold harmless
Purchaser and their respective officers, directors, shareholders, partners, employees, agents,
consultants, contractors and subcontractors {collectively “Purchaser Indemnitees”) from and
against any and all claims for damages, losses and expenses, including, but not limited to,
reasonable attorney's fees, arising out of or relating to the Project, provided that such claim,
damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to
or destruction of tangible property {other than the Equipment itself}, but only to the extent
caused by breaches of the guarantees set forth in the Contract, or by the negligent acts or
omissions or willful misconduct of Supplier, or its subcontractors, vendors, manufacturers or
suppliers or anyone directly or indirectly employed by any of them, or anyone for whose acts any
of them may be liable, regardless of whether or not such claim, damage, loss or expense is
caused in part by a party indemnified hereunder. However, nothing contained herein shall
require Supplier to indemnify the Purchaser Indemnitees for their own sole negligence or
wrongful conduct.

16.2 To the fullest extent permitted by Law, Purchaser shail defend, indemnify and hold harmless
Supplier and Supplier’s subcontractors, vendors, manufacturers and suppliers, and their
respective officers, directors, shareholders, partners, employees, and agents (collectively
“Supplier Indemnitees”} fram and against any and all claims for damages, losses and expenses,
including, but not limited to, reasonable attorney's fees, arising out of or relating to the Project,
provided that such claim, damage, loss or expense is attributable to bodily injury, sickness,
disease or death, or to injury to or destruction of tangible property, but only to the extent caused
by the negligent acts or omissions or willful misconduct of Purchaser, anyone directly or
indirectly employed by it, or anyone for whose acts it may be liable, regardless of whether or not
such claim, damage, loss or expense is caused in part by a party indemnified hereunder.
However, nothing contained herein shall require Purchaser to indemnify the Supplier
Indemnitees for their own sole negligence or wrongful conduct.

. Defined Terms

Terms used in this Agreement with initial capital letters will have the meanings indicated in the General
Conditions or as defined herein.

Severability

Any provision or part of the Contract Documents held to be void or unenforceable under any Law or
Regulation shail be deemed stricken, and all remaining provisions shail continue to be valid and binding
upon Purchaser and Supplier. The Contract Documents shalt be reformed to replace such stricken
provision or part thereof with a valid and enforceable provision that comes as close as possible to
expressing the intention of the stricken provision.

Counterparts
This Agreement and any other Contract Document may be executed in counterparts, each of which shall

be deemed an original, but all of which together shall be deemed to be the same document. A signed
copy of this Agreement (including initials affixed to all pages) or another Contract Document delivered by

20.

facsimile, e-mail or other means of electronic transmission shail be deemed to have the same legal effect
as delivery of an original signed copy of this Agreement or other Contract Document, as the case may be.

No Waiver

No provision of this Agreement shall be considered waived by either party except when such waiver is
made in writing. The failure of either party to insist, on one or more occasions, upon strict performance
of any of the provisions of this Agreement or to take advantage of its rights hereunder or the delay or
failure in exercising totally or partially any right or remedy under this Agreement, shall not be construed
as a waiver of any such provisions or the relinquishment of any such rights or any other rights for the
future, but the same shall continue and remain in full force and effect.

IN WITNESS WHEREOF the Parties hereto have executed this Agreement by the hands of their duly
authorized representatives.

City of Nashua

Signed by Mr. James W. Donchess on behalf of the City of Nashua

Authorized Signatory

Name: James W. Donchess
Title: Mayor
City of Nashua

Mavel Americas, inc.

Signed by Jeanne L. Hilsinger on behalf of Mavel Americas, Inc.

Authorized Signatory

Name: Jeanne L. Hilsinger
Title: President

Jackson Mills HPP GENERAL CONDITIONS (PART 1)
City of Nashua Page 1 of 20

GENERAL CONDITIONS
Part 1

Equipment Supply Agreement

NO. 0-29029
for

Jackson Mills HPP

BETWEEN

CITY OF NASHUA
AND
MAVEL AMERICAS, INC.

4 Mavel Americas, Inc.

Jackson Mills HPP

GENERAL CONDITIONS (PART 1)

City of Nashua Page 2 of 20
TABLE OF CONTENTS

1. Definition of Terms

2. Supplemental Instructions

3. Drawings, Specifications, Submissions and Record Documents

4, Supplier’s Personnel

5. Equipment

6. Minimum Standards

7. Scheduling and Delays

8. Suspension of Work

3. Purchaser and Supplier Rights to Perform, Stop or Terminate the Contract

10. Sub-suppliers and Suppliers

11. Other Suppliers

12. Contract Price

13. Taxes and Duties

14, Permits, Royalties, Laws and Rules

15. Applications for Payment

16. Approvals of Payment

17. Changes in the Work

18. Valuation of Changes

19. Patents and Licences

20. — Inspection of Work

21. Defective Work

22. Completion and Warranty

23. Safety and Protection of the Work and Property

24. — Insurance

25. Disputes

26. Assignment

27. N/A

28. Confidentiality and intellectual Property

29. Force Majeure

2 Mavel Americas, Inc.

Jackson Mills HPP GENERAL CONDITIONS (PART 1)
City of Nashua Page 3 of 20

Definition of Terms
1.4. Whenever used in the Contract Documents, the following terms mean:
Capacity. The nameplate capacity of the Equipment provided as detailed tn Part 2 of the Contract Documents,

Change Order. A written order signed by both the Purchaser and the Supplier authorizing additional or alternate
Work not previously specified in the Contract Documents;

Commencement Date. The Commencement Date is the later of the Effective Date and the receipt of the
Milestone No. 1 payment.

commercial Operation. Commercial Operation occurs on the earlier of the date when the generating unit,
including the Equipment, is connected to the grid or the date the generating unit is ready to be
connected to the grid.

Contract. The Contract is the undertaking by the Parties to perform their respective duties, responsibilities, and
obligations as prescribed in the Contract Documents and represents the entire agreement between the
Parties;

Contract Documents. The Contract Documents consist of those documents listed in Article 1.1 of the Agreement.
Contract Price. The Contract Price is the amount stipulated in Article 7 of the Agreement;

Delivery Times. The Delivery Times are the times stipulated in Article 6 of the Agreement,

Delivery Schedule. The Delivery Schedule as set forth in Article 6 of the Agreement

Disputes. Differences between the Parties as described in Article 25 of these General Conditions;

Drawings. All drawings, plans, sketches and maps and any revisions or additions thereto, issued to the Purchaser
during the performance of the Work;

Effective Date. The Effective Date is the date of the signing of the Contract by both Parties.

Equipment. Those portions of the Work which includes the equipment specified in Part 2 of the Contract,
Documents supplied to the Project Site and, if expressly specified in the Part 2 of the Contract
Documents, also spare parts provided by the Supplier;

Field Services. Also referred to as Technical Services, the services of the Supplier to be provided at Project Site
which will include supervision of installation, testing and commissioning and/or other assistance by
Supplier's personnel;

Final Completion. The earlier of the date upon which the Final Certificate of Completion is issued to the Supplier
or one hundred fifty {150) days after the fast Delivery Time as set for in Article 6 of the Agreement,
untess Supplier is sole cause of delay or in the event that the respective delivery is delayed by sole
cause of the Supplier, then Final Acceptance will be no later than 120 days after the actual date of the
delivery.

Final Certificate of Completion. That notice issued by the Purchaser to the Supplier pursuant to Articie 22 of the
General Conditions certifying completion and acceptance of the Work, including completion of the
commissioning of the Equipment and all material punch list items.

General Conditions. This document which forms Part 1 of the Contract Documents;

3 Mavel Americas, Inc.

Jackson Mills HPP GENERAL CONDITIONS (PART 1)
City of Nashua Page 4 of 20

interim Certificate of Completion. That notice issued by the Purchaser to the Supplier pursuant to Article 22.2 of
the General Conditions identifying outstanding matters and items of the Work that the Supplier must
complete prior to issuance of the Final Certificate of Completion;

Materials. Materials means any raw material or semi-produced materials, parts, or any other kinds of materials
necessary for the Work;

Milestone Payment Schedule. The payment schedule as set forth in Article 8.1.1 of the Agreement.

Other Suppliers. A person, firm or corporation having a contract directly or indirectly with the Purchaser other
than through the Supplier;

Payment Milestone. The Payment Milestones are as set forth in Article 8.1.1 of the Agreement;

Performance Guarantees. The Performance Guarantees are set forth in Section 2.1 of the Agreement.

Purchaser. The person or entity identified as such in the Agreement. The term Purchaser means the Purchaser or
the Purchaser's assignee, authorized agent or representative as designated to the Supplier in writing;

Place of the Work. The Supplier’s place of manufacture;
Project. The Project means the total construction contemplated of which the Work is a part;

Project Schedule. The schedule prepared by the Purchaser identifying the earliest expected starting and latest
completion dates for each major design, procurement, and delivery activity;

Project Site. The location identified as such in Article 2.1 of the Agreement;
Punch List Item. A minor defect identified by the Purchaser or the Supplier during installation and commissioning.
Specification. Specifications provided by Supplier to Purchaser as regards the Equipment:

Sub-supplier. A Sub-supplier is a person or entity having a direct contract with the Supplier to perform a part or
parts of the Work:

