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10.

Once every thirty (30) days, the CONTRACTOR shall submit an itemized Application
for Payment for operations completed in accordance 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.

Application for Payment 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
OWNER requires that all submitted invoices contain a valid PURCHASE ORDER
NUMBER.

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.

OWNER shall make payments, for work satisfactorily completed and accurately invoiced,
on the basis ofp CONTRACTORs Application for Payment, within 30 days of approval by
the OWNER.

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

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

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.

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.

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.

Page 7 of 12

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 will 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 shail 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

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.

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

WHETHER ARISING FROM BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR IF SUCH LOSS OR DAMAGE COULD HAVE BEEN REASONABLY
FORESEEN.

New Era’s Workmens’ Compensation Insurance covers all New Era personnel.

New Era shall not be responsible for any delays or other failures in performance caused by matters reasonably outside of New
Era’s control. To the extent that the terms and conditions set forth in this Proposal conflict with any terms and conditions set forth
in any Purchase Order or other form, the terms and conditions of this Proposal shall control.

Governing Law: This Proposal and any matters that may arise out of or relate to it shall be governed by the laws of the State of
New Hampshire without giving effect to any choice of law rule. In the event of any claim or dispute between the Parties arising
out of or relating to this Proposal, such claim or dispute may be tried solely in a state or federal court for New Hampshire, and
the Parties hereby irrevocably consent to the jurisdiction and venue of such courts. In the event of any claim or dispute between
the Parties, the prevailing Party may seek reasonable attorneys’ fees and other costs of enforcing this Proposal.

4 New Era Technology | Quote #036508 v2 Jul 18, 2022

The information contained in this documents is confidential, privileged and only for the information of the intended recipient and may not be used, published or
redistributed without the prior written consent.

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.

€. 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.
. 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 shail 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.

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 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, 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.

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Page 11 of 12

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) CONTRACTOR (signature)

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

Date Date

Page 12 of 12

D\ THE CITY OF NASHUA The Gate City’

Financial Services

Purchasing Department

May 10, 2018
Memo #18-125

TO: MAYOR DONCHESS
FINANCE COMMITTEE

SUBJECT: BRIDGE EVALUATION ENGINEERING STUDY — AGREEMENT WITH TOWN OF
HUDSON (VALUE: NOT-TO-EXCEED $25,000)
DEPARTMENT: 161 STREETS; FUND: CAPITAL

Please see the attached communication from Stephen Dookran, P.E., City Engineer, dated April 26, 2018
for information related to this purchase.

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 City Engineer, Board of Public Works and the Purchasing Department recommend the
reimbursement of this study by McFarland Johnson in an amount not-to-exceed $25,000 to the Town of
Hudson, NH.

Purchasing Manager

Cc: S Dookran L Fauteux

229 Main Street e Nashua, New Hampshire 03067 ¢ Phone (603) 589-3330 e Fax (603) 589-3233

To:

From:

Re:

I. Motion:

Discussion:

City of Nashua, Public Works Division
Board of Public Works Meeting Date: April 26, 2018

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

Agreement for Reimbursement for Bridge Evaluation (NH 111 Eastbound and
Westbound) Engineering Study

To approve the Agreement to reimburse the Town of Hudson for the Bridge Evaluation
(NH 111 Eastbound and Westbound) Engineering Study in an amount not to exceed

$ 25,000. Funding will be through Department: 161 Streets; Fund: Capital; Activity:
Bridge Rehabilitation.

The two northern most bridges over the Merrimack River, known as the Veterans
Bridge and the Taylor Falls Bridge, are jointly owned by the City of Nashua and the
Town of Hudson and are part of a the NH 111 east-west arterial road. Average daily
traffic over each of these bridges were about 18,900 vehicles in 2014. The NHDOT
routinely inspects these bridges. The bridges (westbound Veterans built in 1970 and
eastbound Taylor Falls built in 1973) are showing signs of deterioration. From the last
inspection, the substructure and superstructure for both bridges were in the satisfactory
range. However, the NHDOT is concerned that the decks will rapidly deteriorate given
the volume of traffic.

The NHDOT is strongly recommending that the bridges be evaluated or needed repairs
to prevent the bridges from falling into the Red List category. The Town of Hudson has
taken the lead in this study. Hudson has prepared the Request for Proposals and with
the City’s input, has selected McFarland Johnson for a fee of $ 42,500 to complete the
study and provide options for repairs. This Agreement for Reimbursement will allow
the cost of the study to be split evenly between the two parties. This request is for a not
to exceed amount of $25,000 in order to share any additional charges that may be
incurred during the study.

April 17, 2018

AGREEMENT FOR REIMBURSEMENT

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RUKