Search

or failure to perform its obligations under this Contract, then ESCO will notify Customer in
writing of the existence, extent of, and reasons for such delay. ESCO shall have no claim for
additional compensation on account of such delays but ESCO and Customer may extend
the contract time by revision to the Scope of Work for such reasonable time as they shall
agree. If Customer determines that a delay described in the first sentence of this section will
result in ESCO not completing the Work for a period of ninety (90) days or more, then
Customer or ESCO may terminate this Contract and the Customer shall pay ESCO for the
portion of the Work completed up to the Contract termination date.

5.9 Equipment Location andAccess

The parties understand and agree that the Premises will be occupied during construction.
ESCO shall take all necessary precautions to ensure the public safety and convenience of
the occupants during construction and Customer shall cooperate with ESCO’s reasonable
requirements and related requirements described in Attachments 2 and 4. ESCO shall
complete the Work in accordance with the schedule in Attachment 2 - Maintenance and
Service Agreement. ESCO shall use sufficient personnel and adequate equipment to
complete the Work pursuant to Section 5.01.

The Work must be completed in a continuous uninterrupted operation on the days and
between the hours specified in Attachment 7 - Additional Requirements, unless otherwise
authorized in writing by the Customer. No Work is to be done on holidays, Saturdays, or
Sundays except as contemplated in Attachment 7 - Additional Requirements, the Scope of
Work in order to maintain the Standards of Comfort described in Attachment 8 - Standards
of Comfort or in the event of emergencies unless otherwise approved by Customer. The
Customer will provide access to the Premises at the times agreed upon and make all
reasonable provisions for ESCO to enter the Premises where Work is to be performed so
that Work may be performed in an efficient manner.

ESCO is responsible for the security of partially completed work and for uninstalled
materials or equipment stored at Customer properties. Only materials and equipment
intended and necessary for immediate use shall be brought into the buildings. Equipment
and unused materials shall be removed from each building by the end of each workday
unless overnight storage is provided for within the Scope of Work. The

Customer shall provide if available, without charge, a mutually satisfactory location or
locations for the storage and operation of materials and equipment and the performance of
the Work, including a location for staging and mobilization.

Flammables and combustibles shall be stored only in accordance with the requirements of
relevant statutes, regulations, NFPA standards and Customer procedures. In the eventthat
the Customer is unable to provide a satisfactory location for the storage of flammables and
combustibles, then ESCO shall provide and pay for suitable storage.

5.10 Permits and Fees

ESCO shall secure and pay for building and other permits and governmental fees, licenses,
and inspections necessary for proper performance and completion of the Work that are
required by federal, state, or town or city governments. In the event that fees for any permits
are reduced or waived by request, standing or intervention of the Customer, then, at the
Customer’s option, the amount of the savings of the fee shall be deducted from the line item

14 ESCO Contract — Nashua Schools & EEI, Inc.

Conway ice Arena

As you all know Conway has expressed interest in building a second sheet of

ice. Because of the future consolidation of public works, the opportunity is there to
make this a reality. We have had several meetings to discuss how that would work. We
have discussed mimicking the agreement with the YMCA, and the need for them to
cover the costs of us taking down the street garage and the need for the city to
maintain gas pumps and the salt shed (due to the important center of the city location)
and if necessary the traffic building on site. This may require some site modifications to
effectively and safely define city space vs recreation space. The cost that has been
discussed is $500,000 plus rent similar to the YMCA. It will be important and timely to
have on-going discussions.

Telecommunications Project Executive Summary

A Request for Proposal (RFP) has been published for this project as of January 6, 2016.
This RFP is issued with the aim of selecting a single vendor the opportunity to deliver a
City-wide Telecommunications strategy for the City of Nashua, NH.

The primary intention is to identify the products and services available in the market that
will satisfy any legal obligations and the commercial realities of all communications for
a municipality. The Project Team now invites potential suppliers to provide information
about their likely solution and service.

Creative solutions and the use of modern technology, parts of which need not have
been previously used in City government, are welcome. However, all aspects must use
proven, robust and easily maintainable components that integrate seamlessly with
other relevant City systems and processes.

The current Communications infrastructure has been supplied by a number of disparate
suppliers each requiring effort to manage and maintain. The City of Nashua, NH is
seeking economies of scale by combining all of the facilities into a single supplier
contract.

Goals of the project

The City of Nashua, NH wishes to simplify the management of its voice infrastructure
throughout the City. It also wishes to further the implementation of IP based telephony.

The goal of this project is for City of Nashua, NH to have a safe, secure and resilient
messaging infrastructure that has the following attributes.

