Search

9.3 subject to any applicable legislation, the title to any and all materials, equipment and supplies
provided by the Supplier for incorporation into the Work are and will be free from any and all claims,
liens, charges, encumbrances or security interests if any kind whatsoever; and

9.4 the Supplier owns or has the right to use all intellectual property rights, licenses, franchises, and
permits necessary to perform the Work without conflict with the rights of others.

9.5 there are no pending or threatened litigation or claims against the Supplier that would affect or
prevent the Supplier from performing its obligations under this Contract

10 Purchaser's Representations and Warranties
Purchaser represents and warrants to the Supplier that:

10.1 the Purchaser has the skills, experience, resources, personnel and capability to expeditiously and
diligently perform Purchaser's obligations in a timely and professional manner under the Contract

10.2 the Purchaser has or will obtain all necessary permits, licenses, and authorizations and has paid all
the necessary premiums or fees necessary to carry on its business;

10.3 the Purchaser has the necessary financial resources to meet the obligations outlined in the Contract
Documents and, upon request of the Supplier, shall provide Supplier with reasonable evidence of
such financial resources.

10.4 there are no pending or threatened litigation or claims against the Purchaser that would affect or
prevent the Purchaser from performing its obligations under this Contract.

11. Receipt of and Addresses for Notices

Communications in writing between the Parties shall be deemed to have been received by the addressee
on the date of delivery if delivered by hand or sent by courier, facsimile or registered mail to the
individual or to a member of the firm or to an officer of the corporate for whom they are intended and if
sent by regular mail shall be deemed to have been delivered within five (5} days of the date of mailing
when addressed as follows:

The Purchaser at: City of Nashua
229 Main Street
Nashua, NH 03060
Attn: Deb Chisholm

With a copy to Celia K. Leonard
Deputy Corporation Counsel
City of Nashua

229 Main Street

Nashua, NH 03060

The Supplier at: Mavel Americas, Inc.
121 Mount Vernon Street
Boston, MA 02108
Attn: — Jeanne Hilsinger

12 Succession

The Contract Documents shall inure to the benefit of and be binding upon the Parties hereto, their
respective heirs, legal representatives, successors and assigns.

13 Jurisdiction

This agreement shall be governed exclusively by the laws of the State of New Hampshire and any claim or
action brought relating to this contract, the work performed or contracted te be performed thereunder,
or referable in anyway thereto shail be brought in Hillsborough County (New Hampshire} Superior Court
Southern Judicial District or in the New Hampshire 9th Circuit Court—Nashua and not elsewhere.

14 Force Majeure

Except for a duty to make timely payments hereunder, neither party shall be liable in damages or have
the right to terminate this Contract for any delay or default in performing hereunder if such delay or
default is caused by conditions solely beyond its reasonable control as specified in the General Conditions
{Part 1, Clause 29}.

15 Liquidated Damages and Limitation of Liability
15.1 Liquidated Damages for Deiay

15.1.1 Purchaser and Supplier recognize that time is of the essence of this Agreement and that
Purchaser will suffer financial loss if the Equipment is not delivered to the Project Site
within the times specified in Article 6 of this Agreement, plus any extensions thereof
allowed in accordance with the Contract Documents.

15.1.2 Further, Purchaser and Supplier recognize that it will be difficult to quantify the actual
damages, expenses and costs that the Purchaser will sustain if complete, acceptable
Equipment is not delivered on time. Accordingly, instead of requiring such proof,
Purchaser and Supplier agree that as liquidated damages for delay (but not as a penalty}
and as sole remedy for delay, Supplier shall pay Purchaser $5,000 (five thousand US
dollars} per day for the first sixty (60) days, and $10,000 (ten thousand US dollars) for
each subsequent day that the delivery of acceptable Equipment extends beyond the
deadline for such Equipment as specified in Paragraph 6 above.

15.1.3 Supplier will only be obligated to pay these liquidated damages for delay outlined above
if the cause of such delay is solely due to the Supplier and Purchaser has complied with
all of its material obligations under the Contract.

15.1.4 [In the event that the Supplier fails to pay Purchaser the specified liquidated damages
amount within thirty (30) days of Supplier being notified of said damages, Purchaser
may deduct the amount of the assessed liquidated damages from any remaining
payments and retention withheld pursuant to Article 8 above.

15.1.5 The maximum amount that Purchaser will be entitled to receive for Liquidated Damages
for delay will be one hundred percent (100%) of the Contract Price.

15.2 Performance Guarantee and Associated Remedies

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

2. WORK TO BE PERFORMED Except as otherwise provided in this contract, Professional Engineer
shall furnish all services, equipment, and materials and shall perform all operations necessary and
required to carry out and perform in accordance with the terms and conditions of the contract the
work described.

DESCRIPTION OF WORK:

PLEASE SEE ATTACHED SCOPE OF WORK UNDER EXHIBIT B (APPROACH TO WoRK)

3. PERIOD OF PERFORMANCE. Professional Engineer shall perform and complete all work by April
30, 2023 which date shall only be altered by mutually approved written agreement to extend
the period of performance or by termination in accordance with the terms of the contract.
Professional Engineer shall begin performance upon receipt of an Executed Contract and a valid
Purchase Order issued from the City of Nashua.

4, COMPENSATION. Professional Engineer agrees to perform the work for a total cost not to
exceed

($27,550.00)

The Contract Sum shall include all items and services necessary for the proper execution and
completion of the Work.

Unless Professional Engineer has received a written exemption from the City of Nashua,
Professional Engineer shall submit monthly requests for payment for services performed under
this agreement in accordance with the values stated in the Agreement. Such requests shall be
supported by such data substantiating the Professional Engineer’s right to payment as the City of
Nashua may reasonably require. Professional Engineer shall submit monthly requests for payment
for services performed under this agreement shall be submitted as follows:

> Electronically via email to VendorAPInvoices@NashuaNH. gov

OR
> Paper Copies via US Mail to:

City of Nashua, City Hall
Accounts Payable

229 Main Street

Nashua, NH 03060

Please_do not submit invoices both electronically and paper copy.

In addition, and to facilitate the proper and timely payment of applications, the City of Nashua
requires that all submitted invoices contain a valid PURCHASE ORDER NUMBER.

Requests for payment shall be submitted no later than fifteen (15) days after the end of each month
and must include a detailed summary of the expenditures reported in a form that supports the

AG 2 of 4

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.