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thirty (30) days, ESCO fails to begin to cure and proceed to completion
thereof as quickly as is reasonably possible;

8) Any failure to maintain the Standards of Comfort and service set forth in
Attachment 8 - Standards of Comfort due to the failure of ESCO to properly
design, install, maintain, repair or adjust the equipment installed and
maintained as part of the Work except that such failure, if corrected or
cured within seven (7) days after written notice by Customer to ESCO
demanding that such failure be cured, shall be deemed cured for purposes
of this Contract;

9) Any failure to furnish and install the equipment or ECMs/OCMs or perform the
Work and make it ready for use within the time specified by this Contractas
set forth in Attachment 2 - Maintenance and Service Agreement;

10) Any lien or encumbrance upon the equipmentor the Premises by any
subcontractor, laborer or material man of ESCO which is not released in thirty
(30) days;

11) Any failure by ESCO to pay any amount due or perform any material
obligation under the terms of this Contract; and

12) It is determined that ESCO has failed to disclose a material conflict of interest
relative to the performance of this Contract or if it is found that any gift or
gratuity were offered or given by the Contractor, or any agentor
representative of the Contractor, to any officer or employee of the Customer
with a view toward securing a contract or favorable treatment with respect
to performance of the Contract.

7.2 Obligations of the Customer

Customer shall respond to all audits, proposed revisions and related requests on a timely
basis for the expeditious design, implementation and monitoring of conservation measures.
Furthermore, Customer shall comply with the Customer Responsibilities as are detailed in
Attachment 2 - Maintenance and Service Agreement.

Each of the following events or conditions shall constitute a breach by Customer and shall
give ESCO the right, without an election of remedies to proceed pursuant to Section 9.01

and terminate this Contract by delivery of written notice declaring termination, upon which
event the Customer shall be liable to ESCO for all Work furnished to date:

23

1) Any failure by the Customer, without cause, to authorize payment due more than
thirty (30) days after receipt of notice that the Customer is delinquent in
making payment;

2) Any representation by Customer in the RFP and this Contract is false or
misleading in any material respect when made; and

3) Any failure by the Customer to perform or comply with any other material term or
condition of this Contract, including breach of any covenant contained herein,
provided that such failure continues for thirty (30) days after written notice to

ESCO Contract — Nashua Schools & EEI, Inc.

24

the Customer demanding that such failure be cured or, if cure cannot be
effected in thirty (30) days, the Customer fails to begin to cure and proceedto
completion thereof as quickly as is reasonably possible.

ESCO Contract — Nashua Schools & EEI, Inc.

8. Insurance and Bond Requirements

8.1 Worker's Compensation Insurance
ESCO shall provide during the life of this Contract Worker's Compensation Insurance as
follows:
1) Workers Compensation Coverage A = Statutory Minimum
Employer's Liability Coverage B $500,000 each accident
2) $500,000 disease peremployee
3) $500,000 disease policy

8.2 Comprehensive General Liability

ESCO shall provide Comprehensive General Liability with the following minimum coverage
with respect to the Work and other operations performed by ESCO and its employees,
subcontractors, supplier's agents and invitees:

1) Bodily Injury and Property Damage $1,000,000 each occurrence, $1,000,000 aggregate
2) Products and Completed Operations $1,000,000 each occurrence, $1,000,000 aggregate
3) Contractual Liability and Property Damage $1,000,000 each occurrence,

$1,000,000 aggregate

8.3 Vehicle Liability

ESCO shall provide the following minimum coverage with respect to the operations of the
any employee, including coverage for owned, non-owned, andhired vehicles:

Bodily Injury $1,000,000 each occurrence

Property Damage $1,000,000 each occurrence

Combined Single Limit $1,000,000

8.4 Property Coverage
ESCO shall provide the following coverage against loss or damage by fire and against loss
or damage covered by the special perils insurance endorsement on all Work:

All Risk 80% of Contract Price minimum

Upon completion of Work at Customer buildings, ESCO shall provide an installation floater,
in the full amount of the Contract Price, for the requirements set forth above. The policy or
policies shall specifically state that they are for the benefit and payable to the Customer,
ESCO, and all persons furnishing labor or labor and materials for the Work, shall be listed
as loss payee as their interests may appear.

