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excessive wear and tear; or accident, liquids, power surges, neglect, acis of God or other force majeure events.

5.2. Unless specifically included in this Agreement, Service excludes items that are consumed in the normal operation of
the Equipment, such as batteries or magnetic tapes.; upgrading or reprogramming Equipment; accessories, belt clips,
battery chargers, custom or special products, modified units, or software; and repair or maintenance of any transmission
line, antenna, microwave equipment, tower or tower lighting, duplexer, combiner, or multicoupler. Motorola has no
obligations for any transmission medium, such as telephone lines, computer networks, the internet or the worldwide web, or
for Equipment malfunction caused by the transmission medium.

Section 6. TIME AND PLACE OF SERVICE

Service will be provided at the location specified in this Agreement. When Motorola performs service at Customer's location,
Customer will provide Motorola, at no charge, a non-hazardous work environment with adequate shelter, heat, light, and
power and with full and free access to the Equipment. Waivers of liability from Motorola or its subcontractors will not be
imposed as a site access requirement. Customer will provide all information pertaining to the hardware and software
elements of any system with which the Equipment is interfacing so that Motorola may perform its Services. Unless
otherwise stated in this Agreement, the hours of Service will be 8:30 a.m. to 4:30 p.m., local time, excluding weekends and
holidays. Unless otherwise stated in this Agreement, the price for the Services exclude any charges cr expenses
associated with helicopter or other unusual access requirements; if these charges or expenses are reasonably incurred by
Motorola in rendering the Services, Customer agrees to reimburse Motorola for those charges and expenses.

Section 7. CUSTOMER CONTACT

Customer will provide Motorola with designated points of cantact (list of names and phone numbers} that will be available
twenty-four (24) hours per day, seven (7) days per week, and an escalation procedure to enable Customer's personnel to
maintain contact, as needed, with Motorola.

Section 8. PAYMENT

Unless alternative payment terms are stated in this Agreement, Motorola will invoice Customer in advance for each payment
period. All other charges will be billed monthly, and Customer must pay each invoice in U_S. dollars within twenty (20) days
of the invoice date. Customer will reimburse Motorola for all property taxes, sales and use taxes, excise taxes, and other
taxes or assessments that are levied as a result of Services rendered under this Agreement (except Income, profit, and
franchise taxes of Motorola) by any governmental entity.

Section 9. WARRANTY

Motorola warrants that its Services under this Agreement will be free of defects in materials and workmanship for a period of
ninety (90) days from the date the performance of the Services are completed. In the event of a breach of this warranty,
Customer's sole remedy is to require Motorola to re-perform the non-conforming Service or to refund, on a pro-rata basis,
the fees paid for the non-conforming Service. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.

Section 10. DEFAULT/TERMINATION

10.1. If either party defaults in the performance of this Agreement, the other party will give to the non-performing party a
written and detailed notice of the default. The non-performing party will have thirty (30) days thereafter io provide a written
plan to cure the default that is acceptable to the other party and begin implementing the cure plan immediately after plan
approval. If the non-performing party fails to provide or implement the cure plan, then the injured party, in addition to any
other rights available to it under law, may immediately terminate this Agreement effective upon giving a written notice of
termination to the defaulting party.

10.2. Any termination of this Agreement will not relieve either party of obligations previously incurred pursuant to this
Agreement, including payments which may be due and owing at the time of termination. All sums owed by Customer to
Motorola will become due and payable immediately upon termination of this Agreement. Upon the effective date of
termination, Motorola will have no further obligation to provide Services.

Section 11. LIMITATION OF LIABILITY

Except for personal injury or death, Motorola's total ifability, whether for breach of contract, warranty, negligence, strict
liability in tort, or otherwise, will be limited to the direct darnages recoverable under law, but not to exceed the price of twelve
months of Service provided under this Agreement. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF
SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL
LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS GR SAVINGS; OR OTHER
SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM
THIS AGREEMENT OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. No
action for contract breach or otherwise relating to the transactions contemplated by this Agreement may be brought more

than three (3) years after the accrual of the cause of action, except for money due upon an open account. This limitation of
liability will survive the expiration or termination of this Agreement and applies notwithstanding any contrary provision.

Section 12. EXCLUSIVE TERMS AND CONDITIONS

12.1. This Agreement supersedes all prior and concurrent agreements and understandings between the parties, whether
written or oral, related to the Services, and there are no agreements or representations concerning the subject matter of this
Agreement except for those expressed herein. The Agreement may not be amended or modified except by a written
agreement signed by authorized representatives of beth parties.