Supplier, The Supplier is the person or entity identified as such in the Agreement;
Supplier’s Personnel, All personnel employed by the Supplier as described in Article 4 of the General Conditions;
Supplier's Work Schedule. The schedule provided by the Supplier;

Technical Services. Also referred to as Field Services, the services of the Supplier to be provided at Project Site
which will include supervision of installation, testing and commissioning and/or other assistance by
Supplier's personne!;

Warranty. Supplier’s Warranty on the Equipment is set forth in Article 22.3 of the General Conditions;
Warranty Period. The period set out in Article 22.3 of the General Conditions;

Work. The Work means the supply of the Equipment as described in Part 1 of the Contract Documents, and
documentation as specified in Part 1 of the Contract Documents;

Work Schedule. The schedule provided by the Supplier pursuant to Article 6.2 of the Agreement.

Force Majeure Event. A Force Majeure Event means: acts of nature; war or hostilities; a strike or lockout, work-to-
rule or trade dispute at a Party's premises; a national strike; fire, flood or storm tempest; explosion or

4 Mavel Americas, Inc.

Jackson Mills HPP GENERAL CONDITIONS (PART 1)
City of Nashua Page 5 of 20

1.2.

1.3.

1.4.

1.5.

destruction of or affecting the Party’s premises or those of any of its suppliers or subcontractors;
changes in law, government policy or export license requirements; terrorism; biohazards and civil
commotion; imposition of UN sanctions; any event beyond the reasonable control of either Party; and,
in cases where one Party is dependent on the other to perform an obligation, any act or default of the
other Party that delays the dependent Party’s own performance;

The Contract Documents are complementary and what is required by any one part shall be as binding as
if required by all.

Should there be any conflict or inconsistency in the Contract Documents, the Supplier shall notify the
Purchaser and:

1.3.1. The order of priority and interpretation of documents, from highest to lowest, shall be:
e Change Orders
e Purchase Order
e Agreement (Part 0)
e General Conditions (Part 1)
Mavel’s Proposal (Part 2)
e Field Services Protocol (Part 3)

1.3.2. Drawings of larger scale construction detail plans shall govern over those of smaller scale_general
plans of the same date;

1.3.3. Dimensions shown on Drawings shall govern over dimensions scaled from Drawings; and
1.3.4. Documents prepared at a later date shall govern over earlier documents of the same type.

Reference to standard specifications, manuals or codes of any technical society, organization or
association, or to the code of any governmental authority shall mean the latest standard specification,
manual or code in effect on the date of the Agreement, except as may be otherwise specifically stated.

The apparent generality of the Specifications or the Drawings as to any detail, or the apparent omission
from them of a detailed description concerning any point, shall be regarded as meaning that only the
general practice is to prevail and that only Equipment, and workmanship of the sufficient quality are to
be used.

2. Supplemental Instructions

2.1.

2:2.

2:3.

During the progress of the Work, the Purchaser will furnish to the Supplier such supplemental
instructions necessary to carry out the design concept for the Work. In giving such supplemental
instructions, the Purchaser shall have authority to make minor changes in the Work, not inconsistent
with the intent of the Contract Documents, and the Work shall be executed in conformity therewith.

Supplemental instructions may be in the form of Specifications, drawings, models or written
instructions and shall not result in a change in the Contract Price or the Contract Time unless this results
in a material change in the scope of the Contract. In such case, the change will be determined according
to Articles 17 and 18. The Supplier may make small changes to the design of the Equipment; however
this must not influence the parameters and durability of the Equipment. Supplemental instructions are

not “Change in the Work.”

The Supplier shall work only from Specifications and Drawings approved for construction.

Mavel Americas, Inc.

Jackson Mills HPP GENERAL CONDITIONS (PART 1)
City of Nashua Page 6 of 20

3.

Drawings, Specifications, Submissions and Record Documents

3.1.

3.2.

3.3.

3.4,

3.5.

3.6.

The Supplier will be provided, without charge, sufficient copies of drawings as are reasonably necessary
for the performance of the Work.

The drawings and other information furnished by the Purchaser shall be used only with respect to the
Work, shall not be used on other work, shall not be copied or revised in any manner, and shall be
returned to the Purchaser, on request, at the completion of the Work.

The Specifications, Drawings, and all samples and other information furnished by the Supplier shall be
used only with respect to the Project, shall not be used on other projects, and shall not be copied or
revised in any manner.

All documents, specifications drawings and other information furnished by the Supplier will be in the
English language.

All Specifications, Drawings and other information related to the Work furnished by the Supplier to any
party in connection with the Contract shall be used solely for the Project

The Purchaser may request the Supplier at any reasonable time to provide copies of the calculations,
Drawings, Specifications, relevant codes, schedules, and other documents, whether finalized or in
preparation for review or comment, and Supplier shall comply forthwith with any such request and any
requirements indicated by the Purchaser as a result of such review or comment.

