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12. INDEMNIFICATION Regardless of any coverage provided by any insurance, Independent

13.

14.

15.

16.

Contractor agrees to indemnify and hold harmless the City of Nashua, its agents,
officials, employees and authorized representatives and their employees from and against
any and all suits, causes of action, legal or administrative proceedings, arbitrations,
claims, demands, damages, liabilities, interest, attorney’s fees, costs and expenses of any
kind or nature in any manner caused, occasioned, or contributed to in whole or in part by
reason of any negligent act, omission, or fault or willful misconduct, whether active or
passive, of Independent Contractor or of anyone acting under its direction or control or
on its behalf in connection with or incidental to the performance of this contract.
Independent Contractor’s indemnity and hold harmless obligations, or portions thereof,
shall not apply to liability caused by the sole negligence or willful misconduct of the
party indemnified or held harmless.

FISCAL CONTINGENCY All payments under this contract are contingent upon the
availability to the City of Nashua of the necessary funds. This contract shall terminate
and the City of Nashua's obligations under it shall be extinguished at the end of any fiscal
year in which the City of Nashua fails to appropriate monies for the ensuing fiscal year
sufficient for the performance of this contract.

Nothing in this contract shall be construed to provide Independent Contractor with a right
of payment over any other entity. Any funds obligated by the City of Nashua under this
contract that are not paid to Independent Contractor shall automatically revert to the City
of Nashua’s discretionary control upon the completion, termination, or cancellation of the
agreement. The City of Nashua shall not have any obligation to re-award or to provide,
in any manner, the unexpended funds to Independent Contractor. Independent Contractor
shall have no claim of any sort to the unexpended funds.

COMPENSATION Review by the City of Nashua of Independent Contractor's submitted
monthly invoice forms and progress reports for payment will be promptly accomplished
by the City of Nashua. If there is insufficient information, the City of Nashua may
require Independent Contractor to submit additional information. Unless the City of
Nashua, in its sole discretion, decides otherwise, the City of Nashua shall pay
Independent Contractor in full within 30 davs of approval of the submitted monthly
invoice forms and progress reports.

COMPLIANCE WITH APPLICABLE LAWS Independent Contractor, at all times, shall fully
and completely comply with all applicable local, state and federal laws, statutes,
regulations, ordinances, orders, or requirements of any sort in carrying out the obligations
of this contract, including, but not limited to, all federal, state, and local accounting
procedures and requirements, all immigration and naturalization laws, and the Americans
With Disabilities Act. Independent Contractor shall, throughout the period services are to
be performed under this contract, monitor for any changes to the applicable laws, statutes,
regulations, ordinances, orders, or requirements, shall promptly notify the City of Nashua
in writing of any changes to the same relating to or affecting this contract, and shall
submit detailed documentation of any effect of the change in terms of both time and cost
of performing the contract.

NONDISCRIMINATION If applicable or required under any federal or state law, statute,

regulation, order, or other requirement, Independent Contractor agrees to the following
terms. Independent Contractor will not discriminate against any employee or applicant

GC 8 of 11

17.

18.

for employment because of physical or mental handicap in regard to any position for
which the employee or applicant for employment is qualified. Independent Contractor
agrees to take affirmative action to employ, advance in employment, or to otherwise treat
qualified, handicapped individuals without discrimination based upon physical or mental
handicap in all employment practices, including but not limited to the following:
employment, upgrading, demotion, transfer, recruitment, advertising, layoff, termination,
rates of pay, or other forms of compensation and selection for training, including
apprenticeship.

Without limitation of the foregoing, Independent Contractor's attention is directed to Title
41”Public Contracts and Property Management” C.F.R. Subtitle B “Other Provisions
Relating to Public Contracts” Section 60 “Office of Federal Contract Compliance
Programs, Equal Employment, Department of Labor” which, by this reference, is
incorporated in this contract.

Independent Contractor agrees to assist disadvantaged business enterprises in obtaining
business opportunities by identifying and encouraging disadvantaged suppliers,
consultants, and sub consultants to participate to the extent possible, consistent with their
qualification, quality of work, and obligation of Independent Contractor under this
contract.

In connection with the performance of work under this contract, Independent Contractor
agrees not to discriminate against any employee or applicant for employment because of
race, creed, color, national origin, sex, age, or sexual orientation. This agreement
includes, but is not limited to, the following: employment, upgrading, demotion or
transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or
other forms of compensation, and selection for training, including apprenticeship.

Independent Contractor agrees, if applicable, to insert these provisions in all subcontracts,
except for subcontracts for standard commercial supplies or raw materials. Any violation
of any applicable provision by Independent Contractor shall constitute a material breach
of the contract.

ENDORSEMENT Independent Contractor shall seal and/or stamp and sign professional
documents including drawings, plans, maps, reports, specifications, and other instruments
of service prepared by Independent Contractor or under its direction as required under the
laws of the State of New Hampshire.

ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING Independent Contractor
shall not assign, transfer, delegate, or subcontract any rights, obligations, or duties under
this contract without the prior written consent of the City of Nashua. Any such
assignment, transfer, delegation, or subcontracting without the prior written consent of
the City of Nashua is void. Any consent of the City of Nashua to any assignment,
transfer, delegation, or subcontracting shall only apply to the incidents expressed and
provided for in the written consent and shall not be deemed to be a consent to any
subsequent assignment, transfer, delegation, or subcontracting. Any such assignment,
transfer, delegation, or subcontract shall require compliance with or shall incorporate all
terms and conditions set forth in this agreement, including all incorporated Exhibits and
written amendments or modifications. Subject to the foregoing provisions, the contract
inures to the benefit of, and is binding upon, the successors and assigns of the parties.

GC 9 of 11

19.

TAXES Independent Contractor shall pay all taxes, levies, duties, and assessments of
every nature due in connection with any work performed under the contract and make
any and all payroll deductions required by law. The contract sum and agreed variations
to it shall include all taxes imposed by law. Independent Contractor hereby indemnifies
and holds harmless the City of Nashua from any liability on account of any and all such
taxes, levies, duties, assessments, and deductions.

. NON-WAIVER OF TERMS AND CONDITIONS None of the terms and conditions of this

contract shall be considered waived by the City of Nashua. There shall be no waiver of
any past or future default, breach, or modification of any of the terms and conditions of
the contract unless expressly stipulated to by the City of Nashua in a written waiver.

. RIGHTS AND REMEDIES The duties and obligations imposed by the contract and the

rights and remedies available under the contract shall be in addition to and not a
limitation of any duties, obligations, rights, and remedies otherwise imposed or available
by law.

. PROHIBITED INTERESTS Independent Contractor shall not allow any officer or employee

of the City of Nashua to have any indirect or direct interest in this contract or the
proceeds of this contract. Independent Contractor warrants that no officer or employee of
the City of Nashua has any direct or indirect interest, whether contractual,
noncontractual, financial or otherwise, in this contract or in the business of Independent
Contractor. If any such interest comes to the attention of Independent Contractor at any
time, a full and complete disclosure of the interest shall be immediately made in writing
to the City of Nashua. Independent Contractor also warrants that it presently has no
interest and that it will not acquire any interest, direct or indirect, which would conflict in
any manner or degree with the performance of services required to be performed under
this contract. Independent Contractor further warrants that no person having such an
interest shall be employed in the performance of this contract. If City of Nashua
determines that a conflict exists and was not disclosed to the City of Nashua, it may
terminate the contract at will or for cause in accordance with paragraph 8.

In the event Independent Contractor (or any of its officers, partners, principals, or
employees acting with its authority) is convicted of a crime involving a public official
arising out or in connection with the procurement of work to be done or payments to be
made under this contract, City of Nashua may terminate the contract at will or for cause
in accordance with paragraph 8. Upon termination, Independent Contractor shall refund
to the City of Nashua any profits realized under this contract, and Independent Contractor
shall be liable to the City of Nashua for any costs incurred by the City of Nashua in
completing the work described in this contract. At the discretion of the City of Nashua,
these sanctions shall also be applicable to any such conviction obtained after the
expiration or completion of the contract.

Independent Contractor warrants that no gratuities (including, but not limited to,
entertainment or gifts) were offered or given by Independent Contractor to any officer or
employee of the City of Nashua with a view toward securing a contract or securing
favorable treatment with respect to the awarding or amending or making of any
determinations with respect to the performance of this contract. If City of Nashua
determines that such gratuities were or offered or given, it may terminate the contract at
will or for cause in accordance with paragraph 8.

GC 10 of 11

23.

24.

25.

26.

27.

The rights and remedies of this section shall in no way be considered for be construed as
a waiver of any other rights or remedies available to the City of Nashua under this
contract or at law.

THIRD PARTY INTERESTS AND LIABILITIES The City of Nashua and Independent
Contractor, including any of their respective agents or employees, shall not be liable to
third parties for any act or omission of the other party. This contract is not intended to
create any rights, powers, or interest in any third party and this agreement is entered into
for the exclusive benefit of the City of Nashua and Independent Contractor.

SURVIVAL OF RIGHTS AND OBLIGATIONS The rights and obligations of the parties that
by their nature survive termination or completion of this contract shall remain in full
force and effect.

SEVERABILITY In the event that any provision of this contract is rendered invalid or
unenforceable by any valid act of Congress or of the New Hampshire legislature or any
court of competent jurisdiction, or is found to be in violation of state statutes or
regulations, the invalidity or unenforceability of any particular provision of this contract
shall not affect any other provision, the contract shall be construed as if such invalid or
unenforceable provisions were omitted, and the parties may renegotiate the invalid or
unenforceable provisions for sole purpose of rectifying the invalidity or unenforceability.

MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT This contract constitutes the
entire contract between the City of Nashua and Independent Contractor. The parties shall
not be bound by or be liable for any statement, representation, promise, inducement, or
understanding of any kind or nature not set forth in this contract. No changes,
amendments, or modifications of any terms or conditions of the contract shall be valid
unless reduced to writing and signed by both parties.

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

GC 11 of 11

Item

BID SUMMARY SHEET

IFB0945-112519

EXHIBIT B

Unit__ Quantity From Thru Unit Price _ Total Price
Deluxe Restroom EA 29 01/01/20 Indef 119.00 3,451.00 per billing cycle
Additional Weekly Service - 2X EA 29 01/01/20 Indef 0.00 0.00 per billing cycle
Per Billing Cycle Subtotal... 2... ee ee ee eee et ee 3,451.00
Delivery, Setup, Removal EA 1 01/01/20 01/01/20 0.00 0.00 one time
Deluxe Restroom Subtotal: . . . 3,451.00
Wheelchair Accessible EA 3 01/01/20 Indef 169.00 507.00 per billing cycle
Additional Weekly Service - 2X EA 3 01/01/20 Indef 0.00 0.00 per billing cycle
Per Billing Cycle Subtotal... 0 6 ee ee te ee ee ens 507.00
Delivery, Setup, Removal EA 1 01/01/20 01/01/20 0.00 0.00 one time
Wheelchair Accessible Subtotal:. ....... 507.00

S\ THE CITY OF NASHUA ‘The Gate Ci"

Administrative Services

Purchasing Department

January 30, 2020
Memo #20-078

TO: MAYOR DONCHESS
FINANCE COMMITTEE

SUBJECT: ENERGY RECOVERY UPGRADES — CONSTRUCTION SERVICES — CHANGE
ORDER 4 (VALUE: $49,167)
DEPARTMENT: 1698 WASTEWATER; FUND: WASTEWATER

Please see the aitached communication from David L. Boucher, Superintendent Wastewater Department
dated January 30, 2020 for the information related to this contract.

Pursuant to § 5-78 Major purchases (greater than $10,000) A. All supplies and contractual services,
except as otherwise provided herein, when the estimated cost thereof shall exceed $10,000 shall be
purchased by formal, written contract from the lowest responsible bidder, after due notice inviting bids.

The Superintendent Wastewater Department, the Board of Public Works (January 30, 2020 meeting) and
the Purchasing Department recommend the award of this contract change order 4 in an amount of
$49,167 to Methuen Construction of Plaistow, NH.

Respectfully,
[lp 2 —
Dan Kren

Purchasing Manager

Ce: D Boucher L Fautuex

229 Main Street « Nashua, New Hampshire 03061 * Phone (603) 589-3330 » Fax (603) 589-3233

To:

From:

Re:

B. Motion:

Discussion:

City of Nashua, Public Works Division

Board of Public Works Meeting Date: January 30, 2020

David L. Boucher, Superintendent
Wastewater Department

Energy Recovery Upgrade ~ Methuen Construction Change Order #4

To approve Change Order #4 to the Energy Recovery Upgrade contract with Methuen
Construction Company of Plaistow, NH in an amount not to exceed $49,167.26 for
structural and electrical modifications to the energy recovery room. Funding will be
through: Department: 169- Wastewater; Fund: Wastewater; Activity: Energy Recovery
Upgrade Project.

The energy recovery upgrade project involves upgrading all the major components in the
energy recovery room with new generators, piping, heat exchangers, pumps, controls and
associated electrical components. The contract with Methuen Construction was originally
in the amount of $1,787,378. Change order 1 was for relocating a water expansion tank
and installing pump disconnect switches in the amount of $16,742.40. Change order 2
was for new LED lights and painting the room in the amount of $21,181.16. Change
order 3 was to relocate conduit in the floor slab in the amount of $10,710. The total
contract amount following CO’s 1, 2 and 3 comes to $1,836,011.56.

Change order 4 consists of 3 items. The first item (PCO003) is for new pipe supports into
the existing concrete ceiling in the amount of $19,000.87. The second item (PCO008) is
for modification to the existing floor to support one of the 2 new generators in the amount
of $9,416.00. The third item (PCO009) if for electrical modifications to the MCC, starters
and other electrical components in the amount of $20,750.39. The total of these items
comes to $49,167,26 bringing the new contract value to $1,885,178.82.

B-6.1

CHANGE ORDER
No. 004

PROJECT: Energy Recovery Upgrade DATE OF ISSUANCE: 4/17/19

OWNER: City of Nashua, NH _—

229 Main St, Nashua, NH
{Address}

CONTRACTOR: Methuen Construction Co., Inc OWNER’s Project No. IFB0501-091678
CONTRACT FOR: Energy Recovery Upgrade ENGINEER Waldron Engineering & Construction, Inc.
at Nashua NH Wastewater Treatments ENGINEER’s Project No. 359.01

You are directed to make the following changes in the Contract Documents.
Description:

Purpose of Change Order:
Justification: Refer to attached PCO reviews for project PCOs 003,008,009

Attachments: (List documents supporting change)

CHANGE IN CONTRACT PRICE CHANGE IN CONTRACT TIME
Original Contract Price Original Contract Time
$ 1,787,378.00 280 (final completion)
{days or date}
Previous Change Orders Net change from previous Change Orders
$ 48.633.56 10
{days)
Contract Price prior to this Change Order Contract Time prior to this Change Order
$ _4,836.011.56 290 (final comptetion)
(days of date)
Net Increase (Decrease) of this Change Order Net Increase (decrease) this Change Order
$ 49,167.26 0
(days)
Contract Price with all approved Change Orders Contract Time with all Change Orders
S 1,885,178.82 290 (final completion)
{days or date)

This document will become a supplement to the CONTRACT and all provisions will apply hereto. The
attached Contractor's Revised Project Schedule reflects increases or decreases in Contract Time as
authorized by this Change Order.

Stipulated price and time adjustment includes all costs and time associated with the above described change.
Contractor waives all rights for additional time extension for said change. Contractor and Owner agree that
the price(s) and time adjustment(s) stated above are equitable and acceptable to both parties.

RECOMMENDED: APPROVED: APPROVED: APPROVED:
By: Sosy: By: By:
“Engineer Owners Contracior NADES
Lilo

Date Date Date Date

WALDRON EMGivecHING © CONMETRUC TIN, INC,
To: William Keating, P.E., Project Engineer, Nashua Wastewater Treatment Facility
From: Erich Gustenhoven, P.E. Waldron Engineering & Construction, Inc.
Date: January 17, 2020
Re: Change Order Request Review 003-Revision 2
NWWITFE Energy Recovery Upgrade Project
Attachments: Methuen Construction PCO #003-Revision 2
Mr. Keating:

Waldron has compiled its review based on review of the Owner’s documentation (design
documents, OEM submittals, submittal reviews, RFI responses, and project notes) and the
Contractor’s documentation (RFI’s, Submittals, Reports, issued Change Orders). Specifically;
Waldron has reviewed the issue of additional work associated with the Unistrut pipe support
system, installed on the Energy Recovery Building roof.

Summary Review

Original Schedule Schedule Direct Schedule Schedule Claim
Adjustment claim Impact Assessment Recommended
None n/a Refer to PCO-004 Refer to PCO-004
Original Cost Cost Adjustment Direct Cost Impact Cost Adjustment
claim Assessment Recommended
None $19,000.87 $13,104 to $19,656 $19,000.87

Detailed Review-Base Cost Validity

Methuen has made a claim for the work as required based on RFI responses, submittal reviews
and Field conditions. The claim is based on their work and their subcontractor’s work resulting
from the above. Waldron has reviewed the design documents, OEM submittals, submittal
reviews, and RFI responses regarding this issue. Waldron has relied on vendor quotes, project
cost estimations, historical project data, RS Means, and its own proprietary cost data to review the
cost validity of the work scope.

The original scope of work included supporting pipe by hanging it directly from the roof/ceiling
of the Energy Recovery Building. The revised scope of work included the additional scope of
installation of a unsitrut system below the roof, from which pipe could then be supported.
Methuen included cost associated with supporting the pipe directly from the roof in their original
price. The addition of the Unistrut system did not substantially alter the cost of this work. The
addition of the Unistrut did cause Methuen to incur additional cost associated with installation of
the system itself, for which we recommend that they are compensated. These costs included the
below:

1. Materials such as Unistrut components and Hilti anchors

WALORDS, CO

37 INDUSTRIAL DRIVE =SUIMTEG-1 EXETER,NHO3833 (603) 772-7153

2. Subcontractor services including ground penetrating radar and installation of the Unistrut
system.

3. Self-performed labor including staging delivery of material, material pickup, exploratory
drilling in the ceiling, and conducting pull tests of test anchors.

The table below summarizes the total value of the work.

Claimed Cost Fair Market Value of Allowable Mark-up** Total Value
of Work Work scope Assessment
$19,000.87 $15,891.00 (includes 15% on MC Work $13,104.00 to
materials & equipment)* 10% on Subs (<$50k) $19,656.00
7-1/2% on Subs ($50-100k)
5% on Subs (>100k)

*Market Value Assessment=$1 1,913 to $17,869 (+/- 20%)
** This review assumes all labor performed by subcontractors. See below.

Note that Methuen’s summary page identifies a credit of $4,232.40. This credit is intended to
account for the cost of the original pipe support system. It is incorrectly labelled as “Bond (1%)
and General Liability (1%)”. Waldron evaluated the cost claim on the basis of the incremental
cost increase associated with the addition of the Unistrut system only. Thus no credit is
considered in our evaluation, but since Methuen’s final claim amount falls within the fair value of
the incremental scope of work we take no exception.

Note that some of the material costs were added between the original version and revision 1. This
occurred because some materials were delivered after the original version of the PCO.

Note that after revision | Methuen was asked to clarify GPR charges between this and PCO-008.
As a result, revision 2 was issued with an increase in claimed cost based on these revisions.

Detailed Review-Superintendent Labor Hours
The General Contractor’s superintendent labor hours can only be charged to the project when he

self-performs work. Supervisory duties of GC labor or his subcontractor’s labor are not
chargeable as they are included in the General Contractor’s markup. As noted above, Methuen
has provided a description of work performed directly by the project superintendent. To the best
of our knowledge this information is accurate and we recommend they are compensated.
Including this cost, the Methuen claim still falls within the assessed cost of this scope of work.

Detailed Review-General Contractor Markup

The general Contractor is permitted to mark-up his sub’s work in accordance with the contract
general conditions section 17.3. The schedule of permitted mark-up is shown in the summary
table above. In this PCO, Methuen applied markup correctly, we take no exception.

Detailed Review-Schedule

Methuen reserves their right to claim schedule impacts under separate cover. Methuen PCO-004
is designated to account for delays.

Original Schedule Schedule Direct Schedule Schedule Claim
Adjustment claim Impact Assessment Recommended

None na n/a n/a