12.2. Customer agrees to reference this Agreement on any purchase order issued in furtherance of this Agreemeni,
however, an omission of the reference to this Agreement will not affect its applicability. In no event will either party be bound
by any terms contained in a Customer purchase order, acknowledgement, or other writings unless: the purchase order,
acknowledgement, or other writing specifically refers to this Agreement; clearly indicate the intention of both parties to
override and modify this Agreement; and the purchase order, acknowledgement, or other writing is signed by authorized
representatives of both parties.

Section 13. PROPRIETARY INFORMATION; CONFIDENTIALITY; INTELLECTUAL PROPERTY RIGHTS

13.1. Any information or data in the form of specifications, drawings, reprints, technical information or otherwise furnished
to Customer under this Agreement will remain Motorcla’s property, will be deemed proprietary, will be kept confidential, and
will be promptly returned at Motorola's request. Customer may not disclose, without Motorola's written permission or as
required by law, any confidential information or data to any person, or use conjidential information or data for any purpose
other than performing its obligations under this Agreement. The obligations set forth in this Section survive the expiration or
termination of this Agreement.

13.2. Unless otherwise agreed in writing, no commercial or technical information disclosed in any manner cr at any time by
Customer to Motorola will be deemed secret or confidential. Motorola will have no obligation to provide Customer with
access to its confidential and proprietary information, including cost and pricing data.

13.3. This Agreement does not grant directly or by implication, estoppel, or otherwise, any ownership right or license under
any Motorola patent, copyright, trade secret, or other intellectual property, including any intellectual property created as a
result of or related to the Equipment sold or Services performed under this Agreement.

Section 14. FCC LICENSES AND OTHER AUTHORIZATIONS

Cusiomer is solely responsible for obtaining licenses or other authorizations required by the Federal Communications
Commission or any other federal, state, or local government agency and for complying with all rules and regulations required
by governmental agencies. Neither Motorola nor any of its employees is an agent or representative of Customer in any
governmental matters.

Section 15. INTENTIONALLY OMITTED

Section 16. MATERIALS, TOOLS AND EQUIPMENT

All tools, equipment, dies, gauges, models, drawings or other materials paid for or furnished by Motorola for the purpose of
this Agreernent will be and remain the sole property of Motorola. Customer will safeguard all such property while it is in
Customer's custody or control, be liable for any loss or damage to this property, and return it to Motorola upon request. This
property will be held by Customer for Motorola's use without charge and may be removed from Customer's premises by
Motcrola at any time without restriction.

Section 17. GENERAL TERMS
17.1. If any court renders any portion of this Agreement unenforceable, the remaining terms will continue in full force and
effect.

17.2. This Agreement shall be governed by the laws of the State of New Hampshire and any claim or action brought relating to
this Agreement, the work performed or contracted to be performed hereunder shall be brought in Hillsborough County (New
Hampshire) Superior Court Southern Judicial District or in the New Hampshire 9" Circuit Court, Nashua.

17.3. Failure to exercise any right will not operate as a waiver of that right, power, or privilege.

17.4. Neither party is liable for delays or jack cf performance resulting from any causes that are beyond that party's
reasonable control, such as strikes, material shortages, or acis of God,

17.5. Motorola may subcontract any of the work, but subcontracting will not relieve Motorola of its duties under this
Agreement.

17.6. Except as provided herein, neither Party may assign this Agreement or any of its rights or obligations hereunder
without the prior written consent of the other Party, which consent will not be unreasonably withheld. Any attempted
assignment, delegation, or transfer without the necessary consent will be void. Notwithstanding the foregoing, Motorola
may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer. In
addition, in the event Motorola separates one or more of its businesses (each a “Separated Business”), whether by way of a
sale, establishment of a joint venture, spin-off or otherwise (each a “Separation Event’), Motorola may, without the prior
written consent of the other Party and at no additional cost to Motorala, assign this Agreement such that it will continue to
benefit the Separated Business and its affiliates (and Motorola and its affiliates, to the extent applicable) following the
Separation Event.

