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CITY OF NASHUA, NEW HAMPSHIRE
DIVISION AND DEPARTMENT HEADS
FISCAL YEAR 2021

COMMUNITY DEVELOPMENT DIVISION

Director Sarah Marchant
Building Department Manager William McKinney
Code Enforcement Department Manager Nelson Ortega

Urban Programs Manager Carrie Johnson Schena
Planning Department Manager Matt Sullivan
Transportation Department Manager Camille Correa
SCHOOL DEPARTMENT

Superintendent Garth McKinney

Chief Operating Officer Daniel Donovan

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licensed by the State of New Hampshire. The insurer must have a A.M. Best’s rating of
A or higher. General Liability, Employers’ Liability and Auto Liability policies must
name the City of Nashua as an additional insured and reflect on the certificate of
insurance.

Operator is responsible for filing updated certificates of insurance with the Owner’s Risk
Management Department during the life of the contract.
® All deductibles and self-insured retentions shall be fully disclosed in the
certificate(s) of insurance.
» All aggregates must be fully disclosed on the required certificate of insurance.
= The specified insurance requirements do not relieve Operator of its
responsibilities or limit the amount of its liability to the Owner or other persons,
and Operator is encouraged to purchase such additional insurance, as it deems
necessary.
= Operator is responsible for and required to remedy all damage or loss to any
property, including property of the City, caused in whole or part by Operator or
anyone employed, directed, or supervised by Operator.

Section 9.3 - Payment Of Deductible Amounts. Notwithstanding which party
hereto shall have purchased, or been responsible for the purchase of, any insurance in
respect of the Project or otherwise referred to in this Agreement, Operator shall promptly
pay to Owner any deductible amount related to any claim against or other cost to Owner
covered under any such insurance policy which arose due to the gross negligence of
Operator.

The parties agree that Operator shall have the status of and shall perform all work under
this contract as an independent Operator, maintaining control over all its consultants, sub
consultants, Operators, or subOperators. The only contractual relationship created by this
contract is between the City and Operator, and nothing in this contract shall create any
contractual relationship between the City and Operator’s consultants, sub consultants,
Operators, or subOperators. The parties also agree that Operator is not a City employee
and that there shall be no:

(1) Withholding of income taxes by the City:

(2) Industrial insurance coverage provided by the City;

(3) Participation in group insurance plans which may be available to employees of
the City;

(4) Participation or contributions by either the independent Operator or the City to
the public employee’s retirement system;

(5) Accumulation of vacation leave or sick leave provided by the City;

(6) Unemployment compensation coverage provided by the City.

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ARTICLE 10
INDEMNIFICATION AND LIABILITIES

Section 10.1 - Jndemnification.

(a) Indemnification by Operator. Operator shall indemnify, defend and hold
harmless Owner, the members thereof, and its respective officers, directors, employees,
agents, and representatives (the "Owner Indemnified Parties"), from and against any and
all claims (in whatever form and to the fullest extent permitted by law) arising out of or
in any way connected with, but only to the extent of, any gross negligence, fraud or
willful misconduct of Operator or anyone acting on Operator's behalf or under its
instructions, in connection with this Agreement and Operator's obligations thereunder.
Any costs or expenses incurred by Operator pursuant to its indemnity obligations under
this Section 10.1(a), including the cost of deductibles with respect to the insurance
maintained by Operator or Owner pursuant to Article 9 or losses in excess of such
insurance coverage, shall not constitute a Reimbursable Cost under this Agreement.

(b) Indemnification by Owner. Owner shall indemnify, defend and hold harmless
Operator, its officers, directors, employees, agents, and representatives (the "Operator
Indemnified Parties") from and against any and all claims (in whatever form and to the
fullest extent permitted by law) arising out of or in any way connected with, but only to
the extent of, any gross negligence, fraud or willful misconduct of Owner or anyone
acting on Owner's behalf or under its instructions (other than Operator and its suppliers,
subcontractors, venders, and their subcontractors and vendors and any employee or agent
of the foregoing), in connection with this Agreement and Owner's obligations thereunder.

Section 10.2 - Environmental Liability.

(a) Operator Liability. Operator shall not be responsible for claims directly or
indirectly related to hazardous materials present at the Project before the date of this
Agreement, except to the extent Operator acted with respect to such materials in a grossly
negligent manner. Owner shall defend, indemnify and hold Operator harmless against
such claims, except to the extent such claims arise from Operator's grossly negligent or
intentional acts.

(b) Owner Liability. Owner shall not be responsible for claims directly related to
hazardous materials at the Project arising out of the grossly negligent or intentional acts
of Operator. This provision of the Agreement shall not be construed to require Operator
to take corrective action with respect to any hazardous materials at the Project before the
date of this Agreement.

