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GENERAL PROVISIONS FOR TERMINATION

Upon termination of the contract, the OWNER may take over the work and prosecute it to
completion by agreement with another party or otherwise. Upon termination of the contract or in
the event CONTRACTOR shal! cease conducting business, the OWNER shall have the right tc
solicit applications for employment from any employee of the CONTRACTOR assigned to the
performance of the contract. Neither party shall be considered in default of the 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
CONTRACTOR's principals, officers, employees, agents, subcontractors, sub consultants,
vendors, or suppliers are expressly recognized to be within CONTRACTOR's control.

ARTICLE 16— 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 OWNER Representative and the CONTRACTOR Representative. At all times,
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 OWNER. If
the parties are unable to resolve their dispute as described above within 30 days, the parties may
request that the dispute be submitted to the Board of Public Works for resolution. If the parties are
dissatisfied with the decision of the Board of Public Works, 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.

ARTICLE 17—- 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

ARTICLE 18— MISCELLANEOUS PROVISIONS

1. Neither party to the Contract shall assign the Contract as a whole without written consent
of the other.

2. Tests, inspections and approvals of portions of the Work required by the Contract

Documents or by laws, ordinances, rules, regulations or orders of public authorities having

jurisdiction shall be made at an appropriate time.

If additional testing is required, the CONTRACTOR shall perform these tests.

4. The OWNER shall pay for tests except for testing Work found to be defective for which
the CONTRACTOR shall pay.

Qo

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

City of Nashua, NH (signature) S.W. Cole Engineering, Inc. (signature)

James Donchess, Mayor
(Printed Name and Title) (Printed Name and Title)

Date Date

Page 12 of 12

THE CITY OF NASHUA “The Gate City

Financtal Services

Purchasing Department

February 15, 2018
Memo #18-093

TO: MAYOR DONCHESS
FINANCE COMMITTEE

SUBJECT: TEMPLE ST. GUARDRAIL (VALUE: NOT-TO-EXCEED $120,000)
DEPARTMENT: 160 ENGINEERING; FUND: GRANT
ACTIVITY: HIGHWAY BLOCK GRANT

Please see the attached communication from Stephen Dookran, P.E., City Engineer, dated February 15,
2018 for information related to this purchase.

Pursuant to § 5-84 Special purchase procedures A. (3) Purchases from a sole manufacturer, where it is
determined to be more efficient and economical to reduce costs of maintenance of additional repair parts,
supplies or services.

The City Engineer, Board of Public Works (Februrary 15, 2018 meeting) and the Purchasing Department
recommend the approval of this contract in amount not-to-exceed $120,000 to William P. Davis
Excavation, LLC of Hampton, NH.

Re C2
x her
Dan Kooken
Purchasing Manager

Ce: S Dookran L Fauteux

229 Main Street » Nashua, New Hampshire 03061 * Phone (603) 589-3330 e Fax (603) 589-3233 |

From:

Re:

C. Motion:

Discussion:

City of Nashua, Public Works Division

Board of Public Works Meeting Date: February 8, 2018

Stephen Dookran, P.E., City Engineer
Engineering Department

Temple St Guardrail

To approve the contract for an amount not to exceed $120,000 to William P.
Davis Excavation, LLC for the installation of guardrail on Temple Street.
Funding will be through Department: 160 Engineering; Fund: Grant; Activity:
Highway Block Grant.

On the north side of Temple St between Amory St and Spruce St, the road is
separated from Pan Am’s railroad tracks by a retaining wall that has a drop of
about 8 feet in places. The existing 1,100 linear feet of chain link fence
protecting against that hazard was installed (circa 1999) by the City after the RR’s
own fence located on top of the retaining wall was determined to be in a
dilapidated condition.

