Search

with the values stated in the Agreement. Such application shall be supported by such data
substantiating the CONTRACTOR’s right to payment as the OWNER may reasonably
require,

3. Application for Payment performed under this agreement shall be submitted directly to:

OWNER

Accounts Payable

PO Box 2019

Nashua, NH 03061-2019
Attn: Jeanne Walker

To facilitate the proper and timely payment of applications, the OWNER requires that all
applications contain a valid PURCHASE ORDER NUMBER.

4. The CONTRACTOR warrants that title to all Work covered by an Application for Payment
will pass to the OWNER no later than the time of payment. The CONTRACTOR further
warrants that upon submittal of an Application for Payment, all Work for which Certificates
for Payment have been previously issued and payments received from the OWNER shall, to
the best of the CONTRACTOR’s knowledge, information and belief, be free and clear of
liens, claims, security interests or other encumbrances adverse to the OWNER’s interests.

5. OWNER shall make payments on the basis of CONTRACTORs Application for Payment,
approximately 30 days from the time the final payment application is received by the
OWNER, depending upon the timing of submittals and approvals.

6. The CONTRACTOR shall promptly pay each SUBCONTRACTOR and material supplier out
of the amount paid to the CONTRACTOR on account of such entities’ portion of the Work.

7. The OWNER shall have no responsibility for the payment of money to a
SUBCONTRACTOR or material supplier.

8. An Application for Payment, a progress payment, or partial or entire use or occupancy of the
project by the OWNER shall not constitute acceptance of Work not in accordance with the
requirements of the Contract Documents.

9. Substantial completion is the stage in the progress of the Work when the Work or designated
portion thereof is sufficiently complete in accordance with the Contract Documents so the
OWNER can occupy or utilize the Work for its intended use.

10. When the Work or designated portion thereof is substantially complete, the CONTRACTOR
and OWNER shall establish responsibilities for completion and shall fix the time within
which the CONTRACTOR shall finish all items on the list accompanying the Certificate.
Warranties required by the Contract Documents shall commence on the date of Substantial
Completion of the Work or designated portion thereof unless otherwise provided in the
Certificate of Substantial Completion.

11. Upon receipt of a final Application for Payment, the OWNER will inspect the Work. When
he finds the Work acceptable and the Contract fully performed, the OWNER will promptly
issue a final Certificate for Payment.

12. Acceptance of final payment by the CONTRACTOR, a SUBCONTRACTOR or material
supplier shall constitute a waiver of claims by that payee except those previously made in
writing and identified by that payee as unsettled at the time of final Application for Payment.

ARTICLE 12— RETAINAGE

1, The OWNER will retain a portion of the progress payment, each month, in accordance with the
following procedures:

AG-8

a. 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.

b. 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 wil! be
deposited in the escrow account established above.

c. 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.

2. Upon final completion and acceptance of the Work, OWNER shall hold 2% retainage during
the 1 (one) year warranty period and release it only after the project has been accepted.

ARTICLE 13— PROTECTION OF PERSONS AND PROPERTY

1. The CONTRACTOR shall be responsible for initiating, maintaining and supervising all safety
precautions and programs, including all those required by law in connection with performance
of the Contract. The CONTRACTOR shall promptly remedy damage and loss to property
caused in whole or in part by the CONTRACTOR, or by anyone for whose acts the
CONTRACTOR may be liable.

ARTICLE 14 - CORRECTION OF WORK

1, The CONTRACTOR shall promptly correct Work rejected by the OWNER as failing to
conform to the requirements of the Contract Documents. The CONTRACTOR shall bear the
cost of correcting such rejected work.

2. In addition to the CONTRACTOR’s other obligations including warranties under the
Contract, the CONTRACTOR shall, for a period of one year after Substantial Completion,
correct work not conforming to the requirements of the Contract Documents.

3. If the CONTRACTOR fails to correct nonconforming Work within a reasonable time, the
OWNER may correct it and the CONTRACTOR shall reimburse the OWNER for the cost of
the correction.

ARTICLE 15 — PROHIBITED INTERESTS

CONTRACTOR shall not allow any officer or employee of the OWNER to have any indirect or
direct interest in this contract or the proceeds of this contract. CONTRACTOR warrants that no
officer or employee of the OWNER has any direct or indirect interest, whether contractual, non-
contractual, financial or otherwise, in this contract or in the business of the CONTRACTOR.
CONTRACTOR also warrants that it presently has no interest and that it will not acquire any interest,
direct or indirect, which would conflict in any manner or degree with the performance of services
required to be performed under this contract. CONTRACTOR further warrants that no person having
such an interest shall be employed in the performance of this contract. If any such interest comes to
the attention of CONTRACTOR at any time, a full and complete disclosure of the interest shall be
immediately made in writing to the City. If OWNER determines that a conflict exists and was not
disclosed to the City, it may terminate the contract at will or for cause.