* Diverse routing of voice connections
. Implementation of a Fax solution (inbound and outbound) to replace all
individual fax machines.

in the Work budget and added to the contingency line item or the Contract Price reduced by
that amount.

5.11 Utilities

The Customer shall provide and pay for water, heat, fuel and utilities consumed by ESCO or
in any additional equipmentthat may be used by ESCO during performance of the Work,
including, for example, generators. ESCO shall install and pay for any facilities or
modifications not already in existence that are necessary to access such water, heat, and
utilities during the Work.

5.12 Concealed or Unknown Conditions

lf ESCO finds conditions during the Work that are subsurface or otherwise concealed
physical conditions that differ materially from those indicated on the drawings or are
unknown physical conditions of an unusual nature that differ materially from those
conditions ordinarily found to exist and generally recognized as inherentin similar
construction activities, ESCO shall notify Customer of such conditions promptly, prior to
significantly disturbing the same, and in no event later than one (1) business day after first
observing the conditions.

Such conditions may include, but are not limited to, water damage, termite damage, or
structural building defects. If such conditions differ materially and cause an increase in
ESCO’s cost of, or time required for, performance of any part of the Work, ESCO shall
submit a written estimate of the material and labor cost increase and time delay. If the
Customer concurs wih the need, cost estimate, and time delay, Customer and ESCO shall
make an equitable adjustmentin the Contract Price or Time for Performance and Final
Completion, or both. Pursuant to Section 5.08 above, ESCO shall not be entitled to
damages for delay beyond Customers control.

5.13 Casualty, Condemnation, Damage

If any fire, flood, other casualty, or condemnation renders a portion of any property
described in Attachment 1 - Final Investment Grade Audit unsuitable for habitation or
destroys a substantial part of the area within which the Work is to be performed or which
the Work affects, the Customer and ESCO may terminate or modify this Contract by mutual
agreement. The Customer shall pay ESCO for all Work completed to the date of
termination. If any materials or equipment are damaged by the negligence or willful
misconduct of an employee, agent or invitee of Customer, Customer shall repair or replace
said item within a reasonable period of time, or, adjust the Contract Price to pay for repair or
replacement or adjust Time for Performance and Final Completion, or both.

5.14 Standards of Service and Comfort

The facility performance requirements of service and comfort applicable to the Premises for
heating, cooling, hot water, ventilation and lighting are stated in Attachment 8 - Standards of
Comfort (“Standards of Comfort”) and shall apply throughout the Contract. If ESCO is
unable to meet these Standards of Comfort for any reason, the Customer and ESCO shall
mutually agree upon an appropriate adjustment to Energy Savings, the price paid for the
Work or any corrective measures that shall be provided and paid for byESCO.

15 ESCO Contract — Nashua Schools & EEI, Inc.

5.15 Shutdown of Services

ESCO hereby acknowedges that continuous operation of services, including but not limited
to heat, water, domestic hot water, electricity, gas, sanitary facilities, elevators, fire alarms
or protections, and access to the property, or common areas is essential to the operation of
the Customer's properties as reflected in the Standards of Comfort. If any such service, or
access to the property, or any common area is to be discontinued for any period of time in
order to perform the Work (including actions described within the Scope of Work), ESCO
shall give the Customer as much notice in writing as is practicable, but in no event less than
seven (7) days in which event the Customer shall, by written response, approve
unconditionally or with conditions such shutdown of services and the timing thereof.

The use of any portion of the Premises by ESCO for parking or staging areas for the Work
shall be expressly approved by Customer prior to the Commencement of the Work. Such
conditional approval may include a requirement for ESCO to provide and pay for temporary

services, may limit the time period for which services or access may be shut down, or may
require other actions, accommodations or expenditures on the part of ESCO. With respect
to fire alarm or other fire protections, ESCO shall also notify the local fire department of any
shutdown of service and notify the fire department when such service is restored.

The Customer acknowedges that such shutdowns may be necessary to perform the Work
from time to time and will not unreasonably withhold approval. The Customer agrees to
communicate with occupants on plans to shut down services or access and temporary
measures, if any, which will be made in such circumstances.

5.16 Indemnification and Limitation of Liability (Non-Patent or Copyright)

ESCO shall be responsible for the Work and take all precautions for preventing injuries to
persons and property in or about the Work and shall bear the costs of all losses or damages
resulting from or on account of the Work. ESCO shall pay or cause payment to be made for
all labor performed or furnished and for all material used or employed in carrying out this
Contract. ESCO shall assume the defense of, indemnify and hold harmless the Customer
and its officers and agents from all claims relating to:

1) Labor performed or furnished and materials used or employed for the Work;

2) Injuries to any person received or sustained by or from ESCO and its employees,
subcontractors and its employees, any agents, suppliers and invitees indoing
the Work, or as a consequence of any improper materials, implements of
labor used or employed therein; and

3) Any act, omission, or neglect of ESCO and any employees, subcontractors
and employees, agents, suppliers and invitees.

