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STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONTRACTOR

This agreement is made:

BETWEEN the OWNER: City of Nashua, New Hampshire

229 Main Street
Nashua, NH 03060-2019

And the CONTRACTOR: Methuen Construction Company, Inc.

144 Main Street, PO Box 980
Plaistow, NH 03865

and its successors, transferees and assignees
(together “CONTRACTOR?”)

For the following Project: IFB1092-090619

Digester Gas Tank Diaphragm Upgrade

ARTICLE 1— THE CONTRACT DOCUMENTS

The CONTRACTOR shall complete the work described in the Contract Documents for this
project. The documents consist of:

1.

9.

PAA YD

This Agreement signed by the OWNER and CONTRACTOR, including the General
Terms and Conditions;

Specifications;
Bid Form submitted September 6, 2019;
Notice of Award;

Payment and Performance Bonds;

Insurance Certificate;

Notice to Proceed;

Written change orders for minor changes in the Work issued after execution of this
Agreement; and

Fully Executed OWNER Purchase Order

The Contract represents the entire and integrated agreement between the parties and supersedes
prior negotiations, proposals, representations or agreements, either written or oral. Any other
documents which are not listed in this Article are not part of the Contract.

In the event of a conflict between the terms of the Proposals and the terms of this Agreement, a
written change order and/or fully executed OWNER Purchase Order, the terms of this Agreement,

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the written change order or the fully executed OWNER Purchase Order shall control over the
terms of the Proposals

ARTICLE 2— WORK TO BE PERFORMED

Except as otherwise provided in this contract, CONTRACTOR shall furnish all services,
equipment, and materials and shall perform all operations necessary and required to carry out and
perform in accordance with the terms and conditions of the contract the work described.

DESCRIPTION OF WORK:

This PROJECT consists of replacing the existing diaphragm inside the gas tank along with
modifications to the method of attachment of the diaphragm to the tank wall.

The following is a general summary of the expected work to be performed and sequence to
follow. The CONFRACTOR is not bound by these methods and may use alternate procedures
upon approval by the wastewater engineer. Additional work or steps may be needed that are
not reflected in the following description for the complete installation of the new diaphragm.

Video inside layout of piston and diaphragm such that all components (sections of piston
wall, concrete block ballast layout...) can be reinstalled to exact layout as existing. Remove
existing cables that are used to raise and lower the piston. Remove section of piston walls
(bolted) noting location and order of removed sections. Stack wall sections inside tank at
base. Provide the necessary rigging to remove each section of the piston wall.

Remove upper and lower rings that connect the diaphragm to the tank and base of the
piston. New gasket material and bolts/nets shall be installed upon reconnection of rings and
piton wall sections.

Remove existing diaphragm. Cut hole in top of tank of sufficient size to remove existing
diaphragm from tank. A crane will be needed to facilitate this operation. The existing 24-
inch diameter hatches are likely too small to remove the old and reinstall the new
diaphragm.

Remove upper seal connection bracket and invert such that diaphragm can be bolted to the
bracket from the air side of the tank interior. CONTRACTOR to determine means and
methods to remove existing bracket, reuse or install new bracket with angle iron facing up.
Connect the new diaphragm to upper and lower seal brackets using new bolts, nuts, washers,
bracket bars, and gasket material as necessary to securely attached the top and bottom of
new diaphragm.

Install all 8 sections of piston wall.

Remove old and install new cables that attached to piston and counter weights to assist with
lowering and raising of piston.

Touchup areas where needed with new coatings specified by OWNER.

Operate new gas tank with large air compressor to check operation and determine any
adjustments that may be needed.

Perform leak tests

Purge gas holder with nitrogen gas. Keep system filled with nitrogen gas until startup using
digester gas.

The CONTRACTOR is expected to use high quality construction materials for this work
including all new stainless steel bolts and nuts wherever removed.

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CONTRACTOR shall submit a design drawing of the upper seal of the diaphragm connection
to the piston sidewalls, The CONTRACTOR shall be required to submit a design drawing
acceptable to the Wastewater Engineer of this connection.

ARTICLE 3 — PERIOD OF PERFORMANCE

CONTRACTOR shall begin performance upon receipt of an Executed Contract, a valid Purchase
Order issued from the City of Nashua, and a Notice to Proceed. CONTRACTOR shall
substantially complete all work within 100 calendar days of Notice to Proceed . Final completion
of all work shall be within 120 calendar days of Notice to Proceed . These dates shall only be
altered by mutually approved written agreement to extend the period of performance or by
termination in accordance with the terms of the contract.

