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=) THE CITY OF NASHUA “The Gate City’

Financial Services

Purchasing Department

June 30, 2016
Memo #1 7-012

TO: MAYOR DONCHESS
FINANCE COMMITTEE

SUBJECT: FY17 BIO-DIESEL FUEL CONTRACT FOR NASHUA TRANSIT (VALUE $1.8457 PER
GALLON)
DEPARTMENT: 186 NASHUA TRANSIT; FUND: GRANT FUNDS
ACCOUNT CLASSIFICATION: 61 FUEL

Please see attached communication from Sarah Marchant, Community Development Division
Director, dated June 4, 2016 for information related to this contract award.

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.

Sarah Marchant, Director of Community Development and the Purchasing Department
recommend the award of this contract to East River Energy of Guilford, CT in the amount of

$1.8457 per gallon.

Respectfully,

MeHibe—

(Dan Kooken
Purchasing Manager

Ce: S. Marchant J. Graziano

ppg Main Street » Nashua, New Hampshire 03061 « Phone (603) 589-3330 « Fax (603) 589-3344

Community Development

City of Nashua Planning and Zoning
Building :
Community Development Division Uren Programs.
City Hall, 229 Main Street, PO Box 2019 oon
Nashua, New Hampshire 03061-2019 Transit Department

To: Dan Kooken, Purchasing Manager
From: Sarah Marchant, Division Director
Date: June 4, 2016

Re: FY17 Bio-Diesel Fuel Contract for Nashua Transit

588-3095
589-3090
589-3080
689-3100
589-3085
589-3070
589-3105
880-0100

www.gonashua.com

For the past fiscal year (FY16), Nashua Transit had contracted with East River Energy at the fixed
price of $2.1873 per gallon.

For FY17 Nashua Transit went back out to bid to see what potential vendors could offer as a fixed
rate price for BS Rack Blend fuel. The RFP was posted on the City website under RFP0464-052616
and sent to 11 known biodiesel suppliers. Two (2) qualified bids were received as follows:

1. Dennis K. Burke — Rack Blend - Fixed Price $1.9327
2. East River Energy — Rack Blend - Fixed Price $1.8457

East River was the low bidder. East River Energy is a reputable and responsible company. They
have given us the lowest price and also use the Rack Blend method of mixing the fuel that we had
encouraged.

The Community Development Division recommends that the biodiesel contract be awarded to
East River Energy of Guilford, Connecticut, for a period of twelve months expiring on June 30,
2017, with a one-year option to extend at the same price.

B5 BIODIESEL AGREEMENT BETWEEN
THE CITY OF NASHUA, NH
AND
EAST RIVER ENERGY

THIS AGREEMENT is made and entered into effective as of July 1, 2016 by and between the
City of Nashua, located at 229 Main Street, Nashua, NH 03060 (the "CITY" or “Purchaser”) and
East River Energy, located at 401 Soundview Road, P.O, Box 388, Guilford, CT 06437-
0388(the "CONTRACTOR").

WITNESSETH

WHEREAS, the CITY is desirous of obtaining B5 Biodiesel fuel blend for the Nashua Transit
System. NOW, THEREFORE, in consideration of the foregoing recitals and covenants and
agreements of each of the parties herein set forth, the parties do agree as follows:

1. CONTRACTOR SERVICES

The CITY does hereby engage and retain the CONTRACTOR to deliver BS-Bio-diesel fuel
blend on a year-round basis. It is required that the BS Biodiesel product being supplied is
formulated utilizing "premium ultra-low sulfur #2" blend stock on a year-round basis.

CONTRACTOR will follow the guidelines listed below for the minimum protection cloud points
required. All fuel as delivered shall meet or exceed the cloud point requirements as stated below
unless superseded by requirements stated at time of order:

ADDITIVE WINTER PREMIUM DIESEL CLOUD POINT REQUIREMENTS
October 1st to December 14th - "B5 fuel delivered" with a required cloud point that
meets or exceeds + 8° cloud point

December 15th to March 14" - "BS fuel delivered" with a required cloud point that meets
or exceeds -5° cloud point

March 15" to September 30" - "B5 fuel delivered" with a required cloud point that meets
or exceeds + 20° cloud point

2. COMMENCEMENT AND TERM
Deliveries shall commence upon the full execution of this Agreement and shall proceed
diligently and in good faith from July 1, 2016 through June 30, 2017, with a one year option to

extend at the same price, which option shall be at the City’s sole discretion.