5.17 Indemnification (Patent and Copyright)

(a) ESCO will, at its own expense, defend or at its option settle any suit or proceeding
brought against Customer in so far as itis based on an allegation that any Work(induding
parts thereof), or use thereof for its intended purpose, constitutes an infringement ofany
16 ESCO Contract — Nashua Schools & EEI, Inc.

United States patent or copyright, if ESCO is promptly provided Notice and given authority,
information, and assistance in a timely manner for the defense of said suit or proceeding.
ESCO will pay the damages and costs awarded in any suit or proceeding so defended.
ESCO will not be responsible for any settlement of such suit or proceeding made without
its prior written consent. In case the Work, or any part thereof, as a result of any suit or
proceeding so defended is held to constitute infringement or its use by Customer is
enjoined, ESCO will, at its option and its own expense, either: (i) procure for Customer the
right to continue using said Work; (ii) replace it with substantially equivalent non-infringing
Work; or (iii) modify the Work so it becomes non-infringing.

(b) ESCO will have no duty or obligation to Customer under Section 5.17(a) to the extent
that the Work is: (i) modified by Customer or its contractors after delivery; or, (ii) combined
by Customer or its contractors with items not furnished hereunder and by reason of said
design, instruction, modification, or combination a suit is brought against Customer. In
addition, if by reason of such modification or combination, a suit or proceeding is brought
against ESCO, unless expressly prohibited by law, Customer shall protect ESCO in the
same manner and to the same extent that ESCO has agreed to protect Customer underthe
provisions of Section 5.17(a) above.

(c) THIS SECTION 5.17 IS AN EXCLUSIVE STATEMENT OF ALL THE DUTIES OFTHE
PARTIES RELATING TO PATENTS AND COPYRIGHTS, AND DIRECT OR
CONTRIBUTORY PATENT OR COPYRIGHT AND OF ALL THE REMEDIES OF
CUSTOMER RELATING TO ANY CLAIMS, SUITS, OR PROCEEDINGS INVOLVING
PATENTS AND COPYRIGHTS. Compliance with Section 5.17 as provided herein shall
constitute fulfillment of all liabilities of the parties under the Contract with respect to
intellectual property indemnification.

17 ESCO Contract — Nashua Schools & EEI, Inc.

6. Performance and Evaluation Subsequent to Work
6.1 Workmanship and Equipment Warranty

ESCO hereby assigns to the Customer all warranties of all equipment and materials used in
the Work. Attachment 2 - Maintenance and Service Agreement lists equipment and material
warranties, however, failure to include any equipment or materials having a warranty
neither excludes said equipment or materials from the provisions of this section nor ESCO’s
responsibilities hereunder. ESCO shall provide Customer with a list of all serial numbered
items of equipment installed as part of the Work at or before the Project Acceptance.

ESCO warrants that, for a period of one year from a date of a Certificate of Substantial
Completion (“Warranty Period”), the relevant equipment, materials and Work shall be new
and free from defects in material, manufacture, workmanship and performance as set forth
by the catalogs, bulletins and specifications included within ESCO’s Response to the RFP or
the Scope of Work, whichever is appropriate. If such defect occurs within the Warranty
Period, ESCO shall correct and pay for correction of all defects including replacement or
repair and all parts and labor.

ESCO warrants that, for any equipment or materials used in the Work with a warranty period
in excess of one year, ESCO shall correct all defects including replacement or repair
provided that ESCO’s obligation is limited to the terms of the warranty and provided further
that the Customer, by mutual consent wth ESCO, may correct said defect.

No warranty liability shall attach to ESCO until Work has been substantially completed.
ESCO’s warranties expressly exclude any remedy for damage or defect caused by the
Owner’s abuse, improper operation, unapproved modifications or improper repairs.

Customer may correct any defect and ESCO shall reimburse Customer for its reasonable
expenses incurred in performing such correction subject to any limitations contained within
this section if ESCO fails to correct defective equipment, materials or Work within a
reasonable period of time, but no less than seventy-two (72) hours, upon written notice from
the Customer unless such defect is a condition deemed to endanger health or safety, is a
fire hazard or would otherwise render the Premises unfit for occupancy.