8.5 Professional Liability Insurance

ESCO shall maintain in full force and effect, at ESCO’s expense, an Errors and Omissions
or Professional Liability Insurance Policy in the amount of $1,000,000 minimum coverage.
The policy shall remain in effect for the duration of the applicable statute of limitations for
claims against construction professionals.

ESCO shall be responsible for all claims, damages, losses or expenses, including attomeys
fees, arising out of or resulting from the performance of professional services contemplated
by this Contract, provided that any such claim is attributable to bodily injury or death, or

25 ESCO Contract — Nashua Schools & EEI, Inc.

injury to or destruction of tangible personal property, or to failures of the Work, including the
loss of use resulting therefrom, and is caused, in whole or in part, by any negligent act, error
or omission of ESCO, any consultant or associate thereof, anyone directly or indirectly
employed by ESCO. ESCO shall submit a Certificate of Insurance and policy endorsement
verifying said coverage upon execution of this Agreement and also any notices of renewals
of such policy as they occur.

8.6 Environmental Impairment Liability Insurance

ESCO shall maintain in full force and effect, at ESCO’s expense, a Sudden & Accidental
Environmental Impairment Liability Insurance Policy in the amount of $1,000,000 minimum
coverage unless comparable coverage is provided pursuant to the policy requiredin Section
8.05. The policy shall remain in effect for the duration of the applicable statute of limitations
for claims against construction professionals.

ESCO shall be responsible for all claims, damages, losses or expenses, including attomeys
fees, arising out of or resulting from the cleanup, removal, and handling of hazardous
materials contemplated by this Contract and is caused, in whole or in part, by any negligent
act, error or omission of ESCO, any consultant or associate thereof, anyone directly or
indirectly employed by ESCO. ESCO shall submit a Certificate of Insurance and policy
endorsement verifying said coverage upon execution of this Agreement and also any
notices of renewals of such policy as they occur.

8.7 Customer as Additional Insured
The Customer shall be named as additional insured on ESCO’s Liability Policies.
8.8 Certificates of Insurance, Policies

Certificates of insurance and policy endorsements, acceptable to the Customer, shall be
submitted to the Customer upon the execution of this Contract and shall be renewed upon
expiration of the policies. Certificates shall indicate that the coverage required bysection
8.01 through 8.06 is in effect. If the Customer is damaged by ESCO’s failure to maintain
such insurance, then ESCO shall be responsible for all reasonable costs or damages
attributable thereto. Certificates shall note the thirty (30) day cancellation notice requirement
of Section 8.09. All policies shall be issued by companies authorized to write that type of
insurance under the laws of the State of New Hampshire. Any and all deductibles and self-
insured retention contained in any insurance policy shall be assumed by and at the risk of
ESCO.

8.9 Cancellation
Customer shall be provided notice of cancellation at least thirty (30) days prior to the
effective date thereof for any insurance policy required of ESCO by this Contract.

8.10 Bonds

ESCO shall provide the Customer with payment and performance bonds and unless waived
by Customer pursuant to Section 6.05, so called, to cover the full term and value of the
Contract and issued by a regulated financial institution wth a Best Rating of not less than A,
or a comparable rating from a recognized financial rating firm, as follows:

26 ESCO Contract — Nashua Schools & EEI, Inc.

1) Performance and payment bonds shall secure 100% of the Contract Price (these
bonds apply only to the Work to be performed, and do not cover any
guaranteed savings)

Any performance and payment bonds shall be maintained in full force and effect by ESCO
until Project Acceptance. Customer agrees that upon Project Acceptance any performance
and payment bonds shall be released and any obligations arising thereunder shall be
terminated. AIA bond forms may be employed.

This Agreement shall be governed and construed in accordance with the law of the State of New Hampshire and
any action in law or in equity concerning any dispute arising out of this Agreement, the obligations performed or to
be performed thereunder, or in any way referable thereto shall be brought in the New Hampshire Superior Court

for the Southern Judicial District of Hillsborough County or in the New Hampshire 9th Circuit Court situated in
Nashua, New Hampshire and not elsewhere.”

27 ESCO Contract — Nashua Schools & EEI, Inc.

9. General Provisions
9.1 Dispute Resolution

Disputes regarding changes in and interpretations of the terms or scope of the Contract and
denials of or failures to act upon claims for payment for extra work or materials shall be
resolved according to the following procedures:

1) All claims by ESCO shall be made in witing and submitted to the Customer fora
written decision.

