DIVISION 4
CONTRACT AGREEMENT
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONTRACTOR
THIS AGREEMENT is dated as of the day of in the year 2021 by and between the
City of Nashua, New Hampshire (hereinafter called OWNER) and __Sunshine Paving Corporation
and its successors, transferees and assignees together hereinafter called CONTRACTOR).
OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as
follows:
ARTICLE 1 - WORK
1.01 CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents.
ARTICLE 2 - THE PROJECT
2.01 The Project for which the Work under the Contract Documents may be the whole or only a part is
generally described as follows:
The scheduled work is located in various areas throughout the City of Nashua and consists primarily of
pavement overlaying, pavement milling with overlay, and pavement reclamation. The City of Nashua
reserves the right, for the Street Paving portion of the contract, to substitute streets of a similar nature
or to add additional streets subject to contract amendment process.
ARTICLE 3 - ENGINEER
3.01 Division of Public Works
Engineering Department
9 Riverside Street
Nashua, NH 03062
is hereinafter called ENGINEER and who is to act as OWNER's representative, assume all duties and
responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in
connection with completion of the Work in accordance with the Contract Documents.
ARTICLE 4 - CONTRACT TIMES
4.01 Time of the Essence
A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for
final payment as stated in the Contract Documents are of the essence of the Contract.
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4.02 Dates for Substantial Completion and Final Payment
The anticipated Commencement date for the contract is on or about March 22, 2021. Project will begin
once a written “Notice to Proceed” is issued.
Substantial Completion shall be by October 15, 2021. Substantial completion is defined in Section 1.01 of
the General Terms and Conditions.
Contract completion shall be by October 31, 2021.
4.03 Liquidated Damages
A. CONTRACTOR and OWNER recognize that time is of the essence of this Agreement and that
OWNER will suffer financial loss if the Work is not completed within the times specified in paragraph 4.02 above,
plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. The parties also
recognize the delays, expense and difficulties involved in proving in a legal or arbitration preceding the actual
loss suffered by OWNER if the Work is not completed on time. Accordingly, instead of requiring any such proof,
OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall
pay OWNER ONE THOUSAND SEVEN HUNDRED dollars ($1,700) for each calendar day that expires after the time
specified in paragraph 4.02 for Substantial Completion until the Work is substantially complete. After
Substantial Completion, if CONTRACTOR shall neglect, refuse or fail to complete the remaining Work within the
time specified in paragraph 4.02 for completion and readiness for final payment or any proper extension thereof
granted by OWNER, CONTRACTOR shall pay OWNER ONE THOUSAND SEVEN HUNDRED dollars ($1,700) for each
calendar day that expires after the time specified in paragraph 4.02 for completion and readiness for final
payment until the Work is completed and ready for final payment.
B. Inthe event that the CONTRACTOR fails to pay OWNER the specified liquidated damages amount
within thirty (30) days of CONTRACTOR's being notified of said damages, OWNER may deduct the amount of
the assessed liquidated damages from the final payment or retention withheld pursuant to Article 14 of the
General Conditions.
ARTICLE 5 - CONTRACT PRICE
5.01 Subject to additions and deductions by Change Order, the OWNER shall pay CONTRACTOR, in
accordance with the Contract Documents, the Contract Sum of:
FOUR MILLION ONE HUNDRED NINETY- ONE THOUSAND SEVEN and 50/100 DOLLARS
($4,191,007.50)
The Contract Sum shall include all items and services necessary for the proper execution and completion of the
Work determined below:
A. for all Unit Price Work, an amount equal to the sum of the established Unit Price for each
separately identified item of Unit Price Work times the estimated quantity of that item, as indicated in the
attached Schedule of Values;
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B. as provided in paragraph 11.03 of the General Conditions estimated quantities are not
guaranteed, and determinations of actual quantities and classification are to be made by ENGINEER as provided
in paragraph 9.08 of the General Conditions. Unit prices have been computed as provided in paragraph 11.03
of the General Conditions.
ARTICLE 6 - PAYMENT PROCEDURES
6.01 Submittal and Processing of Payments
A. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General
Conditions. Applications for Payment will be processed by ENGINEER as provided in the General
Conditions.
B. 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 electronically 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.
6.02 Progress Payments; Retainage
A. Progress Payments. The OWNER will once each month make a progress payment to the
CONTRACTOR on the basis of an estimate of the total amount of work done to the time of the estimate and its
value as prepared by the CONTRACTOR and approved by the ENGINEER. All such payments will be measured
by the schedule of values established in paragraph 2.07.A of the General Conditions (and in the case of Unit
Price Work based on the number of units completed) or, in the event there is no schedule of values, as provided
in the General Requirements.