(c) Governmental Actions. If action is required at the Project to comply with any
applicable environmental laws during the term of this Agreement, Owner (with
Operator's assistance) shall be responsible for the costs of compliance. Costs for such
compliance action shall be incurred by Operator only with Owner's prior written consent,
unless a governmental authority requires Operator to incur such costs and expenses prior
to obtaining such written consent.

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ARTICLE 11
LIMITATIONS OF LIABILITY

Section 11.1 - Limitations Of Liability.

(a) Consequential Damages. Notwithstanding any provision in this Agreement to
the contrary, Operator and Owner each agree not to assert against the other any claim,
demand or suit for consequential, incidental, indirect or special damages arising from any
aspect of the performance or nonperformance of the other party or any third-party
engaged by such other party under this Agreement, and each party hereto waives any
such claim, demand or suit against the other in connection with this Agreement.

(b) Personal Liability Limited. Operator and Owner each understand and agree
that there shall be absolutely no personal liability on the part of any of the members,
partners, officers, employees, directors, agents, or authorized representatives of Owner or
Operator for the payment of any amounts due hereunder, or performance of any
obligations hereunder. Operator shall look solely to the assets of Owner for the
satisfaction of each and every remedy of Operator in the event of any breach by Owner.
Owner shall look solely to the assets of Operator for the satisfaction of each and every
remedy of Owner in the event of any breach by Operator.

(c) Survival. The parties further agree that the waivers and disclaimers of liability,
indemnities, releases from liability, and limitations on liability expressed in this
Agreement shall survive termination or expiration of this Agreement, and shall apply at
all times (unless otherwise expressly indicated), regardless of fault, negligence, strict
liability, or breach of warranty of the party indemnified, released or whose liabilities are
limited, and shall extend to the members, partners, principals, officers, employees,
controlling persons, executives, directors, agents, authorized representatives, and
affiliates of such party.

(d) Exclusivity. The provisions of this Agreement constitute Operator's and
Owner's exclusive liability, respectively, to each other, and Operator's and Owner's
exclusive remedy, respectively, with respect to the Services to be performed hereunder
and Owner hereby releases Operator performing Services hereunder, and Operator hereby
releases Owner performing its obligations hereunder, from any further liability.

ARTICLE 12
TITLE, DOCUMENTS AND DATA

Section 12.1 - Materials And Equipment. Title to all materials, equipment, tools,
supplies, consumables, spare parts and other items purchased or obtained by Operator on
a Reimbursable Cost basis hereunder shall pass immediately to and vest in Owner upon
the passage of title from the vendor or supplier thereof, provided, however, that such
transfer of title shall in no way affect Operator's obligations as set forth in this
Agreement.

Section 12.2 - Documents. All materials and documents prepared or developed by
Operator, its employees, representatives or contractors in connection with the Project or
performance of the Services, including all manuals, data, drawings, plans, specifications,
reports and accounts, shall become Owner's property when prepared, and Operator, its

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agents, employees, representatives, or contractors shall not use such materials and
documents for any purpose other than performance of the Services, without Owner's prior
written approval. All such materials and documents, together with any materials and
documents furnished to Operator, its agents, employees, representatives, or contractors by
Owner, shall be delivered to Owner upon expiration or termination of this Agreement and
before final payment is made to Operator.

Section 12.3 - Review By Owner. All materials and documents referred to in
Section 12.2 hereof shall be available for review by Owner (including its agents or
advisors) at all reasonable times during development and promptly upon completion. All
such materials and documents required to be submitted for approval by Owner shall be
prepared and processed in accordance with this Agreement. However, Owner's approval
of materials and documents submitted by Operator shall not relieve Operator of its
responsibility for the correctness thereof or of its obligation to meet all requirements of
this Agreement.

Section 12.4 - Proprietary Information. Where materials or documents prepared
or developed by Operator or its agents, employees, representatives or contractors contain
proprietary information, systems, techniques, or know-how acquired from third parties by
Operator or others acting on its behalf, such persons or entities shall retain all rights to
use or dispose of such information, provided, however, that Owner shall have the right to
the same to the extent necessary for operation or maintenance of the Project and to
disclosure pursuant to Law.

ARTICLE 13
RESOLUTION OF DISPUTES

Section 13.1 - Resolution Through Discussions. If any dispute or difference of
any kind (a “Dispute") arises between Owner and Operator in connection with, or arising
out of, this Agreement, the Owner and Operator shall attempt to settle such Dispute in the
first instance through discussions. The designated representatives of Owner and Operator
shall promptly confer and exert their best efforts in good faith to reach a reasonable and
equitable resolution of such Dispute.

Section 13.2 — Choice of Law and Forum.

(a) This Agreement is executed and intended to be performed in Nashua, New
Hampshire and the laws of New Hampshire shall govern its construction, interpretation
and effect.