ARTICLE 4 ~- CONTRACT SUM

Subject to additions and deductions by Change Order, the OWNER shall pay CONTRACTOR,
in accordance with the Contract Documents, the Contract Sum of:

THREE HUNDRED ELEVEN THOUSAND FIVE HUNDRED SEVEN DOLLARS

($ 311,507.00 )
The Contract Sum shall include ail items and services necessary for the proper execution and
completion of the Work.

ARTICLE 5 ~- INSURANCE AND INDEMNIFICATION

CONTRACTOR shall carry and maintain in effect during the performance of services under this
contract:
>» General liability insurance in the amount of $1,000,000 per occurrence; $2,000,000
aggregate;
> Motor Vehicle Liability: $1,000,000 Combined Single Limit;*Coverage must include all
owned, non-owned and hired vehicles; and
> Workers’ Compensation Coverage in compliance with the State of NH Statutes,
$100,000/$500,000/$ 100,000.

The parties agree that CONTRACTOR shall have the status of and shall perform all work under
this contract as an independent CONTRACTOR, maintaining control over all its consultants, sub
consultants, or subcontractor’s. The only contractual relationship created by this contract is
between the OWNER and CONTRACTOR, and nothing in this contract shall create any
contractual relationship between the OWNER and CONTRACTOR’s consultants, sub
consultants, or subcontractor’s. The parties also agree that CONTRACTOR is not an OWNER
employee and that there shail be no:

1. Withholding of income taxes by the OWNER:

2. Industrial insurance coverage provided by the OWNER:

3. Participation in group insurance plans which may be available to employees of the
OWNER;

4. Participation or contributions by either the independent CONTRACTOR or the OWNER

to the public employee’s retirement system;

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

6. Unemployment compensation coverage provided by the OWNER.

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CONTRACTOR will provide the OWNER with certificates of insurance for coverage as listed
below and endorsements affecting coverage required by the contract within ten calendar days after
the OWNER issues the notice of award. The OWNER 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 and Auto Liability policies must name the OWNER as an
additional insured and reflect on the certificate of insurance. CONTRACTOR is responsible for
filing updated certificates of insurance with the OWNER'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.

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

The imsurance provided herein is primary, and no insurance held or owned by the OWNER
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 OWNER, caused in whole or part by CONTRACTOR
or anyone employed, directed, or supervised by CONTRACTOR.

The insurance provided herein is primary, and no insurance held or owned by the
OWNER, shall be cailed 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 OWNER, 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 hold harmless the OWNER, 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, mterest, attorney’s fees, costs
and expenses of any kind or nature in any manner caused, occasioned, or contributed fo 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 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 harmiess.

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General Terms and Conditions

ARTICLE 6 - GENERAL PROVISIONS

I,

The Contract represents the entire and integrated agreement between the parties and
supersedes prior negotiations, representations or agreements, either written or oral. The
Contract may be amended or modified only by a written modification.

The term “Work” means the construction and services required by the Contract Documents,
and include all other labor, materials, equipment and services provided by the

CONTRACTOR to fulfill the CONTRACTOR’s obligations.

The intent of the Contract Documents is to include all items necessary for the proper
execution and completion of the Work by the CONTRACTOR. The Contract Documents
are complementary, and what is required by one shall be as binding as if required by all.

In the case of a discrepancy, calculated dimensions will govern over scaled dimensions,
Contract Drawings will govern over Standard Specifications, and Technical Specifications
will govern over both Contract Drawings and Standard Specifications. In the case of a
discrepancy between the Agreement and other Contract Documents, the more specific or
stringent obligation or requirement to the benefit of the OWNER shall take precedence.
The CONTRACTOR shall take no advantage of any apparent error or omission in the
Contract Drawings or Technical Specifications, and the Engineer will be permitted to make
such corrections and interpretations as may be deemed necessary to fulfill the intent of the
Contract Documents.

ARTICLE 7 — OWNER

1.

Except for permits and fees, which are the responsibility of the CONTRACTOR under the
Contract Documents, the OWNER shall obtain and pay for other necessary approvals,
easements, assessments and charges.

If the CONTRACTOR fails to correct Work that is not in accordance with the Contract
Documents, the OWNER may direct the CONTRACTOR in writing to stop the Work
until the correction is made.