° The CONTRACTOR will deliver quantities requested to 11 Riverside Street within a
24- hour time period. Friday requests wiil be delivered on Monday.

The CONTRACTOR’s drivers will take precautions to prevent spillage during
deliveries. Driver will immediately notify CITY personnel of problems resulting
from defective equipment at the 11 Riverside Street, Nashua NH facility. The City
of Nashua will not be responsible for spillage during deliveries.

Delivcrics will be via tanker loads or small truckloads depending on order size.
Orders are called in and most deliveries are in the 7,000-10,000 gallon range with the
exception of fiscal year end when the CITY may request | or 2 deliveries in the area
of 1,000 gallons each.

Quantity stated is an estimate based on history and anticipated needs. The CITY shall
not be bound to this specific quantity to fulfill the agreement.

Deliveries must be made between 6:00am - 9:00pm EST.

The bio-diesel component must meet ASTM-D-6751 code and the final blend must
meet the requirements of the D975 code.

The bio-diesel product must include a cold weather additive.
An authorized CITY of Nashua employee must sign all delivery slips.

All invoices must be forwarded to CITY of Nashua, c/o Accounts Payable, City Hall,
229 Main Street, PO Box 2019, Nashua NH 03061-2019. Invoices must identify the
delivery point, date and quantity, and must include proof of delivery slip.

Delivery price will be $ 1.8457 per gallon for the duration of this agreement,
including options.

The CONTRACTOR’s Certificate of Liability Insurance must be on file at the
CITY's Purchasing Office and Risk Management Department. New certificates must
be forwarded as coverage is renewed.

No confirming purchase order will be mailed to the CONTRACTOR from the CITY.

Nashua Transit, acting for the CITY, will issue draw-down orders to cover processing
of invoices. However, no purchase order needs to be referenced on invoices.
Location of delivery point is the critical data to identify the CITY of Nashua cost

center.
All requests for delivery will come from an authorized CITY employee.

The CITY is utilizing funding from the Federal Transit Administration for this
project. The federally required FTA clauses for this contract can be found in the
attached document Exhibit A- FTA Clauses which are incorporated herein by
reference.

3. INSURANCE REQUIREMENTS

CONTRACTOR shall carry and maintain in effect during the performance of services under this
contract:

> General Liability (which must include hazardous material/waste coverage):

$1,000,000 per Occurrence
$2,000,000 Aggregate
_ (City of Nashua Additional Insured)

> Motor Vehicle Liability:
$1,000,000 Combined Single Limit *coverage must include all owned, non-owned and

hired vehicles.
(City of Nashua Additional Insured)

> Workers’ Compensation Coverage according to Statute of the State of New

Hampshire:
$100,000 / $500,000 / $ 100,000

(Sole Proprietors not subject to Workers' Compensation requirements)

CONTRACTOR and subcontractors at every tier will fully comply with NH RSA Chapter 281-
A, "Workers' Compensation".

CONTRACTOR shall maintain in effect at all times during the performance under this contract
all specified insurance coverage with insurers. None of the requirements as to types and limits to
be maintained by CONTRACTOR are intended to and shall not in any manner limit or qualify
the liabilities and obligations assumed by CONTRACTOR under the contract. The CITY shall
not maintain any insurance on behalf of CONTRACTOR. Subcontractors are subject to the same
insurance requirements as the CONTRACTOR and it shall be the CONTRACTOR's
responsibility to ensure compliance of this requirement.