The existing fence itself is now in a deteriorated condition and needs to be
replaced. The Engineering Department has recommended that the replacement
needs to be a guardrail to provide the proper roadside protection to motorists
because of the large drop to the RR tracks and a vehicle had driven through the
fence several years ago. However, installing the 6-ft deep posts to install the
guardrail is difficult with the large Fairpoint Communications underground duct
banks in the way. DPW has reached out to a number of contractors for quotes to
perform the work in a safe and cost effective manner.

The typical guardrail contractors are not interested because of the difficulties in
dealing with the duct banks. However, William P. Davis Excavation has
submitted a proposal to vacuum excavate the post holes in lieu of driving
(hammering) the posts into the ground which is the typical installation method.
Vacuum excavation is digging by using a vacuum to break apart underground
material using high pressure air or water. This method is also known as “Soft
Dig” and is considered safer than hand digging within the tolerance zone around
underground utilities.

At this time, only a preliminary design has been completed since changes to the
layout are expected as the exact location of the ducts and vaults will be found
during the excavation process. We are seeking a contract approval for an amount
not-to-exceed $120,000 which will hopefully cover the unknown conditions.
William P. Davis Excavation, LLC has successfully completed a number of
wastewater related projects for the City and comes highly recommended.

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: William Davis Excavation, LLC

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

PO Box 758

Hampton, NH 03843

For the following Project: | Temple Street Guardrail Installation

ARTICLE 1 — THE CONTRACT DOCUMENTS

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

1.

Dua Rwy

7.

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

Exhibit B - William Davis Excavation, LLC quote;

Exhibit C - Drawings and Specifications provided in the bid documents;

Payment and Performance Bonds;

Certificate of Insurance;

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,
the written change order or the fully executed OWNER Purchase Order shall control over the

terms of the Proposals

Page 1 of 12

ARTICLE 2 — PERIOD OF PERFORMANCE

The 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. CONTRACTOR shall begin
performance upon receipt of an Executed Contract and a valid Purchase Order issued from the

City of Nashua.
ARTICLE 3 —- CONTRACT SUM

Subject to additions and deductions by Change Order, the OWNER shall pay CONTRACTOR,
in accordance with the Contract Documents, the Contract Not to Exceed Sum of:

One Hundred Twenty Thousand and 00/100 Dollars ($120,000.00)

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

ARTICLE 4 — 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.

> Workers’ Compensation Coverage in compliance with the State of NH Statutes,
$100,000/$500,000/$ 100,000.

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

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 shall be no:

1. Withholding of income taxes by the OWNER:
. 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.

mn

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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.

> 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 OWNER 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 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.

Regardless of any coverage provided by any insurance, CONTRACTOR agrees to indemnify
and shall defend 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,
interest, attorney’s fees, costs and expenses of any kind or nature in any manner caused,
occasioned, or contributed to in whole or in part by reason of any negligent act, omission, or
fault or willful misconduct, whether active or passive, of CONTRACTOR or of anyone acting
under its direction or control or on its behalf in connection with or incidental to the
performance of this contract CONTRACTOR’s indemnity, defense and hold harmless
obligations, or portions thereof, shall not apply to liability caused by the sole negligence or
willful misconduct of the party indemnified or held harmless.

Page 3 of 12

General Terms and Conditions

ARTICLE 5 — GENERAL PROVISIONS

1.

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 6 —- 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 shall coordinate and cooperate with separate CONTRACTORs
employed by the OWNER.

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

Page 4 of 12

ARTICLE 7 — CONTRACTOR

1,

10.

11.

12,

Execution of the Contract by the CONTRACTOR is a representation that the
CONTRACTOR has visited the site, become familiar with Jocal 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 Performance Bond and a
Payment 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.

Page 5 of 12

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.

CONTRACTOR warrants and guarantees to OWNER, for_1__year, upon completion of

work, that all Work will be 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 8 — 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 9 — 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.

ARTICLE 10 — PAYMENTS AND COMPLETION

1.

The Contract Sum stated in the Agreement, including authorized adjustments, 1s the total
amount payable by the OWNER to the CONTRACTOR for performance of the Work
under the Contract Documents.

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