2) ESCO shall not delay, suspend, or curtail performance under the Contractas
a result of any dispute subject to this section.

3) Within sixty (60) days of submission of the dispute to the Customer, the Customer
shall issue a written decision stating the reasons therefor, and shall notify the
parties of their right of appeal under this section. If the official of the Customer
is unable to issue a decision within sixty (60) days, he shall notify ESCO in
writing of the reasons and of the date by which the decision shallissue.

4) Failure to issue a decision within one hundred and twenty (120) day period or
within the additional period specified in such written notice shall give the
petitioner the right to pursue any legal remedies available to him without
further delay.

5) ESCO and Customer agree that all disputes relating to this Contract and
performance thereunder shall be resolved through courts in the State of
New Hampshire and any appellate court from which an appeal may be
taken therefrom. To the fullest extent permitted by law, the parties
irrevocably and unconditionally submit to the exclusive jurisdiction of said
court.

9.2 Conditions Beyond Control of the Parties

Except as otherwise provided herein, if either party shall be unable to carry out any material
obligation under this Contract due to events beyondits control, such as acts of God,
governmental or judicial action, insurrections, riots, extended labor disputes, fires,
explosions or floods, this Contract shall remain in effect but the affected party’s obligations
shall be suspended until the uncontrollable event terminates or is resolved, unless the
Contract is terminated by either party following a ninety (90) day delay, in which event,
Customer shall pay ESCO for all parts of the Work furnished to the date of termination or as
otherwise agreed.

9.3 Labor Laws

ESCO shall obey and abide by all laws and regulations of the State of New Hampshire
relating to the employment of labor and public work, including, without limitation, the
State’s drug-free workplace policy (ESCO shall deliver to Customer a certificate of
compliance with such policy).

ESCO shall comply with all federal and state laws, rules and regulations promoting fair

28 ESCO Contract — Nashua Schools & EEI, Inc.

employment practices or prohibiting employment discrimination and unfair labor practices.
ESCO shall not discriminate in the delivery of services against any person who otherwise
meets the eligibility criteria for services, or in the hiring of any applicant for employment nor
shall any qualified employee be demoted, discharged or otherwise subject to discrimination
in the tenure, position, promotional opportunities, wages, benefits or terms and conditions of
their employment because of race, color, national origin, ancestry, age, sex, religion,
disability, status as a Vietnam Era Veteran, sexual orientation or for exercising any rights or
benefits afforded by lawincluding the requirements of Federal Executive Orders 11246,
11625, 11375 and 11830 and Title 28 Chapter 5.1.

9.4 Prevailing Wage Rate
NWA

9.5 Appropriations

The Customer reasonably believes that funds can be obtained sufficient to make all
payments due to ESCO under this Contract. The Customer hereby covenants that it will
make reasonable and diligent efforts to obtain and maintain funds from which such
payments may be made, including making provisions for such payments to the extent
necessary in each annual or supplementary budget submitted for the purpose of obtaining
funds, and using reasonable efforts to have such portion of the budget approved. Nothing
herein shall obligate the Customer to institute legal action before any court, to commence
proceedings before any forum, or to institute proceedings in the nature of mandamus
against any public official in attempting to obtain said funds.

96 Laws, Regulations, Ordinances and Standard Practices

ESCO shall perform its obligations hereunder in compliance with any and all applicable
federal, state, and local laws, regulations, ordinances and by-laws, including applicable
licensing and permitting requirements, in accordance with sound engineering and safety
practices, and in compliance with any and all reasonable rules or policies of the Customer
relative to the properties. ESCO shall be responsible for obtaining all governmental pemmits,
licenses, consents, and authorizations as may be required to perform its obligations
hereunder (see also Section 5.10 regarding permits and fees pertaining to the Work).

9.7 Access and Inspection

Customer shall have access to inspect, upon reasonable notice, the Work and the books,
records, and other compilations of data which pertain to this Contract. Records shall be kept
on a generally recognized accounting basis and calculations kept on file in legible form.
Records shall be saved or archived by ESCO for a period of three (3) years after the
termination of this Contract and shall be kept or made available within NewHampshire.

ESCO shall have access, upon reasonable notice to the Customer, to inspect the property
to assess the condition and operation of material and equipment installed.

9.8 Ownership Rights

All drawings, reports and other materials prepared by ESCO specifically in performance of
29 ESCO Contract — Nashua Schools & EEI, Inc.