The parties agree that CONTRACTOR shall have the status of and shall perform all work under
this agreement as an independent contractor, maintaining control over all its consultants, sub
consultants, contractors, or subcontractors. The only contractual relationship created by this
agreement is between the CITY and CONTRACTOR, and nothing in this agreement shall create
any contractual relationship between the CITY and CONTRACTOR's consultants, sub
consultants, contractors. The parties also agree that CONTRACTOR is not a CITY employee
and that there shall be no:

1. Withholding of income taxes by the CITY;
2. Industrial insurance coverage provided by the CITY;
3. Participation in group insurance plans which may be available to employees of the CITY;

4, Participation or contributions by either the CONTRACTOR or the CITY to the public
employees retirement system;

Accumulation of vacation leave or sick leave provided by the CITY;

6. Unemployment compensation coverage provided by the CITY.

a.

CONTRACTOR will provide the CITY with certificates of insurance for coverage, as listed, and
endorsements affecting coverage required by the Agreement. The CITY requires thirty days
written notice of cancellation or material change in coverage. The certificates and endorsements
for each insurance policy must be signed by a person authorized by the insurer and who is

licensed by the State of New Hampshire. General Liability, Employers’ Liability and Auto

Liability policies must name the City of Nashua as an additional insured and reflect on the
certificate of insurance. CONTRACTOR is responsible for filing updated certificates of

insurance with the City of Nashua's Risk Management Department during the life of the

contract.

>» All deductibles and self-insured retentions shall be fully disclosed in the certificate(s) of
insurance.

> If aggregate limits of less than $2,000,000 are imposed on bodily injury and property
damage, CONTRACTOR must maintain umbrella liability insurance of at least
$1,000,000. All aggregates must be fully disclosed on the required certificate of
insurance.

> The specified insurance requirements do not relieve CONTRACTOR of its
responsibilities or limit the amount of its liability to the CITY or other persons, and
CONTRACTOR is encouraged to purchase such additional insurance, as it deems
necessary.

> The insurance provided herein is primary, and no insurance held or owned by CITY shall!
be called upon to contribute to a loss.

> CONTRACTOR is responsible for and required to remedy all damage or loss to any
property, including property of the CITY, caused in whole or part by CONTRACTOR or
anyone employed, directed, or supervised by CONTRACTOR.

Regardless of any coverage provided by any insurance, CONTRACTOR agrees to indemnify
and shall defend and hold harmless the CITY, 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 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. CONTRACTOR's indemnity, defense and hold harmless obligations, or portions

thereof, shall not apply to liability caused by the negligence or willful misconduct of the party
indemnified or held harmless.

4. GOVERNING LAW AND VENUE

This Agreement shall be interpreted and enforced in accordance with the laws of the State of
New Hampshire, excluding any choice of law or conflicts of law rules that would result in the
application of the laws of a different jurisdiction, and any claim or action brought relating to this
Agreement, the work or services performed or contracted to be performed thereunder, or
referable in any way thereto shall be brought in Hillsborough County (New Hampshire) Superior
Court Sothem Judicial District or in the New Hampshire 9" Circuit Court- Nashua and not

elsewhere..
5. SEVERABILITY

If any provision of this Agreement is determined to be void, unlawful, or otherwise
unenforceable, that provision shall be severed from the remainder of this Agreement, and
replaced automatically by a provision containing terms as nearly like the void, unlawful, or
unenforceable provision as possible, or otherwise modified in such fashion as to preserve, to the
maximum extent possible, the original intent of the Parties, and this Agreement, as so modified,
shall continue to be in full force and effect.

6. AMENDMENT

No modification, amendment, or other change to this Agreement shall be effective unless agreed
to in a writing signed by each of the Parties.

Any proposed modification to the Scope of Work, including schedule, shall be submitted in
writing to the CITY with an explanation for the need to amend the Agreement and proposed
adjustment.

7. NO WAIVER

Failure or forbearance by any Party to exercise any of its nghts or remedies under this
Agreement shall not constitute a waiver of such rights or remedies in that or any other instance.
No Party shall be deemed to have waived any right or remedy resulting from such failure to
perform unless it has made such waiver specifically in writing.