If the CONTRACTOR defaults or neglects to carry out the Work in accordance with the
Contract Documents and fails within a seven (7) day period after receipt of written notice
from the OWNER to correct such default or neglect with diligence and promptness, the
OWNER may, without prejudice to other remedies, correct such deficiencies. In such
case, a Change Order shall be issued deducting the cost of correction from payments due
the CONTRACTOR.

The OWNER reserves the right to perform construction or operations related to the project
with the OWNER’s own forces, and to award separate contracts in connection with other
portions of the project.

The CONTRACTOR shail coordinate and cooperate with separate CONTRACTORs
employed by the OWNER.

Costs caused by delays or by improperly timed activities or defective construction shall be
borne by the responsible party.

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ARTICLE 8 - CONTRACTOR

1.

10.

LL.

12,

Execution of the Contract by the CONTRACTOR is a representation that the
CONTRACTOR has visited the site, become familiar with local conditions under which
the Work is to be performed and correlated personal observations with requirements of the
Contract Documents.

The CONTRACTOR shall carefully study and compare the Contract Documents with
each other and with information furnished by the OWNER. Before commencing activities,
the CONTRACTOR shall: (1) take field measurements and verify field conditions; (2)
carefully compare this and other information known to the CONTRACTOR with the
Contract Documents; and (3) promptly report errors, inconsistencies or omissions
discovered to the OWNER.

Within ten (10) days of notification of award, and prior to commencement of work, the
CONTRACTOR shall obtain and forward to OWNER a Payment Bond and a
Performance Bond representing 100% of the contract work.

The CONTRACTOR shall supervise and direct the Work, using the CONTRACTOR’s
best skill and attention. The CONTRACTOR shall be solely responsible for and have
control over construction means, methods, techniques, sequences and procedures, and for
coordinating all portions of the Work.

The CONTRACTOR, as soon as practicable after award of the Contract, shall furnish in
writing to the OWNER the names of subcontractors or suppliers for each portion of the
Work. The OWNER will promptly reply to the CONTRACTOR in writing if, after due
investigation, he has reasonable objection to the subcontractors or suppliers listed.

Unless otherwise provided in the Contract Documents, the CONTRACTOR shall provide
and pay for labor, materials, equipment, tools, utilities, transportation, and other facilities
and services necessary for proper execution and completion of the work.

The CONTRACTOR shall deliver, handle, store and install materials in accordance with
manufacturers’ instructions.

The CONTRACTOR warrants to the OWNER that (1) materials and equipment furnished
under the contract will be new and of good quality unless otherwise required or permitted
by the Contract Documents; (2) the Work will be free from defects not inherent in the
quality required or permitted; and (3) the Work will conform to the requirements of the
Contract Documents.

The CONTRACTOR shall pay sales, consumer, use and similar taxes that are legally
required when the Contract is executed.

The CONTRACTOR shall obtain and pay for the building permit and other permits and
governmental fees, licenses and inspections necessary for proper execution and completion
of the Work.

The CONTRACTOR shall comply with and give notices required by agencies having
jurisdiction over the Work. If the CONTRACTOR performs Work knowing it to be
contrary to laws, statutes, ordinances building codes, and rules and regulations without
notice to the OWNER, the CONTRACTOR shall assume full responsibility for such
Work and shall bear the attributable costs. The CONTRACTOR shall promptly notify the
OWNER in writing of any known inconsistencies in the Contract Documents with such
governmental laws, rules and regulations.

The CONTRACTOR shall promptly review, approve in writing and submit Shop
Drawings, Product Data, Samples and similar submittals required by the Contract
Documents. Shop Drawings, Product Data, Samples and similar submittals are not Contract
Documents.

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13.

14,

15.

16,

The CONTRACTOR shall confine operations at the site to areas permitted by law,
ordinances, permits, the Contract Documents and the OWNER.

The CONTRACTOR shall be responsible for cutting, fitting or patching required
completing the Work or to make its parts fit together properly.

The CONTRACTOR shall keep the premises and surrounding area free from
accumulation of debris and trash related to the Work.

Upon completion of WORK, CONTRACTOR warrants and guarantees to OWNER, for
one (1 ear, and that all WORK was completed in accordance with the Contract
Documents and will not be defective. CONTRACTOR’s warranty and guarantee
hereunder excludes defects or damage caused by:

> Abuse, modification, or improper maintenance or operation by persons other than
CONTRACTOR, subcontractors, suppliers, or any other individual or entity for
whom CONTRACTOR is responsible; or

> Normal wear and tear under normal usage.