Conditions which are deemed to endanger health or safety are applicable provisions of the
state or local sanitary code, fire hazards under applicable fire prevention regulations and
codes and other emergency conditions that shall be addressed promptly and jointly, if
necessary, by ESCO and Customer assuring thatimmediate precautions are taken to avoid
risk to persons or property, immediate measures are taken to prevent deterioration of
condition, occupants are alerted to any dangers or hazards, and steps for final correction
taken within twenty-four (24) hours. Customer may take reasonable steps to protect the
Premises or the Work on an emergency if itis not possible or reasonable to notify ESCO
before taking such actions.

THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE ARE IN LIEU OF AND
EXCLUDE ALL OTHER WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FORA PARTICULAR PURPOSE, WHICH, TO THE EXTENT PERMITTED BY
LAW, ARE HEREBY EXPRESSLY DISCLAIMED. THE LIMITED EXPRESS WARRANTIES

18 ESCO Contract — Nashua Schools & EEI, Inc.

AND REPRESENTATIONS SET FORTH IN THIS CONTRACT MAY ONLY BE MODIFIED
OR SUPPLEMENTED IN A WRITING EXECUTED BY A DULY AUTHORIZED
SIGNATORY OF EACH PARTY.

6.2 Evaluation of Savings Achieved

ESCO shall also prepare and deliver to Customer an annual report of the savings achieved
at the Premises for each of the twelve-month periods specified in Attachment 4 - M& V Plan
in a form suitable for review and subsequent forwarding to the Customer and any consultant
or auditor designated by Customer. ESCO shall include in such report, to the extent
practicable, emissions reduction quantities or similar data attributable to or resulting from the
Work and shall advise Customer on opportunities to achieve monetary benefits from such
credits or attributes which shall be the property of Customer.

The Customer shall notify ESCO of substantive changes in the properties or the operation
or occupancy thereof which could affect energy or water use. Such substantive change shall
be agreed upon by the parties and incorporated in the determination and evaluation of
savings. The obligations under this Article are also described in Attachment 4 - M& V Plan.
ESCO shall be compensated at the rate described in Attachment 3 - Project Cost for
maintaining, monitoring and verification and reporting services.

6.3 Performance Guarantee

ESCO hereby guarantees the level of savings for the time periods and to the level described
in Attachment 4 - M & V Plan (“Performance Guarantee”). The Performance Guarantee
commencement date shall not occur and the Customer shall not be required to accept the
Work unless and until all equipment installation at the Premises and training is completed in
accordance with the terms and conditions of this Contract, including, without limitation, the
satisfaction of all claims for labor and materials. In the event that Final Acceptance occurs
after the commencement date of the Performance Guarantee (See Attachment4-M& V
Plan), then the parties will mutually agree on a modified Attachment 4 - M & V Plan to
accommodate the delay in beginning the Performance Guarantee.

The Performance Guarantee is to be achieved as a result of the Work and theECMs/OCMs
and the resulting savings, if any, shall be calculated in accordance with the procedures
described in Attachment 4 - M& V Plan. The Performance Guarantee is subject to the
satisfactory performance by Customer of all of its obligations under this Contract. In the
event that this Contract is terminated by an uncured Event of Default by Customer, the
Performance Guarantee shall be cancelled. The Performance Guarantee shall remain in
effect for a term not less than the time required to finance the Work or otherwise specified
in this document.

The Performance Guarantee shall thereafter terminate. In any event, ESCO and Customer
have structured the Energy Savings and the Performance Guarantee to be sufficient sothat
the conversion to US Dollars results in amounts sufficient to exceed any and all payments
(In whole or in part) required by Customer in connection with the acquisition of equipment
to be installed by ESCO pursuant to this Contract, the Customer’s lease or financing
obligations and any related agreements associated with the execution of this Contract or
the implementation of the Work.

ESCO shall have no liability to continue providing measurement and verification services or
19 ESCO Contract — Nashua Schools & EEI, Inc.

to honor the Performance Guarantee with respect to any portion of the Work in the event the
Customer: (i) fails to authorize a reacceptance test or recommissioning that ESCO
reasonably deems necessary in order to prevent a savings shortfall with respect to such
portion of the Work; (ii) fails to provide access to a site were such portion of the Work was
performed as required herein, (iii) fails to service and maintain all equipment associated with
such portion of the Work in accordance with the manufacturers’ recommendations in order
to prevent a savings shortfall; or (iv) cancels or terminates the Continuing Service
Program/Contract (See Attachment 2 — Maintenance and Service Agreements).

6.4 Performance Remedies

Energy-related cost savings shall be measured and/or calculated as specified in the
measurement and verification plan provided in Attachment 4 - M& V Plan or as may be
mutually agreed upon in writing. In the event that the energy and cost savings achieved
during such twelve-month period is less than the corresponding Guaranteed Savings for the
same annual period as reflected in Attachment 4 - M & V Plan while the Performance
Guarantee is in effect, ESCO shall pay to Customer within thirty (30) days of the delivery of
such report an amount equal to the deficiency.

