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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 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 11— RETAINAGE

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

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 OWNER, retainage shall be
10% of the monthly payments claimed. The computed amount of retainage will be
deposited in the escrow account established above.

c. After the work is 50% complete, and provided the CONTRACTOR has satisfied
the OWNER 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 12— 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 13 - CORRECTION OF WORK

1. The CONTRACTOR shal! 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.

Page 8 of 12

ARTICLE 14 — 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 OWNER. If OWNER determines that a
conflict exists and was not disclosed to the OWNER, it may terminate the contract at will or for
cause.

ARTICLE 15 — TERMINATION OF THE CONTRACT
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.

Page 9 of 12

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:

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

2. Provide the OWNER 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 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.

5. 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 1s 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.

Page 10 of 12

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

Page 11 of 12

3. PERIOD OF PERFORMANCE. Professional Engineer shall perform and complete all work by December
31, 2022 which date shall only be altered by mutually approved 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
Dollars ( $225,365.00 )

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:

!. Appropriate invoice forms. The forrns 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.

AG 27 of3

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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