ARTICLE 9 — CHANGES IN THE WORK

1.

After execution of the Contract, changes in the Work may be accomplished by Change
Order or by order for a minor change in the Work. The OWNER, without invalidating the
Contract, may order changes in the Work within the general scope of the Contract
consisting of additions, deletions or other revisions, the Contract Sum and Contract Time
being adjusted accordingly.

A Change Order shall be a written order to the CONTRACTOR signed by the OWNER
to change the Work, Contract Sum or Contract Time.

Change Order requests must include material and equipment cost plus labor with a profit
margin of no more than 10%. Change Orders may require approval by the Board of
Public Works and the OWNER’s Finance Committee vote prior to proceeding.

The OWNER will have authority to order minor changes in the Work not involving
changes in the Contract Sum or the Contract Time and not inconsistent with the intent of
the Contract Documents. Such changes shall be written orders and shall be binding on the
OWNER and CONTRACTOR. The CONTRACTOR shall carry out such written orders
promptly.

If concealed or unknown physical conditions are encountered at the site that differ
materially from those indicated in the Contract Documents or from those conditions
ordinarily found to exist, the Contract Sum and Contract Time shall be subject to equitable
adjustment following authorization of the OWNER to the charges.

ARTICLE 10 — TIME

1.
2.

Time limits stated in the Contract Documents are of the essence to the Contract.

If the CONTRACTOR is delayed at any time in progress of the Work by changes ordered
in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties
or other causes beyond the CONTRACTOR’s control, the Contract Time shall be
extended by Change Order for such reasonable time as may be determined.

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ARTICLE 11 —- PAYMENTS AND COMPLETION

1.

The Contract Sum stated in the Agreement, including authorized adjustments, is the total
amount payable by the OWNER to the CONTRACTOR for performance of the Work
under the Contract Documents.

Once every thirty (30) days, the CONTRACTOR shall submit an itemized Application
for Payment for operations completed in accordance with the values stated in the
Agreement. Such application shall be supported by such data substantiating the
CONTRACTOR’s right to payment as the OWNER may reasonably require.

Application for Payment performed under this agreement shall be submitted as follows:

>» Electronically via email to VendorAPinvoices(@NashuaNH.gov
OR
> Paper Copies via US Mail to:

City of Nashua, City Hall
Accounts Payable
229 Main Street
Nashua, NH 03060

Please do not submit invoices both electrenically and paper copy.

In addition, and to facilitate the proper and timely payment of applications, the
OWNER requires that all submitted invoices contain a valid PURCHASE ORDER
NUMBER.

The CONTRACTOR warrants that title to all Work covered by an Application for
Payment will pass to the OWNER no later than the time of payment. The
CONTRACTOR further warrants that upon submittal of an Application for Payment, all
Work for which Certificates for Payment have been previously issued and payments
received from the OWNER shall, to the best of the CONTRACTOR’s knowledge,
information and belief, be free and clear of liens, claims, security interests or other
encumbrances adverse to the OWNER’s interests.

OWNER shall make payments, for work satisfactorily completed and accurately invoiced,
on the basis of CONTRACTORs Application for Payment, within 30 days of approval by
the OWNER.

The CONTRACTOR shall promptly pay each subcontractor and supplier out of the
amount paid to the CONTRACTOR on account of such entities’ portion of the Work.

The OWNER shall have no responsibility for the payment of money to a subcontractor or
supplier.

An Application for Payment, a progress payment, or partial or entire use or occupancy of
the project by the OWNER shail not constitute acceptance of Work not in accordance with
the requirements of the Contract Documents.

Substantial completion is the stage in the progress of the Work when the Work or
designated portion thereof is sufficiently complete in accordance with the Contract
Documents so the OWNER can occupy or utilize the Work for its intended use.

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10.

11.

12.

When the Work or designated portion thereof is substantially complete, the
CONTRACTOR and OWNER shall establish responsibilities for completion and shall fix
the time within which the CONTRACTOR shall finish all items on the list accompanying
the Certificate. Warranties required by the Contract Documents shall commence on the
date of Substantial Completion of the Work or designated portion thereof unless otherwise
provided in the Certificate of Substantial Completion.

Upon receipt of a final Application for Payment, the OWNER will inspect the Work.

When he finds the Work acceptable and the Contract fully performed, the OWNER will
promptly issue a final Certificate for Payment.