In the event of such deficiency, ESCO reserves the right, subject to Customer’s approval,
which shall not be unreasonably withheld, to implement additional operation improvements
or conservation measures, at no cost to Customer, that will improve energy savings in
future years of Performance Guarantee.

All costs associated with having the ECMs/OCMs repaired, replaced, adjusted or re-
engineered and re-installed shall be paid by ESCO and presentation of evidence of such
payment shall be a condition to any Customer approval of such work. If during any twelve-
month period specified in Attachment 2 - Maintenance and Service Agreement and
Attachment 4- M & V Plan the savings achieved are greater than the Guaranteed Energy
and Cost Savings, such excess shall be retained by the Customer and not applied to
ESCO’s requirement to deliver Energy Savings beyond the stated year.

6.5 Security for Performance Guarantee — Not Included

6.6 Independent Audit — Not Included

6.7 Other Performance Terms and Conditions

All actions taken under Section 6, including but not limited to correction of warranties,
remedy of performance shortfalls and maintenance of equipment by ESCO, shall conform

with sections 5.02 through 5.17 inclusive.

6.8 Contract Closeout Responsibility

At the termination of the Contract, ESCO shall perform a walk-through survey of the
properties covered by this Contract and prepare an assessment of the condition of the
equipment and materials installed as part of the Work and subsequent thereto under this
Article. This closeout report shall include but not be limited to the following, as appropriate:

1) Operating and maintenance recommendations during the remaining life of

20 ESCO Contract — Nashua Schools & EEI, Inc.

21

equipment installed if different from requirements furnished upon installation or
if changes in technology or procedures affecting the equipment could extend
the useful life of the equipment or increase the conservation efficiency,

2) An overview of new technology or additional conservation measures for
the Customer to consider.

ESCO Contract — Nashua Schools & EEI, Inc.

7. Obligations of the Parties
7.1 Qbligations of ESCO

ESCO acknowedges and agrees that ESCO’s obligations hereunder are in the capacity of
providing professional services for the purposes described in the Preamble to this Contract
and in said capacity ESCO is expected to provide energy, water and operational auditing,
engineering, design and monitoring services, construction management including general
contracting as necessary, and other related services as solicited in the RFP and as may
normally be incidental to these types of professional services. ESCO acknowedges and
agrees that any other functions, including, butnot limited to, manufacturer’s representative,
dealer or distributor of equipment, materials or commodity specified herein or as
subcontractor, or any ownership interest in whole or in part, or financial affiliation with a
company that performs such other function shall constitute a conflict of interest which shall
constitute a material breach of this Contract unless 1) fully disclosed in ESCO’s Response
to the RFP, and 2) accepted by the Customer under terms which are specified in the Scope
of Work. ESCO acknowedges and agrees that this paragraph applies to all its officers and
employees.

The following events or conditions shall, without limitation, constitute a breach by ESCO
and shall give the Customer the right, without an election of remedies, to proceed pursuant
to Section 9.01 and/or terminate this Contract by delivery of written notice declaring
termination, upon which event ESCO shall be liable to the Customer for any and all
damages sustained by the Customer:

1) Any attempt by ESCO to increase the Contract price for reasons other than
those related to changes in the Work pursuant to Section 5.03;

2) Any failure by ESCO to provide annual monitoring reports pursuant to Section
6.02 provided that such failure continues for ten (10) days after notice from
Customer;

3) Any failure by ESCO to make payments pursuant to the Performance
Guarantee provided that such failure continues for three (3) business days
after notice from Customer;

4) Any representation or warranty furnished by ESCO in ESCO’s Response to the
RFP, the Scope of Work or this Contract which is false or misleading in
any material respect wnen made;

5) Any state, county or federal license, authorization, waiver, permit, qualificationor
certification by statute, ordinance, law or regulation to be held by ESCO to
provide the goods or services required by this Contract is denied, revoked,
debarred, excluded, terminated, suspended, lapsed or not renewed;

6) The filing of bankruptcy by ESCO or by ESCO’s creditors, an involuntary
assignment for the benefit of creditors, or the liquidation of ESCO;

7) Any failure by ESCO to perform or comply with any other material term or
condition of this Contract, including breach of any covenant containedherein,
provided that such failure continues for thirty (30) days after written notice to
ESCO demanding that such failure be cured or, if cure cannot be effected in

22 ESCO Contract — Nashua Schools & EEI, Inc.