AG-9

ARTICLE 16 — TERMINATION OF THE CONTRACT

1. Termination, Abandonment, Or Suspension At Will. The OWNER, 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 OWNER chooses to terminate, abandon, or suspend all or part of the project, it
shall provide CONTRACTOR 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 that part of the project and contract.

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

a. Immediately discontinue work on the date and to the extent specified in the notice.
b. Provide the OWNER with a list of all unperformed services.
C. 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.

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

e. Not resume work after the effective date of a notice of suspension until receipt of a
written notice from the OWNER to resume performance.

In the event of a termination, abandonment, or suspension at will, CONTRACTOR shall receive all
amounts due and not previously paid to 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.

2. Termination for Cause. This agreement may be terminated by the OWNER on 10 calendar
day’s written notice to CONTRACTOR in the event of a failure by 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 OWNER, to complete or make sufficient progress on the work in a timely and
professional manner. CONTRACTOR shall be given an opportunity for consultation with the
OWNER prior to the effective date of the termination. CONTRACTOR may terminate the
contract on 10 calendar days written notice if, through no fault of CONTRACTOR, the
OWNER fails to pay CONTRACTOR for 45 days after the date of approval by the OWNER
of any Application for Payment.

Upon receipt of notice of termination for cause, CONTRACTOR shall:

a. Immediately discontinue work on the date and to the extent specified in the notice.
b. Provide the OWNER with a list of all unperformed services.
C. 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.

AG-10

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

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

In the event of a termination for cause, CONTRACTOR shall receive all amounts due and not
previously paid to 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 OWNER by reasons of
CONTRACTOR’s failure. CONTRACTOR shall not be relieved of liability to the OWNER for
damages sustained from the failure, and the OWNER may withhold any payment to the
CONTRACTOR until such time as the exact amount of damages due to the OWNER is determined,
All claims for payment by the CONTRACTOR must be submitted to the OWNER within 30 days of
the effective date of the notice of termination.

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

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 shall cease conducting business, the
OWNER shall have the right to 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, sub-
contractors, sub consultants, vendors, or suppliers are expressly recognized to be within
CONTRACTOR's control.

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.

AG-11

ARTICLE 18—- MISCELLANEOUS PROVISIONS

1.

2.

2

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

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.

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

OWNER (signature) CONTRACTOR (signature)

James Donchess, Mayor

(Printed Name and Title) (Printed Name and Title)

Date

Date

AG-12

REPORT OF THE FINANCE COMMITTEE
MAY 3, 2016

A meeting of the Finance Committee was held on Tuesday, May 3, 2016, at 6:00 p.m. in the Aldermanic
Chamber.

Mayor Jim Donchess, Chair, presided.

Members of the Committee present: Alderman-at-Large Mark S. Cookson, Vice Chair
Alderman-at-Large Lori Wilshire
Alderman-at-Large Michael B. O’Brien
Alderman June M. Caron
Alderman Ken Siegel

Members not in Attendance: Alderman Benjamin M. Clemons

Also in Attendance: Mr. Dan Kooken, Purchasing Manager

PUBLIC COMMENT - None
COMMUNICATIONS

From: Dan Kooken, Purchasing Manager
Re: Contract Award Legacy Playground at Labine Park (Value: $233,803)

MOTION BY ALDERMAN SIEGEL TO ACCEPT, PLACE ON FILE AND AWARD THE CONTRACT TO D.L.
KING & ASSOCIATES IN THE AMOUNT OF $233,803. FUNDS ARE AVAILABLE IN DEPARTMENT 177,
PARKS AND RECREATION; PRIOR YEAR ESCROWS, LABINE PARK

ON THE QUESTION

Alderman Cookson

Just for clarification, have we received the contribution from the Nashua Leadership class?

Mayor Donchess

| think where we are is that we received a check but we have been asked not to deposit it until the contract is
awarded.

Alderman Cookson
So by awarding this...doesn’t that seem a little backwards?

Mayor Donchess

Maybe | should say until the contract is approved. | think if we were to approve this contract now and we
deposit the money if the money weren’t there then we wouldn’t go ahead.

Alderman Cookson

So they were contributing what, $165,000?

Finance Committee Page 2
May 3, 2016

Mayor Donchess

Yes, | think so.

Alderman Cookson

We made up the difference in one of our previous Finance Committee meetings, is that correct?
Mayor Donchess

Correct.

Alderman Cookson

What we had expected the difference to be?

Mayor Donchess

Correct. This plus the contribution gets us everything except for the carousel. There is $20,000 in the CDBG
allocation for the bathrooms and there will probably be the carousel money in the budget that is being
proposed.

Alderman Cookson

Then there was another item that was excluded from this contract that we are going to purchase. | can't
remember how it was described, some wood carpeting.

Alderman Siegel

It’s referred to in the contract as wood carpeting but that was taken out of this.
Alderman Cookson

But it indicated in the contract that we would be purchasing and installing it ourselves.
Alderman Siegel

The city would be responsible for the labor part of that according to the detailed contract.
Alderman Cookson

So that was a $20,000 item?