8. TERMINATION

This Agreement can be terminated, in its sole discretion, by the CITY at any time, and
CONTRACTOR will be paid for all work performed up to the termination date. The CITY shall
have the benefit of all work performed to the date of termination, and is entitled to all work,
reports, drafts, notes, recommendations, etc. performed or prepared by CONTRACTOR up to the

termination date. For termination by default and other termination provisions, please refer to the
FTA clauses located within Exhibit A.

9. ENTIRE AGREEMENT

This Agreement and any amendments to this Agreement contain the complete agreement
between the Parties with respect to the subject matter of this Agreement and supersede all other
agreements and understandings, whether written or oral, with respect to the matters contained in

this Agreement, including any letters of intent, term sheets or similar proposals exchanged by the
Parties.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective as of the

CITY OF NASHUA
By: James W. Donchess, Duly Authorized

Signature:

Title: Mayor

Date:

EAST RIVER ENERGY
By: . Duly Authorized

Signature:

Title:

Date:

Exhibit A:
FTA CLAUSES

No Government Obligation to Third Parties

The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal
Government in or approval of the solicitation or award of the underlying contract, absent the express
written consent by the Federal Government, the Federal Government is not a party to this contract and shall
not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or
not a party to that contract) pertaining to any matter resulting from the underlying contract.

The Contractor agrees to include the above clause in each subcontract financed in whole or in part with
Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to
identify the subcontractor who will be subject to its provisions.

Program Fraud and False or Fraudulent Statements and Related Acts

31 U.S.C. 3801 et seq.
49 CFR Part 31 18 U.S.C. 1001
49 U.S.C. 5307

The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as
amended, 31 U.S.C. § § 3801 et seq . and U.S. DOT regulations, "Program Fraud Civil Remedies,” 49
C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the
Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may
make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this
contract work is being performed. In addition to other penalties that may be applicable, the Contractor
further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim,
statement, submission, or certification, the Federal Government reserves the right to impose the penalties of
the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government
deems appropriate.

The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent
claim, staternent, submission. or certification to the Federal Government under a contract connected with a
project that is financed in whole or in part with Federal assistance originally awarded by FTA under the
authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. §
1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems

appropriate.

The Contractor agrees to include the above clause in each subcontract financed in whole or in part with
Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to
identify the subcontractor who will be subject to its provisions.

Access to Records and Reports

49 U.S.C, 5325
18 CFR 18.36 (i)
49 CFR 633.17

1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the
FTA Recipient in accordance with 49 C. F. R. 18.36(i), the Contractor agrees to provide the Purchaser, the
FTA Administrator, the Comptroller General of the United States or any of their authorized representatives
access to any books, documents, papers and records of the Contractor which are directly pertinent to this
contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also
agrees, pursuant to 49 C, F. R. 633.17 to provide the FTA Administrator or his authorized representatives
including any PMO Contractor access to Contractor's records and construction sites pertaining te a major
capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the
programs described at 49 U.S.C. 5307, 5309 or 5311.

2. Where the Purchaser enters into a negotiated contract for other than a small purchase or under the
simplified acquisition threshold and is an institution of higher education, a hospital or other non-profit
organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R.
19.48, Contractor agrees to provide the Purchaser, FTA Administrator, the Comptroller General of the
United States or any of their duly authorized representatives with access to any books, documents, papers
and record of the Contractor which are directly pertinent to this contract for the purposes of making audits,
examinations, excerpts and transcriptions.

3. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with
49 U.S.C. 5325(a) enters into a contract for a capital project or improvement (defined at 49 U.S.C.
5302(a)1)} through other than competitive bidding, the Contractor shall make available records related to the
contract to the Purchaser, the Secretary of Transportation and the Comptroller General or any authorized
officer or employee of any of them for the purposes of conducting an audit and inspection.

4. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to
copy excerpts and transcriptions as reasonably needed.

5. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a
period of not less than three years after the date of termination or expiration of this contract, except in the
event of litigation or settlement of claims arising from the performance of this contract, in which case
Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General,
or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or
exceptions related thereto. Reference 49 CFR 18.39(i)(1 1).

6. FTA does not require the inclusion of these requirements in subcontracts.
Federal Changes
49 CFR Part 18

Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and
directives, including without limitation those listed directly or by reference in the Master Agreement between