MASSACHUSETTS DEVELOPMENT FINANCE AGENCY

REQUEST FOR PROPOSALS

FOR

OPERATION AND MAINTENANCE SERVICES

FOR THE

DEVENS ELECTRIC UTILITY SYSTEM

5/20/2019

PROJECT # 09-008

2

1. BACKGROUND

The Massachusetts Development Finance Agency (“MassDevelopment” or “Agency”) is a body politic and corporate created by the Commonwealth of Massachusetts to help foster economic development across the Commonwealth. The Agency is governed by an 11-member Board of Directors. MassDevelopment prides itself on a team-oriented, solutions-based approach to economic development. The Agency provides its clients with entrepreneurial solutions to complex real estate projects and financing options that create economic opportunities in Massachusetts. Our staff is located in offices throughout the Commonwealth. Chapter 498 of the Acts of 1993, as amended, created the Devens Regional Enterprise Zone for the redevelopment of the former Fort Devens. Pursuant to the statute, MassDevelopment is responsible for overseeing the implementation of a reuse plan for redevelopment of the former Fort Devens. MassDevelopment has acquired ownership of land and facilities comprising the Main and North Posts of the prior Fort Devens, located within the historic boundaries of the Towns of Ayer, Harvard, and Shirley. MassDevelopment took responsibility for the utility services at the Devens Regional Enterprise Zone (hereinafter "Devens"). MassDevelopment, through the Devens Utilities Department, provides electric services as well as water and sewer services to approximately 500 residents, institutions, and businesses in Devens. The electric system consists of five (5) 69kV/13.8kV electrical substations, 80 miles of 13.8kV distribution lines, and 4 miles of 69kV transmission lines. The peak load demand of the system is ~ 32 MW’s. The Devens electrical distribution system is connected to regional transmission lines at its West Main substation. All of the electricity used each day enters the Devens distribution system at this point. Through this Request for Proposals (“RFP”) process, MassDevelopment is seeking Operation & Maintenance services for its existing electric distribution system in Devens as well as any potential expansion of its distribution system. 2. PROJECT DESCRIPTION AND AWARD MassDevelopment is soliciting proposals from companies capable of performing Operation & Maintenance services for its Devens Electric Utility system. A detailed description of the services is set forth in Attachment 1 including Exhibit A to the agreement. MassDevelopment may enter into contracts with one or more companies to perform all or a portion of the Operation & Maintenance services as determined by MassDevelopment to be in its best interests. The contracts will have a base term of five years with an option to extend for one subsequent five year term followed by a four year term subject to the agreement of both parties. The award will be made on the basis of best qualifications, professional capability and value and other factors, as determined by MassDevelopment, in its sole discretion.

3

Award of a contract for the work contemplated by this RFP may be subject to the approval of MassDevelopment’s Board of Directors. 3. SELECTION SCHEDULE/TIME AND PLACE OF SUBMISSION OF PROPOSALS The selection schedule is as follows: RFP Available: 5/20/2019 Deadline for Questions: 5/29/2019 by 4:30 pm Response to Questions Issued: 5/31/2019 Proposal Submission Deadline: 6/7/2019 by 4:30 pm Interviews (If needed): TBD MassDevelopment reserves the right to alter the timeline as it deems necessary. All inquiries concerning this RFP must be addressed to the following person: Jim Moore Devens Utilities Manager MassDevelopment 33 Andrews Parkway Devens, MA 01434 (978) 784-2931 jmoore@massdevelopment.com This RFP has been distributed electronically using MassDevelopment’s website. It is the responsibility of respondents to check the website for any addenda or modifications to this RFP. All questions should be submitted in writing on or before 5/29/2019 by4:30 pm. Email is acceptable. Prospective respondents should note that all clarifications and exceptions including those relating to the terms and conditions of the contract must be submitted prior to submission of a proposal. Answers to all questions of a substantive nature will be posted on MassDevelopment’s website at (https://www.massdevelopment.com/rfp-rfq/ ). It is the responsibility of respondents to ensure that they receive all information pertaining to this RFP by visiting the website link listed above. Respondents to this RFP must submit one original, hard copy and one electronic copy of their proposals. Responses must be received no later than 6/7/2019 by4:30 pm. Hard copies of responses should be clearly marked “RFP – Operation and Maintenance Services for the Devens Electric System” and mailed (by registered or certified mail, return receipt requested, postage prepaid) or hand delivered to the contact person listed above. Electronic copies of responses, preferably in a searchable PDF format, must be

4

sent to the e-mail address listed above with the subject line “RFP – Devens Electric O&M Services.”1 Any proposal received after the time specified will be considered a late proposal. A late proposal shall not be considered for award unless it is deemed to be in the Agency’s best interests. Delays in mail deliveries or any other means of transmittal, including couriers, shall not excuse late proposal submissions

4. DIVERSE BUSINESS ENTERPRISES

MassDevelopment strongly encourages the use of Minority Owned Business Enterprises (“MBEs”), Women Owned Business Enterprises (“WBEs”), Veteran-Owned Business Enterprises (“VBEs”), and Service Disabled Veteran Business Enterprises (“SDVBEs”, and collectively with the MBEs, WBEs, and VBEs hereinafter referred to as “Diverse Business Enterprise(s)”), each as certified by or recognized as certified by the Commonwealth of Massachusetts Operational Services Division’s Supplier Diversity Office (“SDO”) pursuant to 425 CMR 2.00, as consultants, contractors, subconsultants, subcontractors, and suppliers in the procurement of its direct design, engineering, construction and all professional services.

Accordingly, MassDevelopment has developed a Diverse Business Participation Program (the “DBE Program”) which establishes criteria to encourage and measure participation by Diverse Business Enterprises in the provision of such services. The DBE Program addresses MassDevelopment’s commitment and the commitment of respondents to this RFP, to seek opportunities for Diverse Business Enterprise participation in this contract.

Please see Attachment 2 for MassDevelopment’s DBE Program guidelines and forms which must be submitted with respondent’s proposal.

5. SCOPE OF SERVICES

Refer to Attachment 1 Exhibit A for scoping of services. For purposes of clarification, the following shall be performed by MassDevelopment and shall not be part of the scope of services to be provided to MassDevelopment:

Engineering Requirements Provided By MassDevelopment a. Relay Testing and Calibration b. Infrared scanning of Substations and distribution system c. Substation Battery Testing d. Line Loss Management e. SCADA planning

1   Please note that MassDevelopment cannot receive e‐mail attachments larger than 25 megabytes (an 

attachment larger than 25 megabytes will cause your email to be rejected entirely).  If your proposal 

exceeds that limit, please upload your proposal to your own storage service and provide 

MassDevelopment with a link to the file(s). 

5

Operational Requirements Provided By MassDevelopment a. 69 kV ROW tree trimming and mowing

6. ELEMENTS OF PROPOSAL

All responses shall provide information in sufficient detail to allow MassDevelopment to conduct an informed and fair selection process. Electronic submissions are to be in pdf format. A submission must, at a minimum, include the following elements:

Team Leadership/Staffing to include General Manager, Director of Operations/Engineering, Electrical Engineer, Line Supervisor, and other key personnel and their availability to work on the tasks that could be assigned.

Electric Utility Operation & Maintenance experience. Detail concerning the firm’s size and depth with respect to the firm’s capacity

to complete required assignments in a timely manner. Firm’s approach to providing the services listed in Attachment 1. Fee structure to provide the Base Contract Services as described in

Attachment 1. Fee structure to provide Capital Improvement Project Services by completing

Attachment 3. References. Diverse Business Enterprise (DBE) Participation Schedule and Narrative (See

Attachment 2). Proof of adequate financial stability and professional liability insurance. Please provide a statement declaring the firm’s agreement, if awarded this contract, to purchase and maintain the liability insurance set forth below as evidenced by a certificate of insurance from an insurance company having an A.M. Best rating of “A-, VII” and licensed to transact business in the Commonwealth of Massachusetts. Type Coverage Amount a. Workers' Compensation Statutory b. Employers Liability $500,000 each accident $500,000 Disease, each employee $500,000 / Disease, policy limit c. Commercial General Liability $2,000,000 per occurrence

$3,000,000 general aggregate $2,000,000 personal injury

Insurance shall be written ISO occurrence Form (CG 00 01 10 01) or equivalent and must include the following: Premises — Operations; Independent Contractors and Subcontractors Protective; Broad Form Property Damage; Contractual; Contractual

6

Liability (Broad Form providing coverage for the indemnity contained in the Agreement), Including Third Party; Hazard and Personal Injury, with Employee Exclusion ; Coverage shall include per Project aggregate. d. Business Automobile Liability $1,000,000 per accident

Insurance on ISO from (CA 00 01) or equivalent must include coverage for: Owned motor vehicles; Hired motor vehicles; and other non-owned vehicles

e. Contractors $1,000,000 per occurrence

Pollution Liability $2,000,000 aggregate f. Umbrella Liability $10,000,000 per occurrence

$10,000,000 aggregate 7. EVALUATION CRITERIA

MassDevelopment’s selection committee will evaluate and compare each submitted proposal using the following evaluation criteria. The criteria are not listed in any order of importance:

Relevant Municipal Light Plant Experience Expertise of Team Fee Structure Approach to providing the requirements of Attachment 1.

Determination of the successful respondent(s) will be made using a best value determination with the goal of making award to the respondent who MassDevelopment determines is responsible, possesses the management, financial and technical capabilities necessary to fulfill the requirements of the contract, whose proposal conforms to the RFP’s requirements stated herein, and who is judged by an integrated assessment of the general considerations and specific criteria defined in the evaluation criteria set forth herein to be most advantageous to MassDevelopment, with the proposed price and other factors considered. MassDevelopment has determined that it is in the public interest, for purposes of this procurement, that evaluation factors relating to the respondent’s proposal are more important than the proposed price. Therefore, MassDevelopment may select a respondent who offers a price higher than the lowest price among the responsible, eligible and qualified respondent if MassDevelopment determines in its discretion that the additional technical merit offered is worth the additional price in relation to the other proposals received. For evaluation purposes, if the proposals received are determined to be technically comparable, then the proposed price may become more important.

7

8. SELECTION PROCESS

The award of the contract is not subject to a statutory process and may be made by MassDevelopment in its discretion. There will be no public opening of proposals submitted under this RFP. An internal selection committee will be convened to review the submitted proposals, and this committee may or may not contact respondents for further clarification or interviews and may also contact references. The committee reserves the right to identify a “short list” of qualified respondents for follow-up interviews or to make recommendations based on the information contained in the proposals. Instructions for interviews, if required, will be provided to the short-listed firms. MassDevelopment reserves the right to waive any of the formal requirements of this RFP, to request additional information from any respondent, to award without negotiations or discussions, to negotiate with any respondent, to reject any or all proposals or parts of proposals, to solicit new proposals, and to award contracts to one or more respondents or to reject any or all respondents as it deems in its best interest. The firm or firms selected will begin to perform services, as needed by MassDevelopment subject to execution of a contract substantially in the form attached as Attachment 1 hereto. MassDevelopment reserves the right to negotiate the final terms of the contract and compensation. Should MassDevelopment be unable to negotiate a satisfactory fee with the selected finalists, then the next highest ranked finalist will be selected and the negotiation process repeated.

9. GENERAL PROVISIONS

a. MassDevelopment reserves the right to reject any or all responses or parts of responses, to solicit new responses, and to award contracts as it deems to be in its best interest.

b. By submitting a proposal to MassDevelopment, the respondent is certifying that its offer is in all respects bona fide, fair, and made without collusion or fraud with any person. As used in this section, “person” shall mean any natural person, joint venture, partnership, corporation or other business or legal entity.

c. Respondents are encouraged to utilize qualified Diverse Business Enterprises (as defined above). MassDevelopment hereby notifies all respondents that Diverse Business Enterprises will be afforded full opportunity to submit offers and/or proposals in response to this RFP and will not be subjected to discrimination on the basis of race, color, sex or national origin in consideration for an award.

d. Potential respondents are hereby notified that issuance of this RFP and receipt of proposals does not assure that a respondent will be selected.

8

e. Nothing herein shall create an implied contract. MassDevelopment is not liable for any costs incurred by a respondent in the preparation and production of a proposal or for any work performed prior to contract execution.

f. MassDevelopment reserves the right to waive any informalities, minor deviations, insignificant mistakes, and matters of form rather than substance and to seek clarification of the proposals, which can be waived or corrected without prejudice to other respondents, potential respondents, or MassDevelopment. No officer or agent of MassDevelopment is authorized to waive this reservation.

g. A proposal may be modified or withdrawn by a respondent prior to ten (10) business days after the proposal submission deadline by delivering a written notice to the location designated as the place where proposals are to be received.

h. Any proposal submitted in response to this RFP that is not modified or withdrawn as specified in Section 9 (g) above, shall be considered a firm offer and shall remain effective unconditionally for ninety (90) days.

i. No respondent shall hold any press conference, issue news releases, or make announcements concerning its selection or non-selection for a contract prior to MassDevelopment’s public release of this information; thereafter any such press conference, release, or announcement shall be made only after obtaining the written approval of MassDevelopment.

j. MassDevelopment provides respondents with an opportunity to administratively resolve disputes, complaints, or inquiries related to MassDevelopment proposal solicitations or contract awards. MassDevelopment encourages respondents to seek resolution of disputes through consultation with MassDevelopment staff. All such matters will be accorded impartial and timely consideration. If consultation with MassDevelopment staff does not lead to a resolution of the dispute, respondents must file a written dispute with the MassDevelopment Office of General Counsel.

k. During the evaluation process, the content of each proposal will be held in confidence and details of any proposal will not be revealed (except as required under law).

l. Unless otherwise specified in the response to the RFP, the quoted price includes all overhead, insurance, taxes, fees, and licenses applicable to the delivery or services set forth in the proposal.

m. Respondents are further advised that upon signing a contract, the selected respondent must certify that it has complied with any and all laws of the Commonwealth relating to the payment of taxes, reporting of employees and contractors, and withholding and remitting of child support as required by M.G.L. c.62C, §49A, and has either (i) filed all tax returns and paid all taxes required by law; (ii) has filed a pending application for abatement of such taxes; (iii) has a pending petition before the appellate tax board contesting such taxes; or (iv) does

9

not derive taxable income from Massachusetts Sources such that it is subject to taxation by the Commonwealth of Massachusetts; and must certify that it is a “Qualified Employer” or an “Exempt Employer” as defined under Chapter 521 of the Massachusetts Acts of 1990, as amended by Chapter 329 of the Massachusetts Acts of 1991, and 102 CMR 12.00 et. seq. as provided in the contract. A respondent’s failure to certify compliance with said laws would be cause for MassDevelopment not to enter into a contract. MassDevelopment further reserves the right to investigate, at any time prior to MassDevelopment’s execution of a contract or during the term of a contract, any information indicating that there has been a failure to comply with said laws. If MassDevelopment determines that any selected respondent has not complied with said laws, it shall decline to enter into a contract, may terminate any contract entered into, and further may decline to extend the contract.

n. This procurement is subject to M.G.L. c. 7 §§ 22C - 22F which provides that a state agency, state authority, the house of representatives or the senate may not procure goods or services from any person employing ten or more employees in an office or other facility located in Northern Ireland, who fails to certify that:

i. he/she does not discriminate in employment, compensation, or terms,

conditions and privileges of employment on account of religious or political belief; and

ii. he/she promotes religious tolerance within the work place, and the eradication of any manifestations of religious and other illegal discrimination; and

iii. he/she is not engaged in the manufacture, distribution or sale of firearms, munitions, including rubber or plastic bullets, tear gas, armored vehicles or military aircraft for use or deployment in any activity in Northern Ireland.

Mass. Gen. Laws c. 7, §§22C – 22F shall not apply if (i) the procurement is essential, as determined by MassDevelopment, and compliance would eliminate the only proposal or offer or would result in inadequate competition; or (ii) there is not comparable proposal or offer (i.e. within 10%) by a certifying firm; or (iii) the firm does not employ ten or more employees in an office or other facility located in Northern Ireland.

o. MassDevelopment is subject to the requirements concerning the disclosure of public records under the Massachusetts Public Records law, M.G.L. c. 66, and thus documents and other materials made or received by MassDevelopment are subject to public disclosure.

p. All respondents must be registered to do business and be in good standing with the Massachusetts Secretary of State’s Office in order to transact business in Massachusetts. MassDevelopment may request evidence of good standing prior to entering into any contract.

10

A respondent will not be selected if it appears on any list of debarred or suspended contractors maintained by the Commonwealth or the Federal government

Attachment 1—Form of Contract with detailed description of services (Exhibit A) Attachment 2 – MassDevelopment’s Diverse Business Participation Program Attachment 3 – Capital Improvement Labor & Equipment Rate Sheet

11

Attachment 1

Form Contract

See document included with this RFP titled “Massachusetts Development Finance Agency Agreement for Electric Operation and Maintenance Services”

12

Attachment 2 MassDevelopment’s Diverse Business Participation Program Guidelines

MassDevelopment strongly encourages the use of Diverse Business Enterprises (as defined in Section 4 of the RFP) as consultants, contractors, sub-consultants, subcontractors, and suppliers in the procurement of its direct design, engineering, construction and all professional services. Accordingly, MassDevelopment has developed a Diverse Business Participation Program (the “DBE Program”) which establishes criteria to encourage and measure participation by Diverse Business Enterprises in the provision of such services. The DBE Program addresses MassDevelopment’s commitment, and the commitment of respondents to this RFP, to seek opportunities for Diverse Business Enterprise participation. The DBE Program requires MassDevelopment to reach out to Diverse Business Enterprises in its contracting opportunities and to track the percentage of Diverse Business Enterprises which participate in Agency contracting at the direct contracting level. The participation levels of Diverse Business Enterprises in MassDevelopment’s direct contracting will be reported to MassDevelopment’s Board of Directors annually. In addition, the DBE Program requires examination of respondent’s anticipated utilization of Diverse Business Enterprises at the subcontractor/subconsultant level, including the percentage of the total proposed price to be supplied by Diverse Business Enterprises and the identity of the work to be performed by Diverse Business Enterprises. The DBE Program also considers the strategies and good faith efforts each respondent will use to obtain qualified Diverse Business Enterprise subcontractors/subconsultants and suppliers, how the respondent will interface with MassDevelopment for outreach, pre-solicitation review of subcontracting/subconsulting, and compliance monitoring and reporting. It will also consider how the respondent will address resolving disputes with Diverse Business Enterprise subcontractors/subconsultants, including proposed termination and alternative plans for the substitution and replacement of Diverse Business Enterprise firms that have been terminated. Finally, it will consider what technical assistance initiatives and supportive service strategies the respondent will employ to promote full participation by Diverse Business Enterprises and to support the efforts by such firms to build capacity. Respondent Submission Requirements As part of respondent’s proposal submission, the Participation Schedule (attached hereto as Exhibit A) must be submitted. It is anticipated that contracts may meet the eligibility criteria of Part 2. Accordingly, the proposal submission should include a narrative with a summary of the below information.

1. Explain how the respondent intends to ensure overall compliance with MassDevelopment’s policy of promoting equity and opportunity for Diverse Business Enterprises, including the strategies the respondent used to obtain

13

certified MBE, WBE, VBE or SDVBE subcontractors and suppliers to perform work or provide supplies for the project.

2. Explain the good faith efforts the respondent has already made to obtain Diverse Business Enterprise participation, including:

• The strategies the respondent has used to obtain certified MBE, WBE, VBE or SDVBE subcontractors and suppliers,

• Documented communication with MassDevelopment about Diverse Business Enterprise outreach,

• How the respondent used information concerning Diverse Business Enterprise subcontracting opportunities provided by MassDevelopment during the pre-proposal conference, if any, and/or through other means,

• Solicitations placed by the respondent in general circulation media, trade association publications, minority-focused media and other reasonable and available means to obtain Diverse Business Enterprise involvement,

• Written notifications sent by the respondent to Diverse Business Enterprises encouraging participation in the proposed contract,

• Efforts the respondent made to identify specific portions of the work that might be performed by Diverse Business Enterprises,

• A list of names, addresses, and telephone numbers of Diverse Business Enterprises that were contacted,

• A description of the information provided to targeted Diverse Business Enterprises regarding the particular project, and

• Efforts made by the respondent to assist Diverse Business Enterprises in obtaining bonding or insurance required by the Bidder/proposer or by MassDevelopment.

3. Submit a narrative explaining how during performance of the contract the

respondent will maintain continued efforts to preserve and enhance Diverse Business Enterprise participation, including the respondent’s:

• Description of how the respondent will interface with the MassDevelopment project manager and contract manager for outreach and assistance generally and with respect to the specific issues below,

• Description as to how the respondent will abide by the monitoring and reporting requirements of the contract,

• Description of the dispute resolution procedures the respondent will institute under its subcontracts with Diverse Business Enterprises to encourage amicable resolution of disputes and continued performance by the Diverse Business Enterprises, and

• Description of the procedures and guidelines for the termination of Diverse Business Enterprises as well as for the identification and selection of substitutes.

14

Exhibit A MassDevelopment’s Diverse Business Enterprise (DBE) 2 Participation Schedule

PART 1: CONSULTANT INFORMATION Business Name and Address:_____________________________________________________________ Contact Name and Phone Number:_________________________________________________ Email Address:_________________________________________________________________

Consultant is/is not Supplier Diversity Office certified as a DBE:

□ Yes □ No, not a certified DBE

If yes, check appropriate category(ies) below (attach any SDO Certification Letters):

□ MBE □ WBE □VBE □SDVBE

PART 2: NARRATIVE (if applicable) For contracts with values $50,000.00 or more, consultant must attach to this schedule a narrative containing: (1) communications regarding DBE outreach, (2) identification of the work that may be completed by any DBEs, (3) a dispute resolution process with DBEs, and (4) procedures for the replacement of DBEs if termination is required. PART 3: CONSULTANT’S DBE SUBCONTRACTORS/SUBCONSULTANTS

Have you sought out DBE Participation at the subcontract/subconsultant level: □Yes □No

□N/A If yes, which methods did you use:

□ Solicitation placed in trade publications □Written notification

□ Assist DBEs in obtaining required bonding or insurance □ COMMBUYS

□Other:_______________________________________________________________________ If yes, complete the below list:

Name and Address of Planned Diverse Business Enterprise Subcontractors/ Subconsultants

Circle Appropriate Certification and attach Certification Letter from SDO

Dollar Amount of Participation on a Massachusetts fiscal year (July 1 – June 30) basis

MBE / WBE / VBE / SDVBE

MBE / WBE / VBE / SDVBE MBE / WBE / VBE / SDVBE MBE / WBE / VBE / SDVBE

PART 4: CERTIFICATION (REQUIRED) Under the pains and penalties of perjury, I certify that the information provided on this form and all attachments is accurate. If the value of the contract is $50,000.00 or more, recertification of this document must occur annually (by July 17th), unless otherwise specified or requested by the Agency. Signature: ____________________ Written Name: ____________________

2 For purposes of this schedule, DBE shall collectively refer to enterprises certified or verified by the Supplier Diversity Office (SDO) as Minority, Women, Service Disabled Veteran Owned Business Enterprises and Veteran Owned Business Enterprises (each respectively a MBE, WBE, SDVBE, and VBE). The SDO certifications are located at www.mass.gov/sdo

15

Attachment 3

Operation and Maintenance Charges for

Capital Projects

Classification Hourly Labor Rates

Electrical Engineer __________________

Line Supervisor __________________

Lineman __________________

Engineering Technician __________________

Administrative Support2 __________________

Material Handling Surcharge __________________

Vehicle Rates Hourly Vehicle Rates

Heavy Equipment ___________________

Light Duty ___________________

1. Fees to be adjusted annually on contract anniversary date using the Boston CPI-U index, not to exceed 2.5% nor be less than 0%.

2. Administrative support rate to be charged based on 5% of total work order labor charges. 3. Consultants and subcontractors shall be billed at actual costs without a markup. 4. Work required by Devens that is Capital Improvement Services to be performed outside

of the regular working hours of _________________ for contractor’s own system (e.g. 7:00 A.M. – 3:30 P.M., Monday through Friday) shall be considered overtime and shall be billed at the wage rate times a factor of 1.25%; provided, however, that Devens shall not be responsible for paying any such overtime where the presence of contractor’s workers during the overtime period is due to voluntary overtime period.

5. The above rates include all employee benefits, routine telephone, computer charges, meals, supplies and overhead, including administrative and routine supervision.

6. Final costs for requested capital work shall be billed at actual costs that may be higher or lower than the work order estimated cost. Contractor and Agency shall meet to discuss any changes in the work required that is expected to cause a deviation in charges that result in being over or under the work order estimated cost.

7. Materials and supplies shall be purchased through the Commonwealth of Massachusetts or the New England Public Power Association or other competitive bidding process. Such materials and supplies shall be charged at cost. A 10% surcharge is allowed for material handling, stocking, and storage costs, with no state sales tax.

665675_1

1

MASSACHUSETTS DEVELOPMENT FINANCING AGENCY

AGREEMENT FOR

ELECTRIC OPERATION AND MAINTENANCE SERVICES

This Agreement for Electric Operation and Maintenance Services (the “Agreement”) is made and entered into as of ____________________________, 2019, by and between MASSACHUSETTS DEVELOPMENT FINANCE AGENCY, a body politic and corporate created and established under Chapter 23G of the Massachusetts General Laws, having a principal place of business at 99 High Street, 11th Floor, Boston, MA 02110 (the “Agency” or “MassDevelopment”), and , a _______________, having a principal place of business at ___________________________ (the “Contractor”) (Agency or MassDevelopment and Contractor referred to individually as “Party” and collectively as “Parties”). WITNESSETH THAT

WHEREAS, the Agency has the authority to implement Chapter 498 of the Acts of 1993, as amended (the “Act”), and is the public agency responsible for the redevelopment, reuse and operation of the Devens Regional Enterprise Zone (“Devens”); and

WHEREAS, the Agency desires to retain the Contractor to perform operation &

maintenance services for the Devens Electric Utility System, as more fully described herein; and

WHEREAS, the Contractor is qualified and desires to perform such operation & maintenance services for the Agency.

NOW, THEREFORE, for the consideration hereinafter set forth, the Parties hereto do mutually agree as follows: ARTICLE 1. DEFINITIONS

Whenever the word “Contractor” is used in this Agreement, it shall be understood to include its successors, permitted assigns, employees, agents and representatives. The Contractor shall do all the work and furnish all the material, equipment and labor, except as herein otherwise specified, necessary or proper for performing and completing the operation & maintenance services hereinafter specified.

Whenever the word “Agency” is used in this Agreement, it shall be understood to mean the Massachusetts Development Finance Agency, “MassDevelopment,” acting through its Executive Director & President/CEO either directly or through her properly authorized assistants or agents acting severally within the scope of the particular duties entrusted to them.

665675_1

2

ARTICLE 2. TERM This Agreement shall commence upon execution (“Commencement Date”) and shall continue through June 30, 2024 (the “Term”) The Agency shall have the option to extend the Agreement for one additional five (5) year term and, subsequently, one additional four (4) year term (either option period may hereinafter be referred to as an “Extended Term” or collectively as the “Extended Terms”). If the Agency exercises any of its two Extended Term options, each Extended Term option and each Extended Term shall be independent of and separate from the other. Each Extended Term shall be for a separate five (5) year and four (4) year increment, respectively. If the Agency exercises its Extended Term option, it must provide one year written notice to Contractor prior to the end of the Term or any Extended Term. The Agreement may be terminated by either Party by the giving of a one (1) year advance written notice to the other; provided, however, that in no event shall such notice become effective prior to the fifth (5th) anniversary of the Commencement Date. Applicable provisions of this Agreement shall remain in effect following its expiration or termination to the extent necessary to provide for final billing, billing adjustments, payments, accounting and dispute resolution. ARTICLE 3. SCOPE OF AGREEMENT Contractor agrees to perform the operation & maintenance services set forth in Articles 4, 5 and 6 below, in accordance with Good Utility Practice, with respect to the electric distribution system located within the Devens Regional Enterprise Zone as defined by the Act or under the control of the Agency and serving Devens. The electric distribution system and equipment at Devens is all such infrastructure, transformers and equipment, including the Agency-owned 69 kV transmission lines from the New England Power Company's (“NEP”) delivery point at West Main Street substation to the secondary side of the Devens' electric customers transformers used to transmit and distribute electricity. A Devens' customer is an entity, including Devens, taking electric service from Devens. For purposes of this Agreement, “Good Utility Practice” means those practices, methods, equipment, materials, specifications, standards of safety and performance, and acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period, or those practices, methods, equipment, materials, specifications, standards of safety and performance, and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been reasonably expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition. Good Utility Practice is not intended to be limited to the optimum practice, method, or act to the exclusion of all others, but rather includes all acceptable practices, methods, or acts generally accepted in the region. For purposes of this Agreement, the Agency shall perform the following services and/or work, which shall not be part of this Agreement: Engineering provided by the Agency: a. Relay Testing and Calibration b. Infrared scanning of Substations and distribution system

665675_1

3

c. Substation Battery Testing d. Line Loss Management e. SCADA planning Operations provided by the Agency: a. 69 kV Right-of-way tree trimming and mowing ARTICLE 4. BASE CONTRACT SERVICES 4.1 Contractor shall manage, operate and maintain the electric distribution system at Devens in order to maintain reliability, durability and longevity in accordance with the service requirements listed in Exhibit A (“Base Contract Services”).

4.2 The Base Contract Services as set forth in Exhibit A will be provided at the fixed annual fee of ___________________ paid by the Agency to Contractor in twelve (12) monthly invoiced installments. The fixed fee will be adjusted annually using the Boston-Metro CPI-U data that is published quarterly. The nearest published data to the annual anniversary of the Commencement Date will be used to adjust the Base Contract Services fixed fee for the next annual contract period. The annual adjustment shall not exceed 2.5% nor be less than 0% for any given adjustment period regardless of the published CPI-U data for that period. The Base Contract Services fixed fee shall include the cost of needed repairs caused by Acts of God, such as storm related outages up to a yearly threshold of $50,000.

4.3 Before performing any work within the Devens Regional Enterprise Zone that

requires any intrusive soil/ground work, Contractor and any other personnel on site shall be required to view an instructional video regarding unexploded ordnance (“UXO”) that may be present on site. Contractor shall coordinate the viewing of such video with the Agency’s project manager responsible for this Agreement.

4.4 The Agency may request changes, additions or deletions to the Base Contract

Services to be performed by the Contractor hereunder. Such changes, including any increase or decrease in the amount of the Contractor’s compensation, shall be mutually agreed upon in writing and incorporated in the Agreement.

4.5 The Contractor shall constantly give its personal attention to the faithful

performance of the Base Contract Services and the Capital Improvement Services and shall keep the same under its personal control and shall not assign nor subcontract the work or any part thereof, without the previous written consent of the Agency, and shall not, either legally or equitably, assign any of the moneys payable under this Agreement, or its claim thereto, unless, by and with the written consent of the Agency.

ARTICLE 5. CAPITAL IMPROVEMENT SERVICES

5.1 Capital Improvement Services shall include capital items, enlargements and upgrades for the Agency’s substations, transformers, distribution and transmission systems at Devens that is outside of the requirements covered in Article 4 under the Base Contract

665675_1

4

Services fee structure. Contractor shall assist the Devens authorized utility representative in the design, engineering, bid and specification work regarding such Capital Improvement Services. Contractor shall perform the construction on all Capital Improvement Services if directed by Agency. The Agency has the option to request bids for any capital projects and may opt to use other contractors to perform said work if it is determined to be advantageous to the Agency or is otherwise required or prudent. Contractor shall have the right to review and comment on all Capital Improvement Services that are performed. The Capital Improvement Services performed by Contractor pursuant to Article 5 are characterized as Capital Improvement Services and the rates listed in Exhibit B will apply to all such Capital Improvement Services.

5.2 The current and future pricing for the Capital Improvement Services performed under this Article is set forth in Exhibit B. Exhibit B pricing shall also be used to determine the cost of repairs performed by Contractor that are in excess of the yearly threshold of $50,000 for outages caused by Acts of God, such as storm related outages.

5.3 If Contractor is unable to perform the Capital Improvement Services under this Article 5 in a timely manner, as reasonably determined by the Agency, then the Agency shall have the right in its sole discretion to meet such obligations itself or to hire a third party to meet such obligations. ARTICLE 6. POWER OUTAGE SERVICE

6.1 Power outages are separated into three categories, as set forth in Sections 6.2, 6.3 and 6.4 below (“Power Outages”). Contractor shall be responsible for repairing the Devens' electric distribution system and restoring service. Contractor shall immediately contact the Devens authorized utility representative to receive MDFA authorization to perform the work, repair and construction necessary to reliably and safely restore electric service. If repairs are needed after regular business hours and the Devens authorized utility representative or alternative, as designated in writing by the Agency, for outage purposes is not available, then Contractor may perform the necessary work to restore service and report the repairs performed to the Devens authorized utility representative the next day.

6.2 System Failure Related Outages. These are outages that result from Devens electric distribution system component failures. The Contractor’s response and labor to repair this form of outage, are included in the Base Contract Services Fee performed under Article 4. Contractor may recover the material cost of the failed components by invoicing the Agency for the cost of those failed items if the outage was not deemed to be caused by Acts of God as set forth in Article 6.4.

6.3 Incident/accident Caused Outages. These are outages or system failures result from vehicle crashes. These type of outages will be repaired and charged for by Contractor in accordance with Exhibit B if Contractor is unable to recover expenses directly from the vehicle operator’s insurance company.

6.4 Acts of God. For purposes of this Article, outages, failures or damages that

665675_1

5

result from an Act of God shall be those events resulting from any act of God, act of the public enemy or terrorists, war, invasion, insurrection, riot, fire, storm or flood, ice, explosion, breakage or accident to machinery or equipment or any other cause beyond the control of the Agency. These outages are related to such events as storm damage. Repairs up to $50,000 per year for such outages are included in Base Contract Services. Repairs over $50,000 per year for such outages are considered Capital Project Services performed under Articles 5 and Exhibit B. If a storm qualifies for FEMA reimbursement, Contractor shall assist the Agency in filing a claim for reimbursement. Any reimbursement to the Agency from the Federal Emergency Management Agency (“FEMA”) for Act of God repairs shall be paid by the Agency to the Contractor for work performed under the $50,000 cap. Exhibit B will be used to calculate the reimbursable amount.

6.5 Outage Response. During normal working hours (7:00 AM to 4:00 PM), the Contractor shall provide a standby system which provides a response that shall place Contractor linemen with the necessary equipment at Devens within 30 minutes of an outage. After normal working hours, a Contractor first class lineman, general line foreman or electrical engineer shall be on call for Devens. The standby system after normal working hours shall place a Contractor’s supervisor at Devens within 45 minutes of an outage and a lineman at Devens within 60 minutes of an outage. Outage responses are covered as Base Contract Services.

6.6 When a problem arises outside of the normal working hours identified in Section 6.5 at Devens due to an electric outage or safety concern, the Contractor’s standby person will be contacted by phone by the Nashoba Valley Regional Disptach District or directly by a Devens electric customer. The standby person shall report to Devens and proceed directly to assess the problem area causing the fault. When the problem is identified and the necessary work is identified, Contractor shall dispatch additional personnel and equipment to Devens, if necessary.

6.7 Contractor shall prioritize its provision of services under Articles 4, 5 and 6 as follows: (1) if any Power Outage shall exist, Contractor shall first devote its efforts to repairing the Devens’ electric distribution system and restoring service under Article 6; (2) in the absence of any Power Outage, Contractor shall first devote its efforts to managing, operating and maintaining the electric distribution system at Devens under Article 4; and (3) Contractor shall last devote its efforts to Capital Improvement Services under Article 5. ARTICLE 7. EVENTS OF DEFAULT

7.1 In the event a Party files a petition under federal or state insolvency laws, or if such a petition is filed against a Party, or if a receiver is appointed and makes an assignment for benefit of creditors, or if a receiver is appointed for a Party, the other Party may terminate this Agreement or suspend its performance hereunder upon providing five (5) calendar days advance written notice.

7.2 Unless otherwise provided for herein, if either Party fails to perform a material

obligation in compliance with the terms and conditions of this Agreement, then the non-defaulting Party shall provide written notice to the defaulting Party outlining the specific details of such breach of the Agreement. The defaulting Party shall have fourteen (14) calendar days from receipt of such notice to fully cure the breach at its own expense. If the defaulting Party

665675_1

6

fails to remedy such breach within the fourteen (14) calendar day cure period, the non-defaulting Party may immediately terminate this Agreement or suspend its own performance under this Agreement upon written notice to the defaulting Party.

7.3 The Agency may terminate this Agreement for convenience by providing

Contractor with three (3) months written notice of its intent to terminate. The Agreement shall terminate upon expiration of the three (3) month period unless the written notice is retracted by the Agency prior to expiration of the three (3) month period. ARTICLE 8. BILLING AND PAYMENT

8.1 The Agency shall compensate Contractor for services provided under this Agreement in accordance Section 4.2 and the fee schedule set forth in Exhibit B, as applicable, except that any failure of the Contractor to provide and/or perform any services required under Articles 4, 5, and/or 6 within the time frames set forth therein shall entitle the MDFA to perform such services through a third party service and shall further entitle the Agency to set off the cost of such services against the amount that is otherwise due to the Contractor hereunder, if any.

8.2 Fees for services provided by the Contractor hereunder shall be invoiced directly

by the Contractor to the Agency and shall be due and payable to the Contractor within sixty (60) calendar days after the Agency's receipt of an invoice (“Due Date”). In the event that the Agency disputes an invoice, it will promptly provide detailed, written notice to the Contractor identifying the basis for disputing the invoice. ARTICLE 9. WARRANTIES AND REPRESENTATIONS

9.1 Acknowledging and agreeing that the Agency is relying on each and every representation, Contractor represents and warrants to the Agency that:

9.1.1 Contractor and its subcontractors and agents will at all times comply with applicable laws, permitting requirements, ordinances, codes, rules, regulations, and orders and perform all services hereunder in accordance with Good Utility Practice.

9.1.2 Contractor and its subcontractors and agents will obtain, pay for, and possess all licenses and permits which are routinely obtained by such Parties and are necessary to perform the services to be provided under this Agreement. 9.1.3 Contractor and its subcontractors are business entities that are duly organized, and in good standing and validly existing under the laws of their State of organization. Contractor and its subcontractors have all necessary power and authority to carry on their business as presently conducted and to enter into and perform its obligations under this Agreement and agreements between Contractor and its subcontractors. Contractor and its subcontractors are duly qualified or licensed to do

665675_1

7

business in the Commonwealth of Massachusetts, wherein the nature of their business and operations makes such qualification or licensing necessary and where the failure to be so qualified or licensed would materially impair their ability to perform their obligations under this Agreement.

9.1.4 Contractor has all necessary power and authority to execute, deliver, and perform its obligations under this Agreement. Each of the execution, delivery and performance by Contractor of this Agreement has been duly authorized by all necessary action on its part, and the performance of its obligations under this Agreement does not contravene or constitute a default under its organizational documents or any provision of applicable law or any agreement, judgment, injunction, order, decree or other instrument binding upon it.

9.1.5 The execution and delivery by Contractor of this Agreement does not require, with respect to it, the consent or approval of, the giving of notice to, the registration with, the recording or filing of any document with, or the taking of any other action in respect of any government authority, except such as are not yet required (as to which it has no reason to believe that the same will not be readily obtainable in the ordinary course of business upon due application therefore) or which have been duly obtained and are in full force and effect.

9.1.6 The undersigned authorized representatives of Contractor have duly and validly executed and delivered this Agreement. With such execution it constitutes the legal, valid and binding obligation of Contractor enforceable against it in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, moratorium or similar laws affecting the rights of creditors or by general equitable principles (whether considered in a proceeding in equity or at law).

9.1.7 Contractor and its subcontractors are knowledgeable, experienced, and skilled in performing the operation and maintenance services specified herein, and have all the required skills and capacity necessary to perform or cause to be performed the operation and maintenance services specified herein in a proper, timely, and professional manner utilizing Good Utility Practices.

9.1.8 Contractor and its subcontractors are financially solvent, able to pay its debts as they mature, and possessed of sufficient working capital to complete its obligations under this Agreement.

9.1.9 There is no action, suit or proceeding, at law or in equity, or official investigation before or by any government authority or to the best of Contractor's knowledge, threatened against or affecting it or any of its subcontractors or any of their properties, rights or assets, which could

665675_1

8

reasonably be expected to result in a material adverse effect on their ability to perform their obligations under this Agreement or on the validity or enforceability hereof.

9.2 The Agency warrants and represents the following to the Contractor:

9.2.1 The Agency and its successors and permitted assigns shall not

impose on Contractor or its agents any permit or inspection fees or charges for licenses, easements, rights-of-way or any other fees or charges which are directly related to Contractors’ performance hereunder.

9.2.2 The Agency owns and shall own all equipment and facilities

necessary to provide electric service to the customers located in the Devens Regional Enterprise Zone.

9.2.3 The Contractor shall have access to the Devens electric

distribution system and the electric facilities of the electric customers located in the Devens Regional Enterprise Zone, to the extent the Agency has access, at all reasonable times as necessary to perform Contractor’s responsibilities under the Agreement. Access shall mean the ability to enter upon, perform work and make all reasonable assessments and tests necessary to ensure safe and reliable operation of the electric system in accordance with Good Utility Practice. The Contractor’s employees and its authorized agents shall possess proper identification at all times and shall provide such identification upon request of the Agency or its customers.

ARTICLE 10. COOPERATION

Each Party hereto shall make every reasonable effort to comply with reasonable requests made by the other Party and to cooperate with the other Party in the satisfaction of any regulatory requirements or other requirements relating to the performance of the Parties hereunder. ARTICLE 11. RECORD-KEEPING

Contractor will maintain records of all services and charges billed and incurred under this Agreement, and will supply supporting details reasonably requested by the Agency. During the term of this Agreement, Contractor will make all such records available to the Agency for review during normal business hours. Whenever possible all information requested by the Agency shall be provided in an acceptable electronic format. ARTICLE 12. QUALITY CONTROL AND SUPERVISION

12.1 The Parties shall establish procedures for ensuring that services performed under this Agreement by the Contractor and its agents and subcontractors conform to Good Utility Practice.

665675_1

9

12.2 The Agency shall designate an authorized utility representative who will serve as

the primary contact person between the Agency and the Contractor who shall keep such authorized utility representative informed of developments and issues related to the services provided, and will provide the authorized utility representative with reasonably requested information.

12.3 The Contractor shall provide general management through a competent

supervisor who will have day-to-day operational responsibility over the Contractor’s work force, agents and any subcontractors involved in the provision of services hereunder. Contractor shall assign personnel to Devens who are properly qualified and trained to work on the Devens electric distribution system, all in accordance with Good Utility Practice. The Contractor supervisor will work closely with the Devens authorized utility representative to assure the efficient and effective provision of services hereunder.

12.4 Contractor shall perform all work hereunder in a safe manner and shall clean all

work areas at the end of each workday. Contractor shall dispose of all obsolete, broken, or unusable surplus equipment and materials off-site in accordance with all applicable federal, state and local laws, rules and regulations.

665675_1

10

ARTICLE 13. CONFIDENTIALITY

Contractor recognizes the confidential nature of the Agency's customer records, as well as other information provided by the Agency, and that all such records and information are the exclusive property of the Agency. Contractor shall not barter, or exchange customer lists or sell information to a third party or otherwise disclose any such information or information regarding the Agency’s electric system. ARTICLE 14. INDEMNIFICATION AND LIMITATION OF LIABILITY

14.1 To the fullest extent permitted by Laws, Contractor shall defend, indemnify and hold harmless the Agency and its officials, board members, managers, employees, agents and representatives ("Agency Indemnitees") from and against any and all claims, demands, suits, liabilities, causes of action, losses, expenses, damages, fines, penalties, court costs, and reasonable attorneys' fees (collectively, "Claims"), arising out of personal injury, death and third party property damage and any and all fines or penalties imposed by any governmental authority, in each case to the extent they arise or result from, or are occasioned by or in connection with: (a) any negligent or intentionally wrongful act or omission to act by Contractor, or anyone directly or indirectly employed by it, or anyone for whose acts it may be liable; (b) violations of any laws by Contractor; (c) Contractor's failure to perform the Services in accordance with applicable laws; and (c) any material misrepresentation of Contractor under the Agreement; provided, however, that Contractor shall not be required to indemnify Owner for any Claim to the extent such Claim arises from the negligence or intentionally wrongful acts or omissions of any Agency Indemnitee. This indemnification shall apply to any Claim incurred by any Agency Indemnitee by the imposition on the Agency Indemnitee of contingent, indirect or vicarious liability arising from those acts or omissions of Contractor described above. Contractor's indemnification, defense and hold harmless obligation shall survive the termination or expiration of this Agreement for six (6) years. In Claims against any Agency Indemnitee by an employee of Contractor, anyone employed by it or anyone for whose acts it may be liable, the indemnification obligation shall not be limited by a limitation on the amount or type of damages, compensation or benefits payable by or for Contractor or any other party under workers' or workmen's compensation acts, disability benefit acts, or other employee benefit acts.

14.2 Whenever the integrity of the Agency's electricity distribution system or the supply

of electricity is believed to be threatened by conditions on the system, not caused by the Contractor or upon any system with which it is directly or indirectly interconnected, Contractor may, in its sole judgment, curtail or interrupt service or reduce voltage and such action shall not be construed to constitute misconduct, negligence, nor a breach of this Agreement. Contractor shall promptly notify the Devens authorized utility representative of such conditions. Contractor shall use its best efforts to overcome the cause of such curtailment, interruption or reduction.

14.3 Neither the Contractor nor the Agency shall be liable to the other or any party

claiming through the other for indirect, consequential, punitive or special damages, lost profits or revenues or increased costs of operation whether arising in contract, warranty, tort (including negligence, strict liability or otherwise) or statute, by reason of any services performed, or undertaken to be performed hereunder or in accordance with or required by law, including, without limitation, termination of or refusal to serve an Agency customer.

665675_1

11

14.4 Contractor shall notify the Agency of any soil that it excavates or any other

materials it comes in contact with on the Premises which has any unusual odor, texture, or appearance. In such instances, Contractor shall cease work and inform the Devens authorized utility representative of such occurrence. Contractor may resume work when it is determined that such soil does not have dangerous levels of hazardous materials or once the Agency provides instructions for the disposition of contaminated soil or other hazardous materials, if any. Regarding hazardous wastes, Contractor's obligation is solely to notify the Devens authorized utility representative of such environmental issue and Contractor shall not be responsible for cleaning up such contamination unless Contractor has caused such contamination. The Parties acknowledge and understand that the actions which may be undertaken as part of the services to be performed by the Contractor including subsurface excavation, entail uncertainty and risk of injury or damage that cannot be avoided even with compliance of generally accepted engineering practices. ARTICLE 15. FORCE MAJEURE 15.1 Neither the Agency nor the Contractor shall be liable for any costs, losses or damages incurred by the other or any party claiming through the other for any failure to perform their obligations hereunder where such failure arises from or is in consequence of any event of force majeure, including but not limited to an act of God, natural disaster, war, civil disturbance, fire, explosion, breakage or accident to machinery or lines, unanticipated repairs or alteration of machinery or lines, or partial or whole failure of machinery necessary to operate an electric distribution system, any federal, state or local law or any rule, regulation or order of a court or other governmental agency, labor disputes, inability to secure materials, rights-of-way, grants, access, servitudes, permits or licenses, or any other cause or causes, whether similar or dissimilar to the causes enumerated above, beyond the reasonable control and without the fault or negligence of the Party asserting force majeure. The Party claiming force majeure must give notice in writing to the other Party as soon as practicable after the occurrence of the cause relied on, and such cause shall be remedied with all reasonable dispatch. However, no Party shall be required against its will to adjust or settle any labor dispute by reason of this Article 15.

15.2 If after the Commencement Date there are major changes in the regulatory

requirements which materially change the Parties’ performance, obligations and rights under this Agreement, the Parties shall attempt to negotiate the impact of such changes on the Agreement. If the Parties cannot agree to amend the Agreement pursuant to such regulatory changes, then either Party may terminate this Agreement or if the Parties agree the dispute can be submitted to Arbitration pursuant to Article 24. Any arbitration on this issue shall have as its goal the placement of the Parties in the same business position as they had under this Agreement previous to such regulatory changes. ARTICLE 16. PRIVITY

This Agreement is entered into solely for the benefit of the Parties named in it and not for

665675_1

12

the benefit of any other persons or entities. No other persons or entities may enforce it for their benefit nor shall they have any claim or remedy for its breach. The Parties do not intend to confer third party beneficiary status on anyone.

ARTICLE 17. ASSIGNMENT AND DELEGATION

Except as otherwise provided in this Agreement, no assignment of rights or delegation of duties arising under this Agreement shall be valid without the prior written consent of both Parties. ARTICLE 18. WAIVER

Waiver by the Agency or the Contractor in any one or more instances, of any term, condition, or provision of this Agreement shall not be considered a waiver of that term, or any other term, condition, or provision currently or in the future. ARTICLE 19. GOVERNING LAW

This Agreement is made in, and shall be interpreted, construed, governed, and enforced in accordance with the laws of the Commonwealth of Massachusetts. ARTICLE 20. SEVERABILITY

In the event any provision of this Agreement is deemed invalid or unenforceable by a court of law, the Agreement will be interpreted as though such provision does not appear and the Agreement will be otherwise fully enforceable, unless such a course would lead to a manifestly unreasonable result. ARTICLE 21. GOVERNMENTAL REGULATIONS

This Agreement and all rights, obligations and performance of the Parties hereunder are subject to all present and future applicable orders, regulations, requirements and other duly authorized actions of any governmental authority having jurisdiction over the subject matter hereof. ARTICLE 22. TAXES

The pricing under this Agreement includes any and all federal, state, and local sales and use taxes.

665675_1

13

ARTICLE 23. NOTICE

Any notice required pursuant to this Agreement shall be in writing. In the absence of written notice of change of address to the other Party to this Agreement, any such notice shall be hand-delivered or sent certified mail, return receipt requested, first class postage prepaid, or sent by a nationally recognized express courier service (e.g., Federal Express, UPS, etc.) to the Agency or Contractor at the following address: MASSDEVELOPMENT Contractor ATTN: Jim Moore 33 Andrews Parkway Devens, MA 01434 With a copy to: MassDevelopment Attn: General Counsel 99 High Street, 11th Floor Boston, MA 02110 Notices shall be deemed to have been given as of the date of receipt or any refusal to accept such notice. ARTICLE 24. DISPUTE RESOLUTION

The Parties may pursue any legal or equitable remedy or relieve available to it in order to resolve disputes hereunder. ARTICLE 25. MISCELLANEOUS

25.1 Captions are for convenience only and are not to be construed as part of this Agreement or affect its interpretation.

25.2 This Agreement may be executed in counterparts, each of which shall be

deemed an original, but which together shall constitute one and the same instrument.

25.3 This Agreement shall not be interpreted either more or less favorably toward either Party by virtue of the fact that such Party or its counsel was responsible or principally responsible for the drafting of all or a portion hereof. ARTICLE 26. ENTIRE AGREEMENT AND MODIFICATION

This document, including all exhibits hereto, constitutes the entire Agreement between the Agency and the Contractor with respect to the subject matter hereof and all previous representations and proposals, either written or oral, are hereby annulled and superseded. No modification to this Agreement shall be binding on the Agency or Contractor unless it shall be in writing and signed by both Parties.

665675_1

14

The Agency and the Contractor have each caused this Agreement to be executed by its duly authorized representative as of the day and year first set forth above. ARTICLE 27. INSURANCE 27.1 Contractor’s Insurance and Responsibilities 27.1.1 Contractor Insurance. Prior to the commencement of operation & maintenance services specified herein and throughout the term of this Agreement, Contractor hereby agrees to purchase at its own expense, without limiting its indemnity under the Agreement, and maintain insurance coverage and limits as required under Exhibit E, and shall provide MassDevelopment insurance certificates as stipulated in Exhibit E. The insurance shall be effective as of the commencement of operation & maintenance services specified herein. Deductible amounts shall be the responsibility of Contractor. 27.1.2 Contractor Responsibilities. The provisions of Article 27 do not limit, modify or change any responsibility of Contractor or its subcontractors as stated elsewhere in the Agreement. MassDevelopment assumes no responsibility for the solvency of any insurer to settle any claim. All policies of insurance required hereunder shall be endorsed or shall otherwise provide that Contractor's insurance shall be primary with respect to Contractor's acts or omissions and not be in excess of, or contributing with, any insurance maintained by MassDevelopment and its assigns. Such primary stipulation shall be noted on the Certificate of Insurance as specified in Exhibit E. MassDevelopment shall be named as an additional insured on all policies (except Worker's Compensation and Employer Liability Insurance). The liability policies of insurance shall be endorsed or shall otherwise include a severability of interest or cross-liability clause. All policies shall include waivers of any right of subrogation of the insurers against MassDevelopment and be endorsed or otherwise provide that there will be no recourse against MassDevelopment or any of its successors and assignees for payment of a premium. 27.2 Certificates. The insurance required by this Agreement shall be provided by companies admitted to do business in the Commonwealth of Massachusetts, reasonably acceptable to MassDevelopment or that have a Best Rating of A-, and a financial classification of IX or higher. Certificates in a form acceptable to MassDevelopment showing such coverage in full force and effect shall be delivered to MassDevelopment prior to the commencement of the operation and maintenance services specified herein and from time to time as requested. ________________________ MASSACHUSETTS DEVELOPMENT ________________________ FINANCING AGENCY By: ____________________ By:______________________________ Title: ____________________ Lauren A. Liss Executive Director & President/CEO Approved as to form:

665675_1

15

________________________________ Agency Counsel

665675_1

16

Exhibit A Services

The following services constitute “Base Contract Services” for purposes of this Agreement.

1. System Operation: The Contractor shall provide Base Contract Services for the entire Devens electric distribution system under the direction of a Devens authorized utility representative. Devens shall in writing notify the Contractor within two days of the Commencement Date of the name of the authorized utility representative. During the term of the Agreement the Contractor has the right to review and comment on the system operation of the Devens electric distribution system. Attention should be focused on system safety, integrity and reliability. It is expected that the Contractor will designate a person as point of contact to meet regularly with the Devens representative to review work progress and schedules.

2. Switching: The Contractor shall perform all line side switching, including maintaining

switch logs, standards and procedures consistent with Good Utility Practice. The Contractor will own all switching locks. All switching, transferring of loads, reconnecting of circuits and equipment is considered Base Contract Services. The Devens authorized utility representative shall be notified prior to load transfers, or shortly thereafter in emergency situations.

3. Power Factor Correction and Management: The Contractor shall perform continual

monitoring of the Devens’ system power factor at the West Main Street Substation (“PF”), provide weekly reports, and provide recommendations if the PF begins to drop and approach going below 90% lag or lead.

4. System Planning: The Contractor shall be expected to work with the Devens'

authorized utility representative and consultants to facilitate planning concepts. The Contractor shall be responsible for planning for system maintenance and standards within the parameters of the existing Devens electric distribution system and for master planning for enlargements, expansions, upgrades and construction to and for the Devens Electric distribution system.

5. Design Specifications and Bidding: The Contractor shall review and comment on the

design specifications and the wording on bidding requirements prepared by the Agency or its consultants and/or submit a proposal for design services prepared by a professional electrical engineer.

6. System Standards: The Contractor shall assist the authorized utility representative

with developing standards to maintain Devens Electric distribution system reliability and longevity.

7. Meter Reading: The Contractor shall read customers’ electric revenue meters on a

monthly basis using equipment supplied by MassDevelopment.

665675_1

17

8. Meter Maintenance & Repair: The Contractor shall calibrate and perform full function

testing of customers’ meters as required pursuant to Good Utility Practice and repair or replace meters that are not working properly with Encoder Receiver Transmitter (ERT) equipped meters.

9. Customer Relations: The Contractor will serve as the Agency’s representative for the

Devens’ electrical system as requested by the Agency. The Contractor shall act in a professional manner with all customers.

10. Distribution System Maintenance: The Devens electrical distribution system

includes all overhead and underground facilities owned by MassDevelopment and used in the supply of electricity to the customers in the Devens Regional Enterprise Zone.

11. Annual Tree trimming: The Contractor shall perform annual tree trimming with

a rotating three-year renewal program for the Devens' electric distribution 13.8kV and 4.16kV lines. The Agency shall be responsible for performing tree trimming and mowing on the 69kV transmission lines.

12. Pole Transformer Maintenance: The Contractor shall maintain and inspect the transformers in accordance with the original equipment manufacturers (“OEM”) recommendations.

13. Line Switch and Load Break Maintenance: The Contractor shall visually inspect and operate annually all switches and breaks, including scheduling outages with effected customers for minimum interruption of service. The Contractor shall maintain and inspect load breaks and line switches in accordance with the OEM's recommendation. A report detailing the condition of each line switch will be submitted within 15 days of the inspection date for O&M inspections.

14. Substation Regular Maintenance: There are five (5) substations within the Devens’ electric distribution system: 1) West Main Street Substation (main distribution point); 2) Hospital Road Substation; 3) Lake George Substation; 4) Saratoga Substation; and 5) Givry Substation. Substations are defined as primary points of transmission, transformation and distribution, including transformers, switchgear, fence, buildings and associated equipment within and included in the substation yards. The Contractor shall inspect, maintain and overhaul such five (5) substations in accordance with OEM recommendations as follows:

i. Monthly visual inspection and monthly operational report to include at a minimum: breaker/recloser operations count, load tap changer hi/low indications, voltmeter/ammeter readings for each feeder, transformer oil level, gas pressure, notation of any equipment malfunction or deterioration.

665675_1

18

ii. Annual operation of switchgear; iii. Monthly system inspection; iv. Annual sampling of transformer oil; v. Monthly visual inspection of batteries; vi. Maintenance of the Agency’s substations’ components, including the

Agency’s transformers; vii. Repairs connected to substations and substation components, including

transformers; viii. The substation yard, which includes the switchgear yard, is defined as the

fenced-in area plus 5 feet around the outside of the fence; ix. The Contractor shall maintain vegetation within the substation yard; x. The Contractor shall maintain the substation fence and gate; xi. Maintain the structures within the substation yard, including regular

painting to reduce corrosion including the fence and entrance gate; xii. Maintain the security of the substation yards; and xiii. Provide snow removal for the switchgear yard area.

15. Street Light Maintenance: The Contractor shall maintain all streetlights within

Devens. The Contractor shall respond to and resolve all streetlights that are out of service as called in by Devens' authorized utility representative within 3 business days. The Contractor shall perform biannual system patrols to inspect all streetlights, shall make weekly repairs of streetlights including bulbs, eyes, ballasts and fixtures (replace with LED fixtures) within 3 business days of notification, and shall maintain a streetlight database to track activities.

16. Pole Inspection and Monitoring: The Contractor shall perform pole inspections

on a three-year rotating basis. Pole inspections shall include the following: a) decay monitoring; b) guy wire monitoring; c) cross member monitoring; d) insulator inspection; and e) deflection (if any). The Contractor shall replace missing or worn pole numbers, guy wires, insulators and other appurtenances. Contractor shall provide the Agency with an annual inspection report that shall include any recommended capital work to replace degraded poles as inspection results warrant.

17. Pad mounted transformers: If and when requested by the Agency, the

Contractor shall inspect and overhaul the Devens customers’ pad mounted transformers in accordance with OEM recommendations including:

a) Repair and replacement of non-major system components. b) The Contractor has the right to review and comment on the Devens

customers’ owned pad-mounted transformers. c) The Contractor shall have the right to review and comment upon any

electric connections of the Devens customers to the Devens electric distribution system.

665675_1

19

18. Regulatory Requirements: The Contractor shall be responsible for maintaining regulatory requirements regarding Devens' electric system operations in accordance with all federal, state and local agencies.

19. Work Documentation: The Contractor shall document all work performed under

this Agreement and shall provide such documentation to the Devens' authorized utility representative on a regular basis. The Contractor shall document all system modifications it performs, digitally, in accordance with current standards of Devens (currently in Bentley MicroStation). The Contractor shall submit the documentation at least monthly.

20. Outage Responses: The Contractor shall respond to outages as described in Article 6.

665675_1

20

Exhibit B Capital Improvement Services

Charges for

Capital Projects1 Classification Hourly Labor Rates Electrical Engineer __________________ Line Supervisor __________________ Lineman __________________ Engineering Technician __________________ Administrative Support2 __________________ Material Handling Surcharge __________________ Vehicle Rates Hourly Vehicle Rates Heavy Equipment ___________________ Light Duty ___________________

1. Fees may be adjusted annually on the Commencement Date using the Boston CPI-U index, not to exceed 2.5% nor be less than 0%.

2. The Administrative support rate shall be charged based on ______% of total work order labor charges.

3. Consultants and subcontractors shall be billed at actual costs without a markup. 4. Capital Improvement Services work that is required by Devens to be performed outside

of the regular working hours of _________________ for contractors own system (e.g., 7:00 A.M. – 3:30 P.M., Monday through Friday) shall be considered overtime and shall be billed at the wage rate times a factor of 1.25; provided, however, that Devens shall not be responsible for paying any such overtime where the presence of Contractor’s workers during the overtime period is due to voluntary overtime.