Board of Aldermen — State-of-the-City-Address Page 2
February 16, 2016

In order to make our economic development efforts more effective, | am focusing on five economic
development priorities — first jobs, particularly technology jobs; second, working to bring commuter rail to
Nashua; third, making sure that Nashua has well qualified people to fill jobs in all sectors of the economy;
fourth, strengthening public education; and finally, energizing our downtown.

Technology, innovation, and entrepreneurship are in Nashua’s DNA. In the nineteenth century our historic
Mills and our Millyard was a major technological center of America’s industrial revolution. The mills and all of
the Millyard facilities were ingeniously organized as one gigantic machine. Back then, the mill workers like my
wife’s grandparents whose names were Costie and Victoria — thousands of them were immigrants - produced
textiles for the whole country and the world. We still have a deep bench of technology expertise in Nashua.
We have BAE Systems, an advanced leader in defense, aerospace, and cyber security which employs 4,500
people. We have numerous tech successes that have been founded by former employees of Digital
Equipment Corporation, the computer systems giant that in the 80s and 90s employed 6,000 people in Nashua
and southern New Hampshire. | want to grow even more tech jobs in Nashua — in our south end, on Simon
Street and in our Millyard.

We are fortunate to have businesses that are established members of Nashua’s culture of innovation. Our
south end is home to Oracle, Dell, Benchmark, Data Gravity, Plexxis, XCube, Simquest and many other tech
businesses. These companies employ thousands of people and their presence in our community continues to
grow. The Flatley Company runs the annual Flatley Challenge in the south end which brings numerous tech
companies into that area. Flatley bought the huge 750,000 square foot former Digital facility which was empty
as recently as 2007. Now over 1,500 people work in that former DEC space. The Flatley Company has plans
to double the size of their tech footprint with as much as 750,000 square feet of new tech R & D space at their
Gateway Hills development in the south end. In our downtown we have Make-It Labs, New Hampshire’s first
makerspace, which provides budding entrepreneurs with the tools they need to generate ideas and prototypes
for products. We need to build upon this progress in the years ahead. | also will be working on a summer jobs
program. A summer job teaches a young person the fundamentals of holding a job and is a good foundation
for a successful life of work. Nashua should have a summer jobs program that includes public and private
sector jobs.

A second economic development priority is commuter rail service for Nashua. Rail will add jobs, connect our
people with the growing biological sciences industry and the industrial internet companies to our south, and
help us to retain and attract the young people that we need for Nashua’s success. General Electric, which has
recently announced that it’s moving its headquarters to Boston, understands the importance of connecting with
Boston’s growing economy and we should learn from their example. The initial groundwork for rail service has
been laid but ultimate success has as much to do with all of us as it has to do with the Mayor’s office or city
government. The $4 million that is necessary for the next steps in the rail project are included in the
Governor's 10-year transportation plan. The Governor has proposed taking these steps in a way that costs the
State of New Hampshire not one dime. The funds consist of federal money that cannot currently be
repurposed for any other use and a state match of $800,000 of toll credits. These credits satisfy state
matching requirements and they have been awarded by the federal government — they are not state dollars.
The State has a $250 million surplus in toll credits, more than it can use, according to the DOT, in the
foreseeable future.

| went to the House Public Works Committee to testify in favor of keeping the rail money in the Governor’s 10-
year plan, and | can tell you that there is a lot more work to be done. | was grateful to other Nashuans who
came to express their support. Tracy Hatch from the Chamber testified effectively again, Sister Buley of Rivier
University attended, and several Nashua residents, like Paul Patti from Ward 8, came in support. Some
members of the house committee expressed opposition to taking this next rail step even though it requires no
expenditure for any state money. This of course is hard to understand.

In the coming months, | will bring together a coalition of businesses in the Nashua region who will work
together to advocate for commuter rail. This effort will be in partnership with the Greater Nashua Chamber of
Commerce, an organization that for years has been advocating effectively for rail service for our city.

this Contract shall become the property of the Customer as needed or upon the termination
of the Contract. Customer shall be entitled to any currently or future available credits other
than those agreed to by the Parties to be assigned to the ESCO, i.e. utility rebates, or rights
of use associated with the reduction of energy use, particular technologies employed in or
any attributes associated with the Work.

9.9 Certificates
ESCO certifies as follows:

1) Certificate of Authorization: If ESCO is a corporation, each person executing this
Contract on behalf of ESCO hereby covenants, represents and warrants that
ESCO is a duly incorporated or duly qualified (if foreign) corporation and is
authorized to do business in the State of New Hampshire (a copy of evidence
thereof to be supplied to the Customer upon request); and that each person
executing this Contract on behalf of ESCO is an officer of ESCO and that he
or she is duly authorized to execute, acknowledge and deliver this Contract
to the Customer, a copy of a corporate resolution to this effect is attached
hereto as Attachment 9 - Corporate Resolution.

2) Tax Compliance Certification: Each person signing this Contract on behalf of
ESCO hereby certifies, under the penalties of perjury, thatto the best of
his/ner knowedge and belief, ESCO has complied with any and all
applicable state taxlaws.

3) Certificate of Non-collusion: The undersigned certifies under penalties of penury
that this Contract has been made in good faith and without collusion or
fraud with any other person. As used in this certification, the word “person”
shall mean any natural person, business, partnership, corporation, union,
committee, club, or other organization, entity of group of individuals.

4) Foreign Corporation: ESCO, if a foreign corporation, hereby certifies that it is in
compliance with Title 7 Chapter 1.1 of the General Laws of New
Hampshire and that the name and address of the resident agent is
included with Attachment 9 - Corporate Resolution.

9.10 Assignment

ESCO shall not assign, transfer, convey, or otherwise dispose of this Contract, or any part
hereof, or its right, title or interest in the same or any part thereof, without the prior written
consent of the Customer provided, however, that Customer may not unreasonably withhold
or delay its consent to an assignment of its interest in this Contract to a corporate affiliate
and provided further that ESCO may without the consent of Customer assign its rights for
payments under this Contract to any financial institution, lender or investor in connection
with a leasing or financing arrangement for the ECMs/OCMs. ESCO shall not otherwise
assign by power-of-attomey, or otherwise, any of the moneys due or to become due and
payable under this Contract, without the prior written consent of the Customer.

9.11 Applicable Law and Severability

30 ESCO Contract — Nashua Schools & EEI, Inc.

This Contract is made and shall be interpreted and enforced in accordance with the laws of
the State of New Hampshire without regard to its conflict of laws provision. If any provision
of this Contract shall be determined to be invalid or unenforceable under applicable law,
such provision shall, insofar as possible, be construed or applied in such manner as will
permit enforcement; otherwise this Contract shall be construed as ifs such provision had
never been made part thereof.

9.12 Independent Contractor

The Contractor shall perform its duties hereunder as an independent contractor and not as
an employee. Neither the Contractor nor any agent or employee of the Contractor shall be
deemed to be an agent or employee of the State of New Hampshire or any agency of
subdivision thereof. Contractor shall be responsible for all payroll taxes and benefits for its
employees and the acts and omissions of its employees, agents, contractors, and
subcontractors.

9.13 Complete Contract

This Contract, together with any documents incorporated herein by attachment as an exhibit
or by reference, shall constitute the entire and exclusive Contract between both parties,
except as may be provided by relevantlaw or regulation, and supersedes and terminates all
prior or contemporaneous arrangements, understandings and agreements, whether oral or
written, and this Contract may not be amended or modified except in writing and executed
by the Customer and ESCO. The RFP and ESCO’s response thereto are incorporated by
reference to the extent not superseded by the Scope of Work or this Contract.

The failure of either ESCO or the Customer to insist upon the strict performance of any term
or condition hereof shall not constitute or be construed as a waiver or relinquishment of
either party’s right to thereafter enforce the same in accordance with this Contract.

9.14 Further Documents

The parties shall timely execute and deliver all documents and perform all further acts that
may be reasonably necessary to effectuate the provisions of this Contract.

9.15 Counterparts

This Contract may be executed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument, and in making proof of this Contract it shall not be necessary to produce or
account for more than one such counterpart.

9.16 Enforceability

ESCO acknowedges that Customer is a government entity that enjoys limited immunity and
other protections under state law from tort claims. As a result, any language in the Contract
that provides for indemnification by Customer, including but not limited to Section 5.17, shall
be enforceable only to the extent permitted by law and shall be limited to the extent of
available proceeds under the insurance policies actually maintained by Customer. Further,
no indemnification by Customer under the Contract shall be deemed or construed to operate

31 ESCO Contract — Nashua Schools & EEI, Inc.