17.7. THIS AGREEMENT WILL RENEW, FOR AN ADDITIONAL ONE (1} YEAR TERM, ON EVERY ANNIVERSARY OF
THE START DATE UNLESS EITHER THE COVER PAGE SPECIFICALLY STATES A TERMINATION DATE OR ONE
PARTY NOTIFIES THE OTHER IN WRITING OF ITS INTENTION TO DISCONTINUE THE AGREEMENT NOT LESS
THAN THIRTY (30) DAYS OF THAT ANNIVERSARY DATE. At the anniversary date, Motorola may adjust the price of the
Services to reflect its current rates.

17.8. lf Motorola provides Services after the termination or expiration of this Agreement, the terms and conditions in effect
at the time of the termination or expiration will apply to those Services and Customer agrees to pay for those services on a
time and materials basis at Motorola’s then effective hourly rates.

17.9 This Agreement may be executed in one or more counterparts, all of which shall be considered part of the
Agreement. The parties may execute this Agreement in writing, or by electronic signature, and any such electronic signature
shail have the same iegal effect as a handwritten signature for the purposes of validity, enforceability and admissibility. ln
addition, an electronic signature, a true and correct facsimile copy or computer image of this Agreement shall be treated as
and shall have the same effect as an original signed copy of this document.

Revised Oct 15, 2015

SUA ADDENDUM

This Addendum to the Communications System and Services Agreement or other previously executed
Agreement currently in force, as applicable (“Primary Agreement”) provides additional or different terms and
conditions to govern the sale of SUA services. The terms in this Addendum are integral to and incorporated into
the Primary Agreement signed by the Parties.

1. DEFINITIONS

All capitalized terms not otherwise defined herein shall have the same meaning as defined in the Agreement.
“SUA” or “SUA II” means Motorola’s Software Upgrade Agreement program.

2. SCOPE

Motorola will provide SUA Services as further described in the applicable Statement of Work, or attachment to
Motorola's proposal for additional services.

3. TERMS AND CONDITIONS

The terms of the Primary Agreement combined with the terms of this Addendum will govern the products and
services offered pursuant to this Addendum. To the extent there is a conflict between the terms and conditions of
the Primary Agreement and the terms and conditions of this Addendum, this Addendum takes precedence.

3.2 SUASERVICES

3.2.1 PURCHASE ORDER ACCEPTANCE. Purchase orders for SUA services and software support,
during the Warranty Period or after the Warranty Period, become binding only when accepted in writing by
Motorola.

3.2.2 The Software License Agreement included as Exhibit A to this Addendum applies to any Motorola
Software provided as part of the SUA transactions.

3.2.3 The term of this Addendum is one year years, commencing on the Start Date identified on the
Cover Page. The SUA Price for the one (1) year of service is $193,963.80, excluding applicable sales or use
taxes but including discounts as more fully set forth in the pricing pages. Because the SUA is a subscription
service as more fully described in the applicable SUA Statement of Work, payment from Customer is due in
advance and will not be in accordance with any Payment Milestone Schedule.

3.2.4 The System upgrade will be scheduled during the subscription period and will be performed when
Motorola’s system upgrade operation resources are available. Because there might be a significant time frame
between when this Amendment is executed and when a System upgrade transaction is performed, Motorola may
substitute any of the promised Equipment or Software so long as the substitute is equivalent or superior to the
initially promised Equipment or Software.

3.2.5 Acceptance of a SUA transaction occurs when the Equipment (if any) and Software are delivered
and the SUA services are fully performed; there is no Acceptance Testing with a SUA transaction.

3.2.6 The Warranty Period for any Equipment or Motorola Sottware provided under a SUA transaction
will commence upon shipment and not on System Acceptance or Beneficial Use, and is for a period of ninety (90)
days rather than one (1) year. The ninety (90) day warranty for SUA services is set forth in the SUA Statement of

Work,

3.2.7 In addition to the description of the SUA services and exclusions provided in the SUA Statement of
Work, the following apply:

a) Upon reasonable request by Motorola, Customer will provide a complete serial and model
number list of the Equipment.

b) SUA services exclude the repair or replacement of Equipment that has become defective or
damaged from use in other than the normai, customary, intended, and authorized manner; use
not in compliance with applicable industry standards; excessive wear and tear; or accident,
liquids, power surges, neglect, acts of God or other force majeure events.

c) Unless specifically included in this Addendum or the SUA Statement of Work, SUA services
exclude items that are consumed in the normal operation of the Equipment; accessories; and
repair or maintenance of any transmission line, antenna, microwave equipment, tower or tower
lighting, duplexer, combiner, or multicoupler. Motorola has no obligations for any transmission
medium, such as telephone lines, computer networks, the internet or the worldwide web, or for
Equipment malfunction caused by the transmission medium.

d) Customer will provide Motorola with designated points of contact (list of names and phone
numbers) that will be available during the performance of the SUA services.