5. The above rates include all employee benefits, routine telephone, computer charges, meals, supplies and overhead, including administrative and routine supervision.

6. Final costs for requested Capital Improvement Services work shall be billed at actual costs that may be higher or lower than the work order estimated cost. Contractor and MassDevelopment shall meet to discuss any changes in the work that is expected to cause a deviation in charges that result in being over or under the work order estimated cost.

7. Materials and supplies shall be purchased through the Commonwealth of Massachusetts or the New England Public Power Association or other competitive bidding process. Such materials and supplies shall be charged at cost. A 10% surcharge is allowed for material handling, stocking, and storage costs, with no state sales tax.

665675_1

21

Exhibit C

Description of the Devens’ Electrical Distribution System

Devens is defined as the Devens Regional Enterprise Zone created by St. 1993, c. 498 and described in Section 2 (3) of that act as the regional development zone created by the act, the boundaries of which include all the land area of Fort Devens lying north of Route 2, part of a former federal military base located in the town of Ayer Harvard, and Shirley and certain land adjacent to Fort Devens owned by the Commonwealth (including property used by the National Guard) and certain land adjacent to Fort Devens currently owned by the Springfield Railway Terminal, Inc. or affiliate thereof or successor thereto, and currently used primarily for railroad purposes. For purposes of this Agreement, the Devens’ electrical distribution system and equipment includes all such infrastructure, transformers and equipment from the New England Power Company’s delivery point at West Main Street substation to the load side of the Devens’ electric customers, including the meters, used to transmit and distribute electricity over which the Agency has ownership and/or control. Access to an electronic map will be provided to illustrate the boundaries of the “Devens Regional Enterprise Zone” that represents the boundaries of the Devens Electric System.

665675_1

22

Exhibit D

Devens GIS & Electronic Data Standard

The following data standards address the requirements of the Massachusetts Development Finance Agency (MDFA) Engineering Department (Engineering) with respect to digital data. These standards apply to all types of information generated by internal and external data users for the purposes of design, construction, demolition, as-builts and client due-diligence projects. Types of data governed include the submission of CAD, GIS, word documents, spreadsheets, databases and images. There are two principal reasons in which the standards will be exercised: 1. To require contractors to adhere to standards when submitting digital data. 2. To provide a protocol for data exchange between MDFA and other data users. The principal point of submission and distribution of MDFA’s base mapping and database information is through the Engineering Department’s MicroStation-based CAD/GIS System. ALL DATA SUBMITTED OR REQUESTED FROM MDFA MUST BE COORDINATED WITH AND APPROVED BY A MDFA STAFF ENGINEER PRIOR TO EXECUTION BY MDFA’S CAD/GIS SYSTEM PERSONNEL. The Engineering Department’s CAD/GIS data standard is frequently modified to meet growing data and project needs and it is for this reason that an updated copy must be requested from Engineering prior to submitting or using MDFA data. All external users of MDFA data that will be submitting data back to Engineering are responsible for requesting a copy of the current data standards as well as any available digital templates, symbology and database files. In cases where the data standard is incomplete, with respect to the data being submitted, it is the responsibility of the submitter to request from Engineering additional definitions or negotiate an alternate submittal format. Engineering requests that all submitted data only include the submitter’s additions or modifications and should never include MDFA’s provided base mapping or design data. IT IS THE RESPONSIBILITY OF THE SUBMITTER TO REVIEW AND COMPLY WITH ENGINEERING’S DATA STANDARD – ANY EXCEPTIONS MUST BE REVIEWED WITH ENGINEERING. Submitted map data must conform to horizontal datum NAD 83, Massachusetts State Plane feet and vertical datum NGVD 1929 feet. Wherever possible submitted map data should reference known MDFA, State or USGS survey control points. A current list of MDFA control points and available field sketches can be requested from Engineering. MDFA’s format requirements for CAD files is MicroStation DGN and for reports, spreadsheets and databases are Microsoft Word, Microsoft Excel and Microsoft Access respectively. Scanned and digital camera images are to be in JPEG format unless otherwise specified. All tabular or spreadsheet information which is related to basemap data must be submitted in either

665675_1

23

Microsoft Access or Microsoft Excel. For example, this may include sampling data for monitoring wells, manhole and utility pole inspections. WHEN SUBMITTING A DATABASE TABLE OR SPREADSHEET, THE SUBMITTER MUST FIRST AGREE ON AN ACCEPTABLE LAYOUT WITH ENGINEERING. In addition to MDFA’s available data standards, all data submitters must include a metadata tag, as described below, with all data submissions. Data documentation, or metadata tags describe, at a minimum the source and content of each piece of information (CADn file, table, etc.) being submitted. Engineering will not accept data not accompanied by a metadata tag. Sample Metadata Tag The following pieces of information are required for documenting and tracking all data which is submitted to the MDFA Engineering Department. To automate the collection of metadata information Engineering can provide a blank Microsoft Access table and form for data entry purposes. Project: Project Name, Number and Brief Description Data Originator: Company Name, Address, Phone Number, Email Contact Person: Primary Project Contact as well as CAD/GIS Contact Date: Submission Date to Engineering Map Name: File Name –Utilize MDFA’s Data Standard where ever possible. Level List: Levels/Layers Used and Descriptions – Utilize MDFA’s Data Standard where ever possible. Content: A brief description of data content. Horizontal Units and Datum: NAD 83, Massachusetts State Plane feet Vertical Units and Datum: NGVD 27 feet Accuracy: e.g. “Meets National Map Accuracy Standards for….” Or other assessment of the data reliability. Data Source: Photography, conventional surveying, GPS, etc. Source Date: Date of photography, surveying, field work, etc. Data Automation: Description of how the data were generated/automated/digitized/mapped. Remarks: Any pertinent information including limitations on how the data should be used. Data Sharing Frequency The majority of data requests made to MDFA come from one-time users to support a specific short-term project need. Other long-term data users such as maintenance contractors, utilities and government agencies have a mission critical need to share data on a more frequent basis. It is for this reason that MDFA requests that long-term data users establish a data sharing schedule with MDFA. MDFA typically recommends a quarterly data-sharing schedule. Data Acceptance Requirements MDFA reserves the right to accept or reject submitted data not meeting published or agreed upon standards and all submittals are SUBJECT to FINAL APPROVAL and ACCEPTANCE by the ENGINEERING DEPARTMENT.

665675_1

24

Exhibit E Insurance

INSURANCE TO BE MAINTAINED BY CONTRACTOR AND SUBCONTRACTORS 1.1 In accordance with the provisions of Article 27, the Contractor and all subcontractors of Contractor shall secure and maintain insurance coverage and limits as specified below: Type Coverage Amount a. Workers' Compensation Statutory b. Employers Liability $500,000 each accident

$500,000 / Disease, policy limit $500,000 Disease, each employee

c. Commercial General Liability $2,000,000 per occurrence

$3,000,000 general aggregate $2,000,000 personal injury

Insurance shall be written ISO occurrence Form (CG 00 01 10 01) or equivalent and must include the following: Premises — Operations; Independent Contractors and Subcontractors Protective; Broad Form Property Damage; Contractual; Contractual Liability (Broad Form providing coverage for the indemnity contained in the Agreement), Including Third Party; Hazard and Personal Injury, with Employee Exclusion ; Coverage shall include per Project aggregate. d. Business Automobile Liability $1,000,000 per accident Insurance on ISO from (CA 00 01) or equivalent must include coverage for: Owned motor vehicles; Hired motor vehicles; and other non-owned vehicles e. Contractors $1,000,000 per occurrence Pollution Liability $2,000,000 aggregate f. Umbrella Liability $10,000,000 per occurrence

$10,000,000 aggregate 1.2 The Contractor shall name the MassDevelopment as Additional Insureds on all liability policies, except for Worker's Compensation and so shall be described on the Certificate of Insurance. Additional Insured endorsement MUST be attached to the Certificate of Insurance and shall be ISO forms: CG 2010 1185 or CG 2010 0704 in combination with CG 2037 0704 or the equivalent. 1.3 Worker's Compensation policy shall contain a waiver of subrogation in favor of MassDevelopment and shall be described as such on Certificate.

665675_1

25

1.4 Contractor and/or Contractor’s subcontractors shall not do anything to cause any of the insurance required to be purchased and maintained under this Agreement to be invalidated in whole or in part. 1.5 Certificates of each renewal of the insurance shall be delivered to MassDevelopment promptly after renewal. The Contractor shall be solely responsible for the timely payment in full of premiums for all insurance required of it hereunder. Should the Contractor fail to provide or maintain any insurance required hereunder, MassDevelopment shall have the right, but not the obligation, to provide or maintain any such insurance, and to deduct the cost thereof from any amounts due and payable to the Contractor, or in the event there are no such amounts due and payable, the Contractor shall reimburse MassDevelopment for such costs on demand.