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City of Nashua

Purchasing Department
Administrative Services Division (603) 589-3330
229 Main Street - Nashua, NH 03060 Fax (603) 594-3233

March 31, 2021
Memo #21-099

TO: Mayor Donchess
Finance Committee

SUBJECT: Engineering Services for 2021 Sewer Rehabilitation Program in the amount not to exceed
$249,494 funded from bond fund account 81700 Infrastructure Improvements

Please see attached communications from Daniel Hudson, City Engineer, dated February 25, 2021 for
project specific details related to this purchase. Below please find a summary of the purchase approval
request:

Item: Engineering to assist with the sewer rehabilitation program to address aging,
deteriorating and failing sewer infrastructure.

Value: not to exceed $249,494

Vendor: Hayner Swanson Inc

Department: 169 Wastewater
Source Fund: Bond/81700 Infrastructure Improvements

Ordinance: Pursuant to NRO § 5-83 Professional Services (A) In the purchase of accounting,
architectural, auditing, engineering, legal, medical and ambulance services and
purchases of independent professional consultant services for personnel, data
processing, actuarial, planning, management and other comparable purchases
competitive bidding shall not be required.

The Board of Public Works (3/25/21 BPW meeting), Division of Public Works: Engineering, and the
Purchasing Department respectfully request your approval of this contract.

Regards,
Kelly Parkinson

Purchasing Manager

Ce: D Hudson
C O'Connor

To:

From:

Re:

E. Motion:

Discussion:

City of Nashua, Public Works Division

Board of Public Works Meeting Date: February 25, 2021

Daniel Hudson, P.E., City Engineer
Engineering Department

2021 Sewer Rehabilitation - Engineering Services

To approve the engineering services contract for assistance with the sewer
rehabilitation program with Hayner Swanson, Inc. of Nashua, NH in an amount not
to exceed $249,494 pending bond approval. Funding will be through Department
169 Wastewater; Fund: Bond; Activity: Sewer Infrastructure Improvements.

In 2018, the budget for sewer rehabilitation was expanded to $5 million dollars per
year to address aging, deteriorating, and failing sewer infrastructure. The City
engaged Hayner Swanson Inc. (HSI) to provide sewer rehabilitation program
design and construction services support. The work is closely coordinated with the
City’s paving program, which HSI also helps support.

HSI has provided satisfactory service to date, as such, we are requesting to again
contract with HSI to continue their sewer rehabilitation program efforts. The scope
of services includes, but is not limited to, prioritizing sewer segments for inspection
and rehabilitation based on record information, reviewing sewer video inspection
reports and making recommendations for rehabilitation, coordinating with utility
projects and the paving program, preparing plans and specifications for bidding
and/or contract change orders, and providing construction administration. HSI's
current work on the City’s paving program makes the coordination of sewer, paving
and utility projects more efficient.

CONTRACT FOR PROFESSIONAL SERVICES

2021 SEWER REHABILITATION PROGRAM
ENGINEERING SERVICES

A CONTRACT BETWEEN

THE CITY OF NASHUA, 229 MAIN STREET, CITY HALL, NASHUA, NH 03060
AND

HAYNER/SWANSON, INC.
and its successors, transferees and assignees (together “Professional Engineer”)
NAME AND TITLE OF PROFESSIONAL ENGINEER

3 CONGRESS STREET, NASHUA, NH 03062
ADDRESS OF PROFESSIONAL ENGINEER

WHEREAS, the City of Nashua, a political subdivision of the State of New Hampshire, from time to
time requires the services of a Professional Engineer ; and

WHEREAS, it is deemed that the services of a Professional Engineer herein specified are both
necessary and desirable and in the best interests of the City of Nashua; and

WHEREAS, Professional Engineer 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—Hayner/Swanson Proposal dtd February 11, 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.

AG 1 of 3

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

To provide professional services in support of the City of Nashua's Rehabilitation Program of
existing sewerage pipe and structures. The work shall focus on planning, investigation and
engineering related to the 2021 program.

3. PERIOD OF PERFORMANCE. Professional Engineer shall perform and complete all work by December
31, 2021 and shall 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. Professional Engineer shall begin
performance upon receipt of an Executed Contract and a valid Purchase Order issued from the City of
Nashua.

4. COMPENSATION. Professional Engineer agrees to perform the work for a total cost not to exceed

TWO HUNDRED FORTY-NINE THOUSAND FOUR HUNDRED NINETY-FOUR and 00/100 DOLLARS
($249,494.00)

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

Unless Professional Engineer has received a written exemption from the City of Nashua, Professional
Engineer shall submit monthly requests for payment for services performed under this agreement in
accordance with the values stated in the Agreement. Such requests shall be supported by such data
substantiating the Professional Engineer’s right to payment as the City of Nashua may reasonably require.
Professional Engineer shall submit monthly requests for payment for services 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 City of Nashua requires
that all submitted invoices contain a valid PURCHASE ORDER NUMBER.

Requests for payment shall be submitted no later than fifteen (15) days after the end of each month and must

include a detailed summary of the expenditures reported in a form that supports the approved budget.
Specifically, Professional Engineer agrees to provide the following with each request for payment:

AG 2 of 3

1. Appropriate invoice forms. The forms shall include the project purchase order number, a listing
of personnel hours and billing rates, and other expenditures for which payment is sought.

2. A progress report. The report shall include, for each monthly reporting period, a description of
the work accomplished, problems experienced, upcoming work, any extra work carried out, and a
schedule showing actual expenditures billed for the period, cumulative total expenditures billed and
paid to date under the contract, and a comparison of cumulative total expenditures billed and paid to
the approved budget.

