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DIVISION 5
AGREEMENT
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONTRACTOR
THIS AGREEMENT is dated as of the day of in the year 2019 by and between
the City of Nashua, New Hampshire (hereinafter called OWNER) and Kenyon Pipeline Inspection, LLC
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 for the 2019 CIPP Lining Project consists of work on various residential and
arterial streets in Nashua. Work includes approximately 22,310 linear feet of cure-in-place pipe
(CIPP) lining, sewer manhole rehabilitation, installation of new sewer manholes, point repair of
sewer lines at various locations, and miscellaneous other sewer and paving items.
ARTICLE 3 - ENGINEER
3.01 The Project has been designed by: Division of Public Works
Engineering Department
9 Riverside Street
Nashua, NH 03062
who is hereinafter called ENGINEER and who is to act aa 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.
4.02 Dates for Substantial Completion
A. Project will begin once a written “Notice to Proceed” is issued.
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B. Substantial Completion shall be 185___ calendar days from the Notice to Proceed and
Final Completion shall be___215__ calendar days from the Notice to Proceed.
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
proceeding 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 HUNDRED dollars ($100) 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
TWO HUNDRED dollars ($200) 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. In the event that the CONTRACTOR fails to pay OWNER the specified liquidated damages
amount within thirty (30) days of CONTRACTOR 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:
Two Million Eight Hundred Twenty-Five Thousand One Hundred Thirty-Five and 00/100 Dollars
($2,825,135.00)
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 Bid Schedule;
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
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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. Applications for Payment 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 the OWNER. The principal will be held by the bank, available
only to the OWNER, until termination of the contract.
2. Until the 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.
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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 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.
E. 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.
F, 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.
G. 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.
H. 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.
I. 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
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and all additional examinations, investigations, explorations, tests, studies, and data with the Contract
Documents.
J. 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.
K. 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
8.01 Contents
A.
1. The Contract Documents are defined in Article 1 of the General Condition as amended
herein.
2. The Drawings are entitled ”2019 CIPP Lining Project, prepared by Hayner/Swanson,
Inc., prepared for the Division of Public Works, City of Nashua, dated January 14, 2019,
consisting of 34 Sheets”.
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.
os
. “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.
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.
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.
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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
Address for giving notices to OWNER: Address for giving notices to CONTRACTOR:
Division of Public Works Kevin Mitchell
Engineering Department Kenyon Pipeline Inspection, LLC
9 Riverside Street 68 Park Road
Nashua, NH 03062 Queensbury, NY 12804
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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 OWNER and CONTRACTOR or
identified by ENGINEER on their behalf.
CITY OF NASHUA —- OWNER
James Donchess, Mayor City of Nashua
Date:
CONTRACTOR:
By:
Kenyon Pipeline Inspection, LLC (Authorized Representative)
Print Name:
Date:
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DIVISION 6
GENERAL CONDITIONS