3.2.8 The SUA annualized price is based on the fulfillment of the two year cycle. If Customer terminates
this service during a two year cycle, except for Motorola’s default, then Customer will be required to pay for the

balance of payments owed for the iwo year cycle if a major system release has been impiemented before the
point of termination.

3.2.9 SUA INFLATION ADJUSTMENT. For multi-year agreemenis, at the end of the first year of the
Agreement and each year thereafter, a CPI percentage change calculation shall be performed using the U.S.
Department of Labor, Consumer Price Index, all Items, Unadjusted Urban Areas (CPI-U). Should the annual
inflation rate increase greater than 3% during the previous year, Motorola shall have the right to increase ail
future maintenance prices by the CPI increase amount exceeding 3%. Ali items, not seasonally adjusted shall
be Used as the measure of CPI for this price adjustment. Measurement will take place once the annual average
for the new year has been posted by the Bureau of Labor Statistics. For purposes of illustration, if in year 5 the
CPi reported an increase of 8%, Motorola may increase the Year 6 price by 5% (8%-3% base).

4. ENTIRE AGREEMENT. This Addendum, any related attachments, and the Agreement, constitutes the
entire agreement of the Parties regarding the subject matter of this Addendum and supersedes all previous
agreements, proposals, and understandings, whether written or oral, relating to this subject matter. This
Addendum may be amended or modified only by a written instrument signed by authorized representatives of
both Parties. The preprinted terms and conditions found on any Customer purchase or purchase order,
acknowledgment or other form will not be considered an amendment or modification of this Addendum, even if a
representative of each Party signs that document.

END

(22 THE CITY OF NASHUA ‘The Gate City”
tes)

Administrative Services
Purchasing Department

July 28, 2020
Memo #21-016

TO: Mayor Donchess
Finance Committee
SUBJECT: Energy Recovery Upgrade Change Order
Please see attached communications from David Boucher, Superintendent of the Wastewater

Department dated July 23, 2020 for project specific details related to this purchase. Below please find a
summary of the purchase approval request:

Item: Change Order - Energy Recovery Upgrade
Value: $39,315 (not to exceed)

Orig Approval: $1,911,588.27

Vendor: Methuen Construction

Department: 169 Wastewater
Source Fund: Wastewater

Ordinance: 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 (July 23, 2020 meeting) and the
Purchasing Department respectfully request your approval of this contract.

Regards,

Kelly Parkinson
Purchasing Manager

Ce: D Boucher
C O’Connor

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

To:

From:

Re:

B. Motion:

Attachment:

Discussion:

City of Nashua, Public Works Division

Board of Public Works Meeting Date: July 23, 2020

David L. Boucher, Superintendent
Wastewater Department

Energy Recovery Upgrade — Methuen Construction Change Order #7

To approve Change Order #7 to the Energy Recovery Upgrade contract with Methuen
Construction Company of Plaistow, NH in an amount not to exceed $39,315 for various
mechanical, instrumentation and electrical modifications to the energy recovery room.
Funding will be through: Department: 169- Wastewater; Fund: Wastewater; Activity:
Energy Recovery Upgrade Project.

Summary of PCO Items for Change Order #7

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 orders 1 thru 6 added $124,210.27 to the contract
value bringing the new contract amount to $1,911,588.27,

Change order #7 consists of 9 additional items from the contractor (PCO 18, 21, 22, 23,
25, 27, 28, 29 and 30. PCO’s 21, 22, 25 occurred as a result of generator supplier Milton
CAT requiring changes to construction after the project was bid. PCO 23 is an item
required by Eversource before electricity can be supplied back to the grid (after the
project was bid). PCO 18 and 24 occurred as a result of the Wastewater Plant changing
the location of the gas skid. PCO24 has been denied and is considered covered by
PCOO18. The remaining PCOs, 27, 28 and 29 are justified as these items that were not in
contract and/or unexpected field conditions encountered during construction. PCO30 is to
have the Contractor’s integrator provide SCADA setup for the new controls. Originally
that was going to be done in-house, but the electrician that was going to do the SCADA
setup no longer works for the City. Waldron has lowered the amounts requested in many
of these PCO’s for various reasons as described in the backup material. The new contract
value following approval of these change orders will be $1,950,903.27.