B. Retainage. The OWNER will retain a portion of the progress payment, each month, in
accordance with the following procedures:
1. 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 will be paid to the
CONTRACTOR. The principal will be the accumulated retainage paid into the account by
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the OWNER. The principal will be held by the bank, available only to the OWNER, until
termination of the contract.
2. Untilthe work is 50% complete, as determined by the ENGINEER, retainage shall be 10%
of the monthly payments claimed. The computed amount of retainage will be deposited
in the escrow account established above.
3. After the work is 50% complete, and provided the CONTRACTOR has satisfied the
ENGINEER 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.
6.03 Final Payment
A. Upon final completion and acceptance of the Work in accordance with paragraph 14.07 of the
General Conditions, OWNER shall hold 2% retainage during the 1 (one) year warranty period and release it only
after the project has been accepted.
ARTICLE 7 - CONTRACTOR'S REPRESENTATIONS
7.01 In order to induce OWNER to enter into this Agreement CONTRACTOR makes the following
representations:
A. CONTRACTOR has examined and carefully studied the Contract Documents and the other related
data identified in the Bidding Documents.
B. CONTRACTOR has visited the Site and become familiar with and is satisfied as to the general,
local, and Site conditions that may affect cost, progress, and performance of the Work.
C. CONTRACTOR is familiar with and is satisfied as to all federal, state, and local Laws and
Regulations that may affect cost, progress, and performance of the Work.
D. CONTRACTOR has carefully studied all (if any): (1) reports of explorations and tests of subsurface
conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface
or subsurface structures at or contiguous to the Site (except Underground Facilities) which have been identified
in the Supplementary Conditions as provided in paragraph 4.02 of the General Conditions and (2) reports and
drawings of a Hazardous Environmental Condition, if any, at the Site which has been identified in the
Supplementary Conditions as provided in paragraph 4.06 of the General Conditions.
CONTRACTOR is entitled to rely upon the general accuracy of the “technical data” as provided in paragraph 4.2
of the General Conditions. CONTRACTOR acknowledges that such reports and drawings are not Contract
Documents and may not be complete for CONTRACTOR's purposes. CONTRACTOR acknowledges that OWNER
and ENGINEER do not assume responsibility for the accuracy or completeness of information and data shown
or indicated in the Contract Documents with respect to Underground Facilities at or contiguous to the site.
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E. CONTRACTOR has obtained and carefully studied (or assumes responsibility for having done so)
all additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning
conditions (surface, subsurface and Underground Facilities) at or contiguous to the Site which may affect cost,
progress, or performance of the Work or which relate to any aspect of the means, methods, techniques,
sequences and procedures of construction, if any, expressly required by the Contract Documents to be
employed by CONTRACTOR, and safety precautions and programs incident thereto.
F. CONTRACTOR does not consider that any further examinations, investigations, explorations,
tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract
Times, and in accordance with the other terms and conditions of the Contract Documents.
G. CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at
the Site that relates to the Work as indicated in the Contract Documents.
H. CONTRACTOR has correlated the information known to CONTRACTOR, information and
observations obtained from visits to the Site, reports and drawings identified in the Contract Documents and
all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents.
l. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, ambiguities or
discrepancies that CONTRACTOR has discovered in the Contract Documents, and the written resolution thereof
by ENGINEER is acceptable to CONTRACTOR.
J. The Contract Documents are generally sufficient to indicate and convey understanding of all
terms and conditions for performance and furnishing of the Work.
ARTICLE 8 - CONTRACT DOCUMENTS
8.1 Contents
A. 1. The Contract Documents are defined in Article 1 of the General Conditions as
amended herein.
2. The Construction Specifications and Contract Documents, dated Janaury 2021.
3. The following documents are incorporated by reference or otherwise indicated:
a. New Hampshire Department of Transportation “Standard Specifications for Road and
Bridge Construction”, latest edition, incorporated by reference or unless otherwise
indicated;
b. “Manual of Uniform Traffic Control Devices”, latest edition, incorporated by
reference;
c. City of Nashua, Standard Specifications for Sewers and Drains, Revised, Approved
and Adopted June 15, 1992, incorporated by reference;
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d. City of Nashua, Standard Specifications for Road Construction, Approved and
Adopted June 11, 1986, incorporated by reference;
e. City of Nashua, Standard Specifications for Sidewalk Construction, Approved and
Adopted August 28, 1995, incorporated by reference; and
f. City of Nashua Ordinance O-03-219 (Amended), Approved November 14, 2003.
