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CONTRACT FOR INDEPENDENT CONTRACTOR

INTERCEPTOR - FLOW MONITORING

A CONTRACT BETWEEN

THE CITY GF NASHUA, 229 MAIN STREET, CrTy HALL, NASHUA, NH 03060
AND

FLOW ASSESSMENT Services, LLC
and its successors, transferees and assignees (together “Independent Contractor”)

NAME AND TITLE OF INDEPENDENT CONTRACTOR

72 PRISCILLA LANE, AUBURN NH 03032
ADDRESS OF INDEPENDENT CONTRACTOR

WHEREAS, the City of Nashua, a political subdivision of the State of New Hampshire, from time to
time requires the services of an Independent Contractor ; and

WHEREAS, it is deemed that the services of an Independent Contractor herein specified are both
necessary and desirable and in the best interests of the City of Nashua; and

WHEREAS, Independent Contractor represents they are duly qualified, equipped, staffed, ready,
willing and able to perform and render the services hereinafter described;

Now, THEREFORE, in consideration of the agreements herein made, the parties mutually agree as
follows:

1. DOCUMENTS INCORPORATED. The following exhibits are by this reference incorporated herein and are
made part of this contract:

Exhibit A--General Conditions for Contracts; and
Exhibit B-- Flow Assessment Services Proposal dated July 12, 2021;

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 Proposal and the terms of this Agreement, a written
change order and/or fully executed City of Nashua Purchase Order, the terms of this Agreement, the
written change order or the fully executed City of Nashua Purchase Order shall control over the terms
of the Proposal.

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2. WORK TO BE PERFORMED Except as otherwise provided in this contract, Independent 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:

The Independent Contractor to install four (4) flow meters, perform the requested services, and
invoice Owner in accordance with Exhibit B attached.

3. PERIOD OF PERFORMANCE The term of the contract will be for two (2) years, with first year commencing
on or about September 1, 2021 and terminating on June 30, 2023. Each year is subject to annual budget
appropriations and at the City of Nashua's sole discretion. A separate/amended purchase order shall
be issued for each year of the contract.

Independent Contractor shall perform and complete all work within the time periods set forth and may
only be altered by the parties by a written agreement to extend the period of performance or by
termination in accordance with the terms of the contract. Independent Contractor shall begin
performance upon receipt of an Executed Contract and a valid Purchase Order issued from the City of
Nashua.

4, COMPENSATION. Independent Contractor agrees to perform the work for a total cost, and in
accordance with Exhibit B, not to exceed

SIXTY-ONE THOUSAND TWO HUNDRED and 00/100 DOLLARS ($61,200.00)
for the term of the contract

The Contract Sum shall include all items and services necessary for the proper execution and
completion of the Work.

Unless Independent Contractor has received a written exemption from the City of Nashua, Independent
Contractor shall submit an itemized Application for Payment for operations completed in accordance
with the values stated in the Agreement. Such applications shall be supported by such data
substantiating the Independent Contractor's right to payment as the City of Nashua may reasonably
require. Independent Contractor shall submit requests for payment for services performed under this
agreement directly to:

> 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

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Please_do not submit invoices both electronically and paper copy.

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

The City of Nashua will pay for work satisfactorily completed and accurately invoiced by Independent
Contractor within thirty (30} days from the time of approval by the City of Nashua.

5. EFFECTIVE DATE OF CONTRACT. This contract shall not become effective until the date of execution by the
City of Nashua.

6. Notices. Ail notices, requests, or approvals required or permitted to be given under this contract
shall be in writing, shall be sent by nand delivery, overnight carrier, or by United States mail, postage
prepaid, and registered or certified, and shall be addressed to:

David Boucher, Superintendent
City of Nashua -Division of Public Works
Wastewater Treatment Facility
2 Sawmill Road
Nashua, NH 03060

Any notice required or permitted under this contract, if sent by United States mail, shall be deemed to
be given to and received by the addressee thereof on the third business day after being deposited in
the mail. The City of Nashua or Independent Contractor may change the address or representative by
giving written notice to the other party.

IN WITNESS WHEREOF, the parties hereto have caused this contract to be signed and intend to be legally
bound thereby.