The Supplier shall submit to the Purchaser for the Purchaser’s review and comment Preliminary Design
and Detailed Design, as described in Part 2: Attachment 1 of the Contract Documents. Purchaser shall
consider such documents and notify the Supplier of either acceptance or the reasons for non-
acceptance of such documents within ten (10) working days of receipt. In the case that drawings must
be resubmitted by Supplier, then the Purchaser must comment or approve the resubmitted drawings
within five (5) days of receipt. In the event of a delay in the acceptance of documents not attributable
to the Supplier, the Contract Times shall be adjusted accordingly by means of a written Change Order. If
the Purchaser does not comment on a submittal drawing within the time periods stated above, the
submittal will be deemed approved. If Parties cannot agree to drawings, then they will decide next
steps and Contract Times shall be adjusted accordingly.

The Supplier shall provide, prior to delivery of the Work, two copies of all specifications, drawings,
samples, models and other information furnished by the Supplier, and operation, installation and
maintenance manuals, samples and models, and those copies should be kept in good order at Project
Site and Purchaser shall record thereon all changes made during installation, testing or commissioning
of the Equipment as they occur.

Supplier’s Personnel

The Supplier shall employ qualified personnel to enable timely and proper execution and completion of
the Equipment. All such Supplier’s personnel shall be competent and qualified by education, training,
and experience and in all other respects capable of carrying out the tasks to which each is assigned.

Equipment

All Equipment supplied by the Supplier shall be new and shail be applied, installed, connected, erected,
stored, used, cleaned, conditioned and maintained by the Purchaser in accordance with the written
instructions of the applicable manufacturer, fabricator, Supplier or distributor, except as otherwise

Mavel Americas, Inc.

Jackson Mills HPP GENERAL CONDITIONS (PART 1)
City of Nashua Page 7 of 20

provided in the Contract Documents. Workmanship, Equipment, and use of materials shall be of the
quality specified or better. Equipment and materials, which are nat specified shall be of a quality
consistent with those specified and their use acceptable to the Purchaser.

6. Minimum Standards

In the absence of other standards required by the Contract Documents, all Work and Equipment shail
conform to, or exceed, the minimum standards of the European Union standards, CSN, IEC and ISO
international norms.

7. Scheduling and Delays

7.1. The Purchaser shail establish a system for monitoring the planning and scheduling activities of the
Supplier and ali Other Suppliers on the Project utilizing a Project Schedule that will identify the earliest
expected starting and latest completion dates for each major activity. The Purchaser may revise the
Project Schedule from time to time, but the original and all revisions of the Project Schedule shall be
promptly disclosed to the Supplier. Purchaser shall pay Supplier for any direct costs incurred by
Supplier due to material revisions in the Project Schedule.

7.2. Within twenty-one (21) days from the Commencement Date, the Supplier will submit to the Purchaser a
detailed task-by-task outline of Supplier’s Work Schedule for the delivery of Preliminary Design and
Detailed Design, manufacture and shop testing of the Equipment considering the Delivery Schedule as
per Article 6 of the Agreement within the Project Schedule. The Purchaser will review the Supplier's
Work Schedule for general compliance with the Project Schedule and may request adjustments thereto
to arrive at a Supplier’s Work Schedule that will not interfere with or delay the work of Other Suppliers
or other Project activities, however the Delivery Schedule specified in the Article 6 of the Agreement
has to be adhered. This detailed schedule will be called the Work Schedule and will become an integral
part of the Project Schedule.

7.3. If the Supplier is delayed in the performance of the Work by:

7.3.1. an act or omission of the Purchaser, Other Supplier, or anyone employed or engaged by them
contrary to the provisions of the Contract Documents; or

7.3.2. a stop work order issued by a court or other public authority and providing that such order was
not issued as the result of an act or fault of the Supplier or anyone employed or engaged by it
directly or indirectly;

and if such delay, affects the critical path for the Work, then, at the request of the Supplier, the
Contract Times shall be extended for such reasonable time as the Purchaser and the Supplier shall
agree and the Contract Work Schedule and Contract Times will be adjusted accordingly by means
of a written Change Order. Unless agreed to otherwise by Supplier and Purchaser, the adjustment
must be at least the period of the delay.

7.4. Should the Supplier, at any time, be of the opinion that it cannot meet the requirements of the Contract
Work Schedule, the Supplier shall consult with the Purchaser to determine whether the Contract Work
Schedule can be changed without affecting the critical path of the Project Schedule.

7.4.1. If, in the opinion of the Purchaser, changes can be made to the Contract Work Schedule without
affecting the critical path of the Project Schedule, these changes will be made to establish a new
Contract Work Schedule and the Contract Times will be adjusted accordingly.

7 Mavel Americas, Inc.