ARTICLE 9 - MISCELLANEOUS
9.01 Terms
A. Terms used in this will have the meanings indicated in the General Conditions.
9.02. Assignment of Contract
A. No assignment by a party hereto of any rights under or interests in the Contract will be binding
on another party hereto without the written consent of the party sought to be bound; and, specifically but
without limitation, moneys that may become due and moneys that are due may not be assigned without such
consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically
stated to the contrary in any
written consent to an assignment, no assignment will release or discharge the assignor from any duty or
responsibility under the Contract Documents.
9.03 Successors and Assigns
A. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns, and legal
representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect
to all covenants, agreements, and obligations contained in the Contract Documents.
9.04 Severability
A. Any provision or part of the Contract Documents held to be void or unenforceable under any
Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding
upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be reformed to replace such
stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to
expressing the intention of the stricken provision.
9.05 Choice of Law and Venue
A. This agreement 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
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Address for giving notices to Owner:
Mark Saunders, Senior Staff Engineer
Division of Public Works
Engineering Department
9 Riverside Street
Nashua, NH 03062
Address for giving notices to Contractor:
Robert Bushnell, President
Sunshine Paving Corporation
29 Constitution Drive
Hudson, NH 03051
IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in triplicate. One counterpart
each has been delivered to OWNER, CONTRACTOR and ENGINEER. All portions of the Contract Documents have
been signed, initialed or identified by
CITY OF NASHUA — OWNER
OWNER and CONTRACTOR or identified by ENGINEER on their behalf.
CONTRACTOR:
James W. Donchess, Mayor City of Nashua
Date:
By:
(Authorized Representative)
Print Name:
Date:
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DIVISION 5
GENERAL CONDITIONS
TABLE OF CONTENTS
FOR
GENERAL CONDITIONS
Page
ARTICLE 1 - DEFINITIONS AND TERMINOLOGY.............:ccssesssssescccsesssssssnsssecseeseessesuseeeseessessesuseeesseseeesesenseestessenes 4
L.O1 Defined Terims.......ccccccccccccccccesesseceeeceeeececesseeeeeseveneesesseseeecesesersseseeeseesecesessssesesesesesssteeseseressesstatereeses 4
1.02 TerminOlogy .....ccccccccccccccccsscccescseecececeececseseeeccseseecccseseeccessseeccessaeeecsssaeeccasaaeeccceaeeccneeseesiseecenesseeeenesaes 7
ARTICLE 2 - PRELIMINARY MATTERS ............cccsssssesssscecscessessnesesesesesenssaneeeseeescessesneesscseseessenseassesesenssnaesesesecerense 8
2.01 Delivery Of BONS 2.0... ccc cccccccccecsececceeeeecseeeeecsueeceseaeaeeccesaaeeccessaeeccssaeeccssaececeneetecsutecsessueecenttaeecenes 8
2.02 Copies Of DOCUMENTS 0... cccccecccccccecesseececseseeeeceeececeeeeccesaaeecceseaeescssaeescssaeeecseetecteecetsaeecenttatesenes 8
2.03 Commencement of Contract Times; Notice to Proceed ooo cee cece cee eceeeceeeeeeeceeeeeeeeeeeeeeeeeeeeens 8
2.04 Starting the WOK... ccc cece cccecsccceceeseececeeceecsaeecessseaeeccesaaeescessaeeccssaeeccssaeeecenseececsusecceisaeecentsaeecenes 8
2.05 Before Starting COMStFUCTION ......c ccc ccccccecseccccssecceseeeccceaaeecceeeeeecessateccssaeeecsseececsteesecsueecesieatecenes 8
2.06 PreCONStPUCTION CONFEFENCE......cccccccccccccesessseeecesesenseseeseeeceseseessnsuseseseceeesssseeeeesesesesssesetesenasateneeeeses 9
2.07 Initial Acceptance Of SCHECUIES oo ccccccccscccescseececneeeeecceseeeeccessaeeccssaeeeceseeeecteesecsseecenteatecene 9
ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE ............ccccccccsecceeeeesssscseerseceecssnerenersenenenes 10
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3.02 Reference Standards .......c.ccccccccccsssssccececcesesseeecesesessesseeeeseesesenesseseseseseveessssseeseseessessstveseesensatanerens 10
3.03 Reporting and Resolving Discrepancies... cccccccccececcecssseeceeceeeeeceueececeseeccesaaeeccesatecentiateccateeenes 10
3.04 Amending and Supplementing Contract DOCUMENTHS........ccccccceccecsssecceeceeceeecueeeeecsaeececsaueeceestaeess 11
3.05 REUSE Of DOCUMENTS 00... ec cccccccescccececcessseeeeceseserssseeeesecsesesessesusesesecsesessssesneseesesesssstsseeneessatanerens 11
ARTICLE 4 - AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; REFERENCE POINTS......... 11
4.01 Availability OF LANS oo. ccc cc cccceccccesseceeceseeeeeceeseececsuseeecessaeececssaeeccessaeescssseescsessuecsueeseessteeeeetsas 11
4.02 Subsurface and Physical CONCItIONS .......cc cece cccesccceecsseeeeceseaeecceseaeeccssaeeccessaeeccneaeeecsteetecciteceetaas 12
4.03 Differing Subsurface or Physical CONCItIONS 0... cece eccccccccecssseecceseaeecceseaeeccsssaeeccnsaeeecetseetecstteeeeeas 13
4.04 Underground Facilities... ccc ccccccccccscseccecsseeeeeceeecescsaseeecesaseeccessseeccsssaeeccscaeeecnesaeeecssseceesaseceessas 14
A.05 Reference POINTS... ce cccececsesececececeesesseseeeseseeseseeeeeseesesesssseseeeseseseesestseeeeeseseersesettesensssssetetesesen ses 15
4.06 Hazardous Environmental Condition at Site oo... cecece cceceseseecessseeeseeeeseserssseeeeesenseserensesteetennes 15
ARTICLE 5 - BONDS AND INSURANCE ............ccscssssssceesecesenesseeeeececesessseeuneetesesseseesuoeersaeeneseasseeunsetaeseeunerseeeees 17
5.01 Performance, Payment, and Other BONS ooo... cccccccecsseccceseceececeeeecesssaeeceseeececceeaeeccnieateceites 17
5.02 Licenses SuretieS ANd INSULELS.......cccccccceccccesessseeeeteeeseeserssseeeeeseseessseeeeesecseseeststesseseseneseteesesererstaes 17
5.03 Certificates OF INSUPANCE oc ccccceceessccceesesesseseeeseveceesesssseeeeeseseserseseeesesecseseessestestesesenstereeseserenstaes 17
5.04 CONTRACTOR'S Liability INSUPANCE oo... cc ccccccecccseccccssseeeceseeeeceeseseecescsueecesssaeeecsseaeeceneatecctsssenssaeees 17
5.05 Property INSULANCe..... ce cccccccccceccceeececeeeeseesseeeseeeseeeseeeeeeeeseeeeeceeaeesseseneseaeeaaeesaeesaeeaaenaaeeseesseesseeseeens® 19
5.06 Waiver of RIQNts ........cccccccccccsscccccseseecceseaeecsseeeccsseececseseececseaeeeescaseeecscaeeececsuaeeecesaaessaeececcsseceecnsees 19
ARTICLE 6 - CONTRACTOR’S RESPONSIBILITIES ..........ccccccccscssecccecscuscscseceseseseueuesseceseceeeseseccnenneueeasueusensenesenenes 20
6.01 Supervision and SUPELINCENAENCE 0. ccc cece ccecseseececseseeceeseaeeccecaueeecscsaaeeccesaaeeccessateccntatecseeeenes 20
6.02 Labor; Working HOULS wo... cecccccecceccccseseecceececceseeececseseececseseeeeecaeeeescaaseeccesaaeeccesaseecesssatecsiseseeeseeeeees 20
6.03 Services, Materials, and EQuipMent oo... ccc ccccccccesseccecssseececsseeeceecaeecescaseecceaaeecctsatecentiatecsaeesenes 21
6.04 Progress SCHEGUIC.... ccc cccccccccssseccccsseeceecateccseeeeecseseececssseeceessaeecescaaeeecscsaaeecccsaseecctseeseststecescseesenes 21
6.05 Substitutes and “Or-Equals” ......cccccccccccccccscccccseececeneececssseeceeceseeeecaeeececsaaeeccesaseeccsssateccneeeeeeseeeenes 21
6.06 Concerning Subcontractors, Suppliers, ANG OTH ls occ cccccccccsssecceecesecceecueeeeccssaeececsaaeeceessseess 23
6.07 Patent Fees and Royalties 0... ccc ccccccccceccccssseececneececseseeeeecaeeecscaeseececsaaeeccessaeeccssaeecssteseseseeeeees 24
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6.09 Laws and REGUlAtiONS 0... cece ccccccccesseeceeseeeeceeseececseececcseeeecaeecescaaseeccesaaeeccessaeecctssatecsteeeessaseeees 24
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