B-6.1

CHANGE ORDER
No. 007
PROJECT: Energy Recovery Upgrade DATE OF ISSUANCE: 7/15/20
OWNER: City of Nashua, NH
229 Main St, Nashua, NH
(Address)

CONTRACTOR: Methuen Construction Co., Inc OWNER’s Project No. [FB0501-091618
CONTRACT FOR: Energy Recovery Uparade ENGINEER Waldron Engineering & Construction, Inc.

at Nashua NH Wastewater Treatment ENGINEER’s Project No. 359.01

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

Description:

Purpose of Change Order:

Justification:

Attachments: (List documents supporting change)
CHANGE IN CONTRACT PRICE

CHANGE IN CONTRACT TIME

Original Contract Price
$ 1,787,378.00

Original Contract Time

280 (final completion)
(days or date}

Previous Change Orders Net change from previous Change Orders

$ 124,210.27 10
(days)

Contract Price prior to this Change Order
3 1,911,588,.27

Contract Time prior to this Change Order

290 (final completion)
(days or date)

Net Increase (Decrease) of this Change Order
$ 39,315.00

Net Increase (decrease) this Change Order

0
(days)

Contract Price with all approved Change Orders
$ 1,950,903.27

Contract Time with all Change Orders
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: ainet#, BY: By: By:
ineer Owner Contractor NHDES
7/15/20

Bate Date Bate Date

MC PZO

PCO18
PCO13
PCO29

PCO21
PCO22

PCO23
PCO24

PCO2Z5
PCO25
PCO27
PCO2Z8

PCO23

PCO30

Summary of PCO Items for Change Order 7

Description

Fuel Blending Skid relocatior
Chimney Stack support
Fuel train gas vents

Install Oil Mister
Piping relocation for generators

Install wiring T7 to switchgear
Blending skid vents

Fuel train fabrication

Natural Gas Emission Testing
Recering Stack 2

Electrical costs due to damage wires
Upgrade SCADA HMI Interface
Reconnect gas pressure transmitter
to new control panel

Total for CO7:

McC = Methuen Construction
PCO=Proposed Change Order

Energy Recovery Upgrades project

Amount
MCCOST Allowed Comments
by Waldron
10108 6652 not enough deduct cn original skid
3126 0 was "as equal" to specs thir no payment
6714.78 0 MC did not read pians correctly on where vent
pipe is to terminate at designated location
5648.38 3936 Waldron recommend 1/2 assessed costs
1837.55 891 Assessed at 1/2 value of work since flex hose
installation on generator was foreseeable work
51714 5171 required by Eversource
9749.52 0 should have been part of PCO018; not clear
any extra piping req'd due to skid relocation
2743.06 2743 justified since Milton CAT equipment required
changes to pipe fabrication
6725 0 Denied by Waldron-within scope of work
1109 1109 Approved by Waldron
17168 736 Extra electrical cost should be expected when
walls and/or floor was demoed as shown on plans
13452.26 10454 Justified as originally to be done by NWTF; but
assessed at fair market value of work
7707.75 7623 Justified as tranmitter is existing but was not connected
Requires coring hole thru wall to new control panel location
$39,315.00

WALDRON ENGINEERING & CONSTRUCTION, INC.

To: William Keating, P.E., Project Engineer, Nashua Wastewater Treatment Facility
From: Jeremy P. Smith, P.E., Waldron Engineering & Construction, Inc.
Date: June 26, 2020
Re: Change Order Request Review 018
NWWYTFE Energy Recovery Upgrade Project
Attachments: Methuen Construction PCO-018 Fuel blending skid relocation
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 relocation of the fuel
blending skid.

Summary Review

Original Schedule Schedule Direct Schedule Schedule Claim
Adjustment claim Impact Assessment Recommended
None 10 0 0
Original Cost Cost Adjustment Direct Cost Impact Cost Adjustment
claim Assessment Recommended
None $10,108 $9,633 to $14,450 $6,652

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 relocation of the fuel blending skid was to maintain access to the digester equipment. MC did
need to extend piping and provide on-wall pipe supports. MC was able to remove pipe stanchion
supports that would have been required in the original design. MC was also able to remove
foundations for pipe stanchions.

Overall Waldron concurs with MC’s representation of their costs, but recommends a higher value
be assigned to the deduct.

37 INDUSTRIAL DRIVE §=SUITEG-1 EXETER,NHO3833 (603) 772-7159

WALDRON COM