The City of Nashua will pay for work satisfactorily completed by Professional Engineer. The City of
Nashua will pay Professional Engineer within 30 days of approval by the City of Nashua of the submitted
invoice forms and progress reports. The City of Nashua will make no payments until the invoice forms and
progress reports have been submitted and approved.

5. EFFECTIVE DATE OF CONTRACT. This contract shall not become effective until and unless approved by
the City of Nashua.

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

CITY OF NASHUA REPRESENTATIVE: HAYNER/SWANSON REPRESENTATIVE:
Daniel Hudson, P.E. — City Engineer John Vancor, P.E. — Vice President

Division of Public Works, Engineering Hayner/Swanson, Inc.

9 Riverside Street 3 Congress Street

Nashua, NH 03062 Nashua, NH 03062

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 Professional Engineer 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.
City of Nashua, NH (signature) \_ Bpymer /Swanson, Inc. (signature)
James W. Donchess, Mayor John C. Vancor, P.E.
(Printed Name and Title) (Printed Name and Title)
41261202\
Date Date

AG 3 of3

SND Ww FY SN

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EXHIBIT A
TABLE OF CONTENTS
GENERAL CONDITIONS
DEFINITIONS
PROFESSIONAL ENGINEER 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
Ciry 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

GC 1 of 12

General Terms and Conditions

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

PROFESSIONAL ENGINEER STATUS The parties agree that Professional Engineer shall have the
status of and shall perform all work under this contract as a Professional Engineer, 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 Professional
Engineer, and nothing in this contract shall create any contractual relationship between the City
of Nashua and Professional Engineer's consultants, sub consultants, contractors, or
subcontractors. The parties also agree that Professional Engineer 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 Professional Engineer 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.

STANDARD OF CARE Professional Engineer shall be responsible for the professional quality,
technical accuracy, timely completion, and coordination of all work performed under this
contract. Professional Engineer 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 Professional Engineer 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 nghts which the
City of Nashua may have, Professional Engineer 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 Professional Engineer's
failure to perform 1n accordance with this standard of care. Any approval by the City of Nashua
of any products or services furnished or used by Professional Engineer shall not in any way
relieve Professional Engineer 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 Professional Engineer'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 Professional Engineer shall
be and remain liable in accordance with the terms of the contract and applicable law.

Professional Engineer shall furnish competent and skilled personnel to perform the work under
this contract. The City of Nashua reserves the right to approve key personnel assigned by
Professional Engineer to perform work under this contract. Approved key personnel shall not
be taken off of the project by Professional Engineer without the prior written approval of the
City of Nashua, except in the event of termination of employment. Professional Engineer 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.

GC 2 of 12

4. Ciry 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
Professional Engineer, and any other communication about the contract shall be addressed or
be delivered to the City of Nashua Representative.

5. 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 Professional
Engineer's performance under the contract. Professional Engineer 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 Professional Engineer should proceed with
any or all of the proposed change. If the change causes an increase or a decrease in Professional
Engineer'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
Professional Engineer for adjustment under this clause shall be asserted in writing within 30
days of the date the City of Nashua notified Professional Engineer of the change.

When Professional Engineer seeks changes, Professional Engineer 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 Professional Engineer should proceed with any or all of the proposed
change.

Except as provided in this paragraph, Professional Engineer 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.

6. Ciry OF NASHUA COOPERATION The City of Nashua agrees that its personnel will cooperate
with Professional Engineer in the performance of its work under this contract and that such
personnel will be available to Professional Engineer 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 Professional Engineer 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 Professional Engineer also agree to attend all meetings called by the City of
Nashua or Professional Engineer to discuss the work under the Contract, and that Professional
Engineer may elect to conduct and record such meetings and shall later distribute prepared
minutes of the meeting to the City of Nashua.

GC 3 of 12

7. DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES
Professional Engineer 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
Professional Engineer. All future questions Professional Engineer 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 Professional Engineer'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
Professional Engineer prior to having received the City of Nashua's resolution shall be at
Professional Engineer's risk and expense. At all times, Professional Engineer 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. Professional Engineer is
responsible for requesting clarification or interpretation and is solely liable for any cost or
expense arising from its failure to do so.

8. 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 Professional Engineer 10 day’s written notice of its intent to do so.

If 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, Professional
Engineer shall:

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

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

In the event of a termination, abandonment, or suspension at will, Professional Engineer shall
receive all amounts due and not previously paid to Professional Engineer 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 Professional Engineer in the event of a failure by Professional
Engineer 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

GC 4 of 12

on the work in a timely and professional manner. Professional Engineer shall be given an
opportunity for consultation with the City of Nashua prior to the effective date of the
termination. Professional Engineer may terminate the contract on 10 calendar days written
notice if, through no fault of Professional Engineer, the City of Nashua fails to pay Professional
Engineer 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, Professional Engineer shall:

1. Immediately discontinue work on the date and to the extent specified in the notice.
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, Professional Engineer shall receive all amounts due and
not previously paid to Professional Engineer 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 Professional Engineer's failure. Professional Engineer 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 Professional Engineer until such time as the exact
amount of damages due to the City of Nashua is determined. All claims for payment by the
Professional Engineer must be submitted to the City of Nashua within 30 days of the effective
date of the notice of termination.

If after termination for the failure of Professional Engineer 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 Professional Engineer 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 Professional Engineer such that Professional
Engineer 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 Professional Engineer shall cease conducting business, the City of
Nashua shall have the nght to solicit applications for employment from any employee of the
Professional Engineer 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 1s beyond the reasonable control of such party. Delays arising from the actions
or inactions of one or more of Professional Engineer's principals, officers, employees, agents,

GC 5 of 12