Paul . Casey,

City of Nashua, NH (signature) Flow Assessment Service$, LLC (signature)
James W Donchess, Mayor Paul P. Casey, Managing Partner
(Printed Name and Title) {Printed Name and Title)
07/22/2021
Date Date

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EXHIBIT A
TABLE OF CONTENTS
GENERAL CONDITIONS
DEFINITIONS
INDEPENDENT CONTRACTOR STATUS
STANDARD OF CARE
City OF NASHUA REPRESENTATIVE
CHANGES TO SCOPE OF WORK

City oF NASHUA COOPERATION

DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR
DISCREPANCIES

TERMINATION OF CONTRACT

DISPUTE RESOLUTION

NO DAMAGES FOR DELAY

INSURANCE

INDEMNIFICATION

FISCAL CONTINGENCY

COMPENSATION

COMPLIANCE WITH APPLICABLE LAWS
NONDISCRIMINATION

ENDORSEMENT

ASSIGNMENTS, TRANSFER, DELEGATION, OR SUBCONTRACTING
CiTy INSPECTION OF CONTRACT MATERIALS
DISPOSITION OF CONTRACT MATERIALS

PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS
FINAL ACCEPTANCE

TAXES

NON-WAIVER OF TERMS AND CONDITIONS

RIGHTS AND REMEDIES

PROHIBITED INTERESTS

THIRD PARTY INTERESTS AND LIABILITIES

SURVIVAL OF RIGHTS AND OBLIGATIONS
SEVERABILITY

MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT

CHOICE OF LAW AND VENUE
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General Terms and Conditions

1. DEFINITIONS Unless otherwise required by the context, "Independent Contractor”, and its
successors, transferees and assignees (together “Independent Contractor”) includes any
of the Independent Contractor's consultants, sub consultants, contractors, and
subcontractors

2. INDEPENDENT CONTRACTOR STATUS The parties agree that Independent 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, contractors, or
subcontractors. The only contractual relationship created by this contract is between the
City of Nashua and Independent Contractor, and nothing in this contract shall create any
contractual relationship between the City of Nashua and Independent Contractor's
consultants, sub consultants, contractors, or subcontractors. The parties also agree that
Independent Contractor is not a City of Nashua employee and that there shall be no:

(1) Withholding of income taxes by the City of Nashua:

(2) Industrial insurance coverage provided by the City of Nashua;

(3) Participation in group insurance plans which may be available to employees
of the City of Nashua;

(4) Participation or contributions by either the Independent Contractor or the
City of Nashua to the public employee’s retirement system;

{5} Accumulation of vacation leave or sick leave provided by the City of Nashua;

(6) Unemployment compensation coverage provided by the City of Nashua.

3. STANDARD OF CARE Independent Contractor shall be responsible for the professional quality,
technical accuracy, timely completion, and coordination of all work performed under this
contract. Independent Contractor warrants that all work shall be performed with the
degree of professional skill, care, diligence, and sound practices and judgment that are
normally exercised by recognized professional firms with respect to services of a similar
nature. It shall be the duty of Independent Contractor to assure at its own expense that
all work is technically sound and in conformance with all applicable federal, state, and local
laws, statutes, regulations, ordinances, orders, or other requirements. In addition to all
other rights which the City of Nashua may have, Independent Contractor shall, at its own
expense and without additional compensation, re-perform work to correct or revise any
deficiencies, omissions, or errors in the work or the product of the work or which result
from Independent Contractor's failure to perform in accordance with this standard of care.
Any approval by the City of Nashua of any products or services furnished or used by
Independent Contractor shall not in any way relieve Independent Contractor of the
responsibility for professional and technical accuracy and adequacy of its work. City of
Nashua review, approval, or acceptance of, or payment for any of Independent
Contractor's work under this contract shall not operate as a waiver of any of the City of
Nashua's rights or causes of action under this contract, and Independent Contractor shall
be and remain liable in accordance with the terms of the contract and applicable law.

independent Contractor shali furnish competent and skilled personnel to perform the work
under this contract. The City of Nashua reserves the right to approve key personnel

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assigned by Independent Contractor to perform work under this contract. Approved key
personnel shall not be taken off of the project by Independent Contractor without the prior
written approval of the City of Nashua, except in the event of termination of employment.
Independent Contractor shall, if requested to do so by the City of Nashua, remove from
the job any personnel whom the City of Nashua determines to be incompetent, dishonest,
or uncooperative.

City OF NASHUA REPRESENTATIVE The City of Nashua may designate a City of Nashua
representative for this contract. If designated, all notices, project materials, requests by
Independent Contractor, and any other communication about the contract shall be
addressed or be delivered to the City of Nashua Representative.

CHANGES TO Scope OF WorK The City of Nashua may, at any time, by written order, make
changes to the general scope, character, or cost of this contract and in the services or work
to be performed, either increasing or decreasing the scope, character, or cost of
Independent Contractor's performance under the contract. Independent Contractor shall
provide to the City of Nashua within 10 calendar days, a written proposal for accomplishing
the change. The proposal for a change shall provide enough detail, including personnel
hours for each sub-task and cost breakdowns of tasks, for the City of Nashua to be able to
adequately analyze the proposal. The City of Nashua will then determine in writing if
Independent Contractor should proceed with any or all of the proposed change. If the
change causes an increase or a decrease in Independent Contractor's cost or time required
for performance of the contract as a whole, an equitable adjustment shall be made and
the contract accordingly modified in writing. Any claim of Independent Contractor for
adjustment under this clause shall be asserted in writing within 30 days of the date the City
of Nashua notified Independent Contractor of the change.

