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those contained in media of any sort (e.g., electronic, magnetic, digital) prepared by or supplied
to Professional Engineer in the performance of its obligations under this contract shall be the
exclusive property of the City and all such materials shall be remitted and delivered, at
Professional Engineer's expense, by Professional Engineer to the City upon completion,
termination, or cancellation of this contract. Alternatively, if the City provides its written
approval to Professional Engineer, any books, reports, studies, photographs, negatives or other
documents, data, drawings or other materials including but not limited to those contained in
media of any sort (e.g., electronic, magnetic, digital) prepared by or supplied to Professional
Engineer in the performance of its obligations under this contract must be retained by
Professional Engineer for a minimum of four years after final payment is made and all other
pending matters are closed. If, at any time during the retention period, the City, in writing,
requests any or all of the materials, then Professional Engineer shall promptly remit and deliver
the materials, at Professional Engineer's expense, to the City. Professional Engineer shall not use,
willingly allow or cause to have such materials used for any purpose other than the performance
of Professional Engineer's obligations under this contract without the prior written consent of the

City.

22. PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS. Professional Engineer expressly
agrees that all documents ever submitted, filed, or deposited with the City by Professional
Engineer (including those remitted to the City by Professional Engineer pursuant to paragraph
21), unless designated as confidential by a specific statue of the State of New Hampshire, shall
be treated as public records and shall be available for inspection and copying by any person, or
any governmental entity.

No books, reports, studies, photographs, negatives or other documents, data, drawings or other
materials including but not limited to those contained in media of any sort (e.g., electronic,
magnetic, digital) prepared by or supplied to Professional Engineer in the performance of its
obligations under this contract shall be the subject of any application for a copyright or patent by
or on behalf of Professional Engineer. The City shall have the right to reproduce any such
materials.

Professional Engineer expressly and indefinitely waives all ot its nights to bring, including but
not limited to, by way of complaint, interpleader, intervention, or any third party practice, any
claims, demands, suits, actions, judgments, or executions, for damages or any other relief, in any
administrative or judicial forum, against the City or any of its officers or employees, in either
their official or individual capacity, for violations of or infringement of the copyright or patent
laws of the United States or of any other nation. Professional Engineer agrees to indemnify, to
defend, and to hold harmless the City, its representatives, and employees from any claim or
action seeking to impose liability, costs, and attorney fees incurred as a result of or in connection
with any claim, whether rightful or otherwise, that any material prepared by or supplied to
Professional Engineer infringes any copyright or that any equipment, material, or process (or any
part thereof) specified by Professional Engineer infringes any patent.

Professional Engineer shall have the right, in order to avoid such claims or actions, to substitute
at its expense non-infringing materials, concepts, products, or processes, or to modify such
infringing materials, concepts, products, or processes so they become non-infringing, or to obtain
the necessary licenses to use the infringing materials, concepts, products, or processes, provided
that such substituted or modified materials, concepts, products, or processes shall meet all the
requirements and be subject to all the terms and conditions of this contract.

GC 11 of 13

23. FINAL ACCEPTANCE. Upon completion of all work under the contract, Professional
Engineer shall notify the City in writing of the date of the completion of the work and request
confirmation of the completion from the City. Upon receipt of the notice, the City shall confirm
to Professional Engineer in writing that the whole of the work was completed on the date
indicated in the notice or provide Professional Engineer with a written list of work not
completed. With respect to work listed by the City as incomplete, Professional Engineer shall
promptly complete the work and the final acceptance procedure shall be repeated. The date of
final acceptance of a project by the City shall be the date upon which the Board of Public Works
or other designated official accepts and approves the notice of completion.

24. TAXES. Professional Engineer 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. Professional Engineer hereby indemnifies and holds harmless the City
from any liability on account of any and all such taxes, levies, duties, assessments, and
deductions.

25. .NON-WAIVER OF TERMS AND CONDITIONS. None of the terms and conditions of this
contract shall be considered waived by the City. 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 in a written waiver.

26. | 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.

27. PROHIBITED INTERESTS. Professional Engineer shall not allow any officer or employee
of the City to have any indirect or direct interest in this contract or the proceeds of this contract.
Professional Engineer warrants that no officer or employee of the City has any direct or indirect
interest, whether contractual, noncontractual, financial or otherwise, in this contract or in the
business of Professional Engineer. If any such interest comes to the attention of Professional
Engineer at any time, a full and complete disclosure of the interest shall be immediately made in
writing to the City. Professional Engineer 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. Professional
Engineer further warrants that no person having such an interest shall be employed in the
performance of this contract. If City determines that a conflict exists and was not disclosed to
the City, it may terminate the contract at will or for cause in accordance with paragraph 8.

In the event Professional Engineer (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 may terminate the contract at will or for cause in accordance with paragraph 8. Upon
termination, Professional Engineer shall refund to the City any profits realized under this
contract, and Professional Engineer shall be liable to the City for any costs incurred by the City
in completing the work described in this contract. At the discretion of the City, these sanctions
shall also be applicable to any such conviction obtained after the expiration or completion of the
contract.

GC 12 of 13

Professional Engineer warrants that no gratuities (including, but not limited to, entertainment or
gifts) were offered or given by Professional Engineer to any officer or employee of the City 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 determines that such gratuities were or offered or given, it may terminate the contract at will
or for cause in accordance with paragraph 8.

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 under this contract or at law.

28. THIRD PARTY INTERESTS AND LIABILITIES. The City and Professional Engineer,
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
and Professional Engineer.

29. | 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.

30. 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.

31. MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT. This contract constitutes the
entire contract between the City and Professional Engineer. 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.

32. 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 13 of 13

=) 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.

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PAGE 3

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