Mayor Donchess

| think it was $12,000.

MOTION CARRIED

Mayor Donchess

The contract is approved contingent on receiving the contribution money from the Legacy Playground
organization.

Finance Committee Page 3
May 3, 2016

From: Dan Kooken, Purchasing Manager
Re: LED Street Light Conversion Project (Value: $1,455,694)

MOTION BY ALDERMAN SIEGEL TO ACCEPT, PLACE ON FILE AND, CONTINGENT UPON BOARD OF
PUBLIC WORKS AND BOARD OF ALDERMEN APPROVAL, AWARD THE CONTRACT TO SIEMENS
INDUSTRY, INC., IN THE AMOUNT OF $1,455,694. SOURCE OF FUNDING IS DEPARTMENT 161,
STREET; LED LIGHTING BOND

ON THE QUESTION
Alderman Siegel

We have been given a contract that isn’t a contract. We have been given a boiler plate city document which is
not signed and there is nothing specified. There is a statement of what the items are to be delivered in this but
no schedule and nothing signed. | would recommend against approving this since we are not approving a
contract we are approving a boiler plate to be filled in later which seems to me to be directly contrary to what
we are supposed to do as a committee. | like the idea of the LED lighting though.

Mayor Donchess

We can, by the next meeting, work out the specifics. We think what it will provide is work will start within about
30 days and completed within about 24 weeks.

Alderman Siegel

| might also point out that this is contingent upon Board of Public Works approval anyways so we can catch it
at the next Finance Committee meeting pending the outcome, which is probably going to me not much in
doubt.

MOTION BY ALDERMAN SIEGEL TO TABLE UNTIL THE NEXT FINANCE COMMITTEE MEETING
ON THE QUESTION

Alderman O’Brien

| just have a question, is there still enough time to get this all done where it has to go to a second committee
and summer is coming and you have a short window here.

Mayor Donchess

| did talk to the Director of Public Works about the issue of approving this in two weeks and they see no
problem with getting this done this year with that timeframe.

Alderman Siegel
One remark | might make is that because this is north of $1 million it needs full Board approval so it has to go

the Board of Public Works to us, having been tabled and then catch the next round of the Board of Aldermen
so we will miss the next meeting and then we are two weeks out from there.

Mayor Donchess
Yes, so this would be approved by the Board of Aldermen on that schedule on May 24, 2016.

MOTION CARRIED

Finance Committee Page 4
May 3, 2016

UNFINISHED BUSINESS — None
NEW BUSINESS — None
RECORD OF EXPENDITURES

MOTION BY ALDERMAN SIEGEL THAT THE FINANCE COMMITTEE HAS COMPLIED WITH THE CITY
CHARTER AND ORDINANCES PERTAINING TO THE RECORD OF EXPENDITURES FOR THE PERIOD
TO APRIL 15, 2016 TO APRIL 28, 2016

ON THE QUESTION

Alderman Siegel

| did receive an e-mail from Mr. Kooken regarding an expenditure from Financial Services for Town Fair Tire
and it seemed unusual that an expense would come from Town Fair Tire through Financial Services.
Apparently it’s a refund of some registration fees and | guess | want to understand ultimately how the heck that
ended up through Financial Services as opposed to the Clerk’s office.

Mr. Kooken

| can follow-up and get back to you on that. | spoke with John Griffin and David Fredette. I'll go over it with
you tomorrow.

Alderman Siegel

| just have two more items; the fire department has a $1,000 educational expense for educational assistance to
the Chamber of Commerce. I’m trying to understand what the Chamber of Commerce...| thought we had
specific courses that we could take.

Alderman O’Brien

| am going to be reaching here but | think the fire department participates in the Leadership Greater Nashua
which is a program that is run by the Chamber of Commerce?

Alderman Siegel

That’s exactly what my presumption would be and that’s exactly why | am disappointed that we have $1,000
expenditure because | think it’s a useless program personally and | would just assume see city dollars not
spent on that. That’s my opinion. | have one last item. | noticed in Community Services that there was over
$1,000 spent in outreach marketing to Hippo Press and Rumbo and |’m trying to figure out why we would
spend money in those two...where that would come from because the Hippo, eh, but the Rumbo is the
Merrimack Valley Bilingual Paper and it seems to primarily serve Lawrence, MA. Between the two of the it’s
$1,008: its $568.00 and $440.00.

Mayor Donchess

We can get an explanation on that but are you still moving to approve the expenditures?
Alderman Siegel
Yes, the money has been spent already so yes.

MOTION CARRIED

Finance Committee Page 5
May 3, 2016

PUBLIC COMMENT - None

POSSIBLE NON-PUBLIC SESSION

ADJOURNMENT

MOTION BY ALDERMAN WILSHIRE TO ADJOURN
MOTION CARRIED

The Finance Committee meeting was adjourned at 6:14 p.m.

Alderman Ken Siegel
Committee Clerk