When Independent Contractor seeks changes, Independent Contractor shall, before any
work commences, estimate their effect on the cost of the contract and on its schedule and
notify the City of Nashua in writing of the estimate. The proposal for a change shall provide
enough detail, including personnel hours for each sub-task and cost breakdowns of tasks,
for the City of Nashua to be able to adequately analyze the proposal. The City of Nashua
will then determine in writing if Independent Contractor should proceed with any or all of
the proposed change.

Except as provided in this paragraph, Independent Contractor shall implement no change
unless the City of Nashua in writing approves the change. Unless otherwise agreed to in
writing, the provisions of this contract shall apply to all changes. The City of Nashua may
provide verbal approval of a change when the City of Nashua, in its sole discretion,
determines that time is critical or public health and safety are of concern. Any verbal
approval shall be confirmed in writing as soon as practicable. Any change undertaken
without prior City of Nashua approval shall not be compensated and is, at the City of
Nashua's election, sufficient reason for contract termination.

CITY OF NASHUA COOPERATION The City of Nashua agrees that its personnel will cooperate
with Independent Contractor in the performance of its work under this contract and that
such personnel will be available to Independent Contractor for consultation at reasonable
times and after being given sufficient advance notice that will prevent conflict with their
other responsibilities. The City of Nashua also agrees to provide Independent Contractor

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with access to City of Nashua records in a reasonable time and manner and to schedule
items that require action by the Board of Public Works and Finance Committee in a timely
manner. The City of Nashua and Independent Contractor also agree to attend all meetings
called by the City of Nashua or Independent Contractor to discuss the work under the
Contract, and that Independent Contractor may elect to conduct and record such meetings
and shall later distribute prepared minutes of the meeting to the City of Nashua.

DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES Independent
Contractor warrants that it has examined all contract documents, has brought all conflicts,
errors, discrepancies, and ambiguities to the attention of the City of Nashua in writing, and
has concluded that the City of Nashua's resolution of each matter is satisfactory to
Independent Contractor. All future questions Independent Contractor may have
concerning interpretation or clarification of this contract shall be submitted in writing to
the City of Nashua within 10 calendar days of their arising. The writing shall state clearly
and in full detail the basis for Independent Contractor's question or position. The City of
Nashua representative shall render a decision within 15 calendar days. The City of Nashua’s
decision on the matter is final. Any work affected by a conflict, error, omission, or
discrepancy which has been performed by Independent Contractor prior to having
received the City of Nashua's resolution shall be at Independent Contractor's risk and
expense. At all times, Independent Contractor shall carry on the work under this contract
and maintain and complete work in accordance with the requirements of the contract or
determination of the City of Nashua. Independent Contractor is responsible for requesting
clarification or interpretation and is solely liable for any cost or expense arising from its
failure to do so.

TERMINATION OF CONTRACT

A. TERMINATION, ABANDONMENT, OR SUSPENSION AT WILL The City of Nashua, in its sole discretion,
shall have the right to terminate, abandon, or suspend all or part of the project and
contract at will. if the City of Nashua chooses to terminate, abandon, or suspend all or part
of the project, it shall provide Independent Contractor 10 days’ written notice of its intent
to do so.

lf 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 part of the project and contract.

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

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

2. Place no further orders or subcontracts 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.

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

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4. Not resume work after the effective date of a notice of suspension until receipt
ofa written notice from the City of Nashua to resume performance.

In the event of a termination, abandonment, or suspension at will, Independent Contractor
shall receive all amounts due and not previously paid to Independent Contractor for work
satisfactorily completed in accordance with the contract prior to the date of the notice and
compensation for work thereafter completed as specified in the notice. No amount shall
be allowed or paid for anticipated profit on unperformed services or other unperformed
work,

B, TERMINATION FOR CAUSE This agreement may be terminated by the City of Nashua on 10
calendar day’s written notice to Independent Contractor in the event of a failure by
Independent Contractor to adhere to any or all the terms and conditions of the contract
or for failure to satisfactorily, in the sole opinion of the City of Nashua, to complete or make
sufficient progress on the work in a timely and professional manner. Independent
Contractor shall be given an opportunity for consultation with the City of Nashua prior to
the effective date of the termination. Independent Contractor may terminate the contract
on 10 calendar days written notice if, through no fault of Independent Contractor, the City
of Nashua fails to pay Independent Contractor for 45 days after the date of approval by
the City of Nashua of any Application for Payment.

Upon receipt of notice of termination for cause, Independent Contractor shall:

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

2. Provide the City of Nashua with a list of all unperformed services.

3. 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.

4. Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the City of Nashua 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 City of Nashua any orders or sub contracts specified in
the notice, and revoke agreements specified in the notice.