Acceptance of final payment by the CONTRACTOR, a subcontractor or supplier shall
constitute a waiver of claims by that payee except those previously made in writing and
identified by that payee as unsettled at the time of final Application for Payment.

ARTICLE 12— RETAINAGE

1. The OWNER will retain a portion of the progress payment, each month, in accordance with
the following procedures:

2.

a. The OWNER will establish an escrow account in the bank of the OWNER’s
choosing. The account will be established such that interest on the principal wiil be
paid to the CONTRACTOR. The principal will be the accumulated retainage paid
into the account by the OWNER. The principal will be held by the bank, available
only to the OWNER, until termination of the contract.

b. Until the work is 50% complete, as determined by the OWNER, retainage shall be
10% of the monthly payments claimed. The computed amount of retainage will be
deposited in the escrow account established above.

c. After the work is 50% complete, and provided the CONTRACTOR has satisfied
the OWNER in quality and timeliness of the work, and provided further that there
is no specific cause for withholding additional retainage no further amount will be
withheld. The escrow account will remain at the same balance throughout the
remainder of the project.

Upon final completion and acceptance of the Work, OWNER shall hoid 2% retainage

during the 1 (one) year warranty period and release it only after the project has been

accepted.

ARTICLE 13 — PROTECTION OF PERSONS AND PROPERTY

i,

The CONTRACTOR shall be responsible for initiating, maintaining and supervising all
safety precautions and programs, including all those required by law in connection with
performance of the Contract. The CONTRACTOR shall promptly remedy damage and
loss to property caused in whole or in part by the CONTRACTOR, or by anyone for
whose acts the CONTRACTOR may be liabie.

ARTICLE 14 — CORRECTION OF WORK

1.

The CONTRACTOR shall promptly correct Work rejected by the OWNER as failing to
conform to the requirements of the Contract Documents. The CONTRACTOR shall bear
the cost of correcting such rejected work

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2. In addition to the CONTRACTOR’s other obligations including warranties under the
Contract, the CONTRACTOR shall, for a period of one year after Substantial Completion,
correct work not conforming to the requirements of the Contract Documents.

3. If the CONTRACTOR fails to correct nonconforming Work within a reasonable time, the
OWNER may correct it and the CONTRACTOR shall reimburse the OWNER for the
cost of the correction.

ARTICLE 15 — PROHIBITED INTERESTS

CONTRACTOR shall not allow any officer or employee of the OWNER to have any indirect or
direct interest in this contract or the proceeds of this contract. CONTRACTOR warrants that no
officer or employee of the OWNER has any direct or indirect interest, whether contractual, non-
contractual, financial or otherwise, in this contract or in the business of the CONTRACTOR.
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. CONTRACTOR further warrants that no
person having such an interest shall be employed in the performance of this contract. If any such
interest comes to the attention of CONTRACTOR at any time, a full and complete disclosure of
the interest shall be immediately made in writing to the OWNER. If OWNER determines that a
conflict exists and was not disclosed to the OWNER, it may terminate the contract at will or for
cause,

ARTICLE 16 -— TERMINATION OF THE CONTRACT
TERMINATION, ABANDONMENT, OR SUSPENSION AT WILL

The OWNER, in its sole discretion, shall have the right to terminate, abandon, or suspend ali or
part of the project and contract at will. If the OWNER chooses to terminate, abandon, or suspend
all or part of the project, it shall provide CONTRACTOR 10 day’s written notice of its imtent to
do so. If all or part of the project is suspended for more than 90 days, the suspension shall be
treated as a termination at will of all or that part of the project and contract.

Upon receipt of notice of termination, abandonment, or suspension at will, CONTRACTOR shall:

a. Immediately discontinue work on the date and to the extent specified in the notice.

b. Provide the OWNER with a list of all unperformed services.

C. Place no further orders or sub-contracts for materials, services, or facilities, other
than as may be necessary or required for completion of such portion of work under
the contract that is not terminated.

d. Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the OWNER of all orders or sub contracts to the extent they relate to
the performance of work terminated, abandoned, or suspended under the notice,
assign to the OWNER any orders or sub contracts specified in the notice, and
revoke agreements specified in the notice.

€. Not resume work after the effective date of a notice of suspension until receipt of a
written notice from the OWNER to resume performance.

In the event of a termination, abandonment, or suspension at will, CONTRACTOR shall receive

all amounts due and not previously paid to CONTRACTOR for work satisfactorily completed in
accordance with the contract prior to the date of the notice and compensation for work thereafter

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