(b) For any judicial proceeding arising from or related to any Dispute, each of
the parties irrevocably consents and agrees that any legal action or proceedings with
respect to this Agreement shall be brought in a court of competent jurisdiction in New
Hampshire, and that, by execution of this Agreement, each party (i) accepts the exclusive
jurisdiction of the aforesaid court, (ii) irrevocably agrees to be bound by any final
judgment (after any and all appeals) of any such court, (iii) irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter have to the
laying of venue of any suit, action, or proceedings with respect to this Agreement brought

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in any such court, and further irrevocably waives, to the fullest extent permitted by law,
any claim that any such suit, action, or proceeding brought in any such court has been
brought in any inconvenient forum, (iv) agrees that service of process in any such action
may be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such party at its notice address set
forth herein, or at such other address of which the other party hereto shall have been
notified and (v) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law.

(c) Should any Dispute result in a judicial proceeding, each of the parties
knowingly, voluntarily, and intentionally waives any right it may have to a trial by jury in
respect of any such proceeding. Furthermore, each of the parties waives any right to
consolidate any action in which a jury trial has been waived with any other action in
which a jury trial cannot be or has not been waived.

Section 13.3 - Continued Performance. During the pendency of any Dispute,
Operator and Owner shall continue to perform their obligations under this Agreement.

ARTICLE 14
MISCELLANEOUS PROVISIONS

Section 14.1 - Assignment. Neither this Agreement nor any interest herein may be
assigned by either party without the prior written authorization of the other party. Any
assignee must agree in writing to be bound by the terms and conditions of this
Agreement.

Section 14.2 - Access to Project.

(a) Owner. Owner and its respective agents and representatives shall have access
at all times to the Project and any documents, materials and records and accounts relating
to Project operations for purposes of inspection and review. Upon the request of Owner,
or its respective agents and representatives, Operator shall make available to such persons
or entities and provide them with access to any operating data and all operating logs.

(b) Cooperation. During any such inspection or review of the Project, each of
Owner, and its respective agents and representatives shall use its reasonable commercial
efforts to cause authorized visitors to comply with Operator's safety and security
procedures and to conduct such inspection and review in a manner which causes minimal
interference with Operator's activities. Operator agrees to cooperate fully with Owner
and its agents and representatives in providing requested information and documentation
for the support of any financial or legal transactions associated with the Project.

Section 14.3 - Force Majeure. If either Owner or Operator is rendered wholly or
partially unable to perform its obligations under this Agreement (other than payment
obligations) due to a Force Majeure Event, the party affected by such Force Majeure
Event shall be excused from whatever performance is impaired by such Force Majeure
Event, provided that the affected party promptly, upon learning of such Force Majeure
Event and ascertaining that it will affect its performance hereunder, (1) promptly gives
notice to the other party stating the nature of the Force Majeure Event, its anticipated

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duration, and any action being taken to avoid or minimize its effect and (ii) uses its
reasonable commercial efforts to remedy its inability to perform. The suspension of
performance shall be of no greater scope and no longer duration than that which is
necessary. No obligations of either party which arose before the occurrence causing the
suspension of performance and which could and should have been fully performed before
such occurrence shall be excused as a result of such occurrence. The burden of proof
shall be on the party asserting excuse from performance due to a Force Majeure Event.

Section 14.5 - Amendments. No amendments or modifications of this Agreement
shall be valid unless evidenced in writing and signed by duly authorized representatives
of both parties.

Section 14.6 - Survival. Notwithstanding any provisions herein to the contrary,
the obligations set forth in Articles 7, 10, and 13, and the limitations of liabilities set forth
in Article 11, shall survive in full force despite the expiration or termination of this
Agreement.

Section 14.7 - No Waiver. It is understood and agreed that any delay, waiver or
omission by Owner or Operator with respect to enforcement of required performance by
the other under this Agreement shall not be construed to be a waiver by Owner or
Operator of any subsequent breach or default of the same or other required performance
on the part of Owner or Operator.

Section 14.8 - Notices. All notices and other communications (collectively
"Notices") required or permitted under this Agreement shall be in writing and shall be
given to each party at its address set forth in this Section 14.8 or at such other address as
hereafter specified as provided in this Section 14.8. All Notices shall be (i) delivered
personally or (ii) sent by electronic mail registered or certified mail (return receipt
requested and postage prepaid), or (iii) sent by a nationally recognized overnight courier
service. Notices shall be deemed to be given (A) when transmitted if sent by electronic
mail(provided the transmittal is confirmed), or (B) upon receipt by the intended recipient
if given by any other means. Notices shall be sent to the following addresses:

To Operator:

By mail:

Essex Power Services, Inc.
c/o Essex Hydro Associates
55 Union St. 4" Floor
Boston, MA

By electronic mail:

Administrative or Legal issues: alocke@essexhydro.com

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Operations/Maintenance: dsherman@essexhydro.com
with a copy to: alocke@essexhydro.com

To Owner:
By mail:

City of Nashua

Attention: Deb ChisholmWaterways Manager
229 Main Street

Nashua, New Hampshire 03060

With a copy to:

City of Nashua

Office of Corporation Counsel
Attention: Celia K. Leonard, Esq.
229 Main Street

Nashua, New Hampshire 03060

By electronic mail:
ChisholmD@nashuanh.govleonardc@nashuanh. gov

Section 14.9 - Fines And Penalties. If during the term of this Agreement any
governmental or regulatory authority or agency assesses any fines or penalties against
Operator or Owner arising from Operator's failure to operate and maintain the Project in
accordance with applicable Laws without Owner's prior written consent, such fines and
penalties shall be the sole responsibility of Operator and shall not be deemed a
Reimbursable Cost.

Section 14.10 - Representations And Warranties. Each party represents and warrants to
the other party that:

(a) such party has the full power and authority to execute, deliver and perform this
Agreement and to carry out the transactions contemplated hereby;

(b) to the best of such party's knowledge, the execution, delivery and performance
by such party of this Agreement, does not and will not materially conflict with any legal,
contractual, or organizational requirement of such party; and

(c) there are no pending or threatened legal, administrative, or other proceedings
that if adversely determined, could reasonably be expected to have a material adverse
effect on such party's ability to perform its obligations under this Agreement.

Section 14.11- Counterparts. The parties may execute this Agreement in
counterparts, which shall, in the aggregate, when signed by both parties constitute one
instrument. Thereafter, each counterpart shall be deemed an original instrument as
against any party who has signed it.

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The following schedule on the next page was developed by VHB and prescribes in detail the
workflow for the environmental permitting

Please note the following highlighted dates:
e¢ NH DES Wetland Permit on February 9"
¢ NH DES Permit Application Submittal on April 13"
¢ A Section 106 Determination of Eligibility by April 13"
¢ e106 Determination of Effect by May 1*

* NHDES 106 Mitigation/MOA Executed on August 8"

Section 14.12 - Partial Invalidity. If any term, provision, covenant or condition
of this Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the rest of this Agreement shall remain in full force and effect and in no
way be affected, impaired or invalidated.

Section 14.13 - Captions. Titles or captions of Sections contained in this
Agreement are inserted as a matter of convenience and for reference, and do not affect
the scope or meaning of this Agreement or the intent of any provision hereof.

Section 14.14 - Vendor's Warranties. For Owner's benefit, Operator shall obtain
from sellers of equipment, material, or services (other than the Services), warranties
against defects in materials and workmanship to the extent such warranties are reasonably
obtainable, and, to the extent of any such warranties actually obtained, Owner releases
Operator from any further liability arising in respect of such equipment, material or
services (other than the Services) to the extent such liability is covered by any such
warranty. Operator itself shall not be liable for any such warranties, or for any defects or
damage caused by such equipment, material or services (other than the Services). Upon
Owner's request, Operator agrees to take such steps as are necessary, short of litigation, to
enforce said warranties. Each such warranty shall be enforceable by Owner for Owner's
benefit or assignable by Operator to Owner without any further action or consent by or on
the part of any third party. Unless otherwise requested, Operator shall administer such
warranties and immediately notify Owner of any defects discovered or suspected that
may be covered by such warranties. When requested, Operator shall assign any such
warranty to Owner and assist Owner with the administration and enforcement of such
warranty, or, if such warranty is not assignable to Owner, assist Owner with the
administration and enforcement of such warranty.

Section 14.15 — Fiscal Contingency. All payments under this contract are
contingent upon the availability to the Owner of the necessary funds. This contract shall
terminate and the Owner’s obligations under it shall be extinguished at the end of any
fiscal year in which the Owner 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 Operator with a right of payment
over any other entity. Any funds obligated by the Owner under this contract that are not
paid to Operator shall automatically revert to the Owner’s discretionary control upon the
completion, termination, or cancellation of the agreement. The Owner shall not have any
obligation to re-award or to provide, in any manner, the unexpended funds to Operator,
except for those payments which are owed to the Operator for all Reimbursable Costs
incurred by Operator up to and including the date it is determined by the Owner that the
necessary funds are not available (the “Lack of Funding Date”). Further, the Operator
shall be paid unpaid Annual Administrative Fees to and including the Lack of Funding
date. Operator shall have no claim of any sort to the unexpended funds following the
Lack of Funding Date. I don’t have a problem with the intent of this para., but I think
poorly worded. It says that obligated funds will revert to the city, why if they’re

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