5. Not resume work after the effective date of a notice of termination unless and
until receipt of a written notice from the City of Nashua to resume performance.

In the event of a termination for cause, Independent Contractor shall receive all amounts
due and not previously paid to Independent Contractor for work satisfactorily completed
in accordance with the contract prior to the date of the notice, less all previous payments.
No amount shall be allowed or paid for anticipated profit on unperformed services or other
unperformed work. Any such payment may be adjusted to the extent of any additional
costs occasioned to the City of Nashua by reasons of Independent Contractor's failure.
Independent Contractor shall not be relieved of liability to the City of Nashua for damages
sustained from the failure, and the City of Nashua may withhold any payment to the
Independent Contractor until such time as the exact amount of damages due to the City
of Nashua is determined. All claims for payment by the Independent Contractor must be
submitted to the City of Nashua within 30 days of the effective date of the notice of
termination.

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lf after termination for the failure of Independent Contractor to adhere to any of the terms
and conditions of the contract or for failure to satisfactorily, in the sole opinion of the City
of Nashua, to complete or make sufficient progress on the work in a timely and
professional manner, it is determined that Independent Contractor had not so failed, the
termination shall be deemed to have been a termination at will. In that event, the City of
Nashua shall, if necessary, make an adjustment in the compensation paid to Independent
Contractor such that Independent Contractor receives total compensation in the same
amount as it would have received in the event of a termination-at-will.

C. GENERAL PROVISIONS FOR TERMINATION Upon termination of the contract, the City of Nashua
may take over the work and prosecute it to completion by agreement with another party
or otherwise. In the event Independent Contractor shall cease conducting business, the
City of Nashua shall have the right to solicit applications for employment from any
employee of the Independent Contractor assigned to the performance of the contract.
Neither party shall be considered in default of the performance of its obligations
hereunder to the extent that performance of such obligations is prevented or delayed by
any cause, existing or future, which is beyond the reasonable control of such party. Delays
arising from the actions or inactions of one or more of Independent Contractor's principals,
officers, employees, agents, subcontractors, consultants, vendors, or suppliers are
expressly recognized to be within Independent Contractor's control.

DISPUTE RESOLUTION The parties shall attempt to resolve any dispute related to this contract
as follows. Either party shall provide to the other party, in writing and with full
documentation to verify and substantiate its decision, its stated position concerning the
dispute. No dispute shall be considered submitted and no dispute shall be valid under this
provision unless and until the submitting party has delivered the written statement of its
position and full documentation to the other party. The parties shall then attempt to
resolve the dispute through good faith efforts and negotiation between the City of Nashua
Representative and an Independent Contractor Representative. At all times, Independent
Contractor shall carry on the work under this contract and maintain and complete work in
accordance with the requirements of the contract or determination or direction of the City
of Nashua. If the parties are unable to resolve their dispute as described above within 30
days, if requested in writing by either the City of Nashua or the Independent Contractor
within 14 days after the 30 days described above,, the parties shall attempt to resolve the
dispute by entering into structured non-binding negotiations with the assistance of a
mediator on a without prejudice basis. The mediator shall be appointed by agreement of
the parties, which agreement shall not be unreasonably withheld. lf the parties cannot
agree to a mediator within 30 days or the dispute cannot be settled within a period of
thirty (30) days with the mediator, the parties’ reserve the right to pursue any available
legal and/or equitable remedies for any breaches of this contract except as that right may
be limited by the terms of this contract.

No DAMAGES FOR DELAY Apart from a written extension of time, no payment, compensation,
or adjustment of any kind shall be made to Independent Contractor for damages because
of hindrances or delays in the progress of the work from any cause, and Independent
Contractor agrees to accept in full satisfaction of such hindrances and delays any extension
of time that the City of Nashua may provide.

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11. INSURANCE Independent 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;

> $1,000,000 Combined Single Limit Automobile Liability; *Coverage must include
all owned, non-owned and hired vehicles ; and

> Workers’ Compensation Coverage in compliance with the State of New
Hampshire statutes, $100,000/5500,000/5100,000.

independent 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 Independent Contractor are
intended to and shall not in any manner limit or qualify the liabilities and obligations
assumed by Independent Contractor under this contract. The City of Nashua shall not
maintain any insurance on behalf of Independent Contractor. Subcontractors are subject
te the same insurance requirements as Independent Contractor and it shall be the
Independent Contractor’s responsibility to ensure compliance of this requirement.

Independent Contractor will provide the City of Nashua with certificates of insurance for
coverage as listed below and endorsements affecting coverage required by the contract.
The City of Nashua 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. Independent
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, Independent 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 Independent Contractor of its
responsibilities or limit the amount of its liability to the City of Nashua or other
persons, and Independent 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 the
City of Nashua shall be called upon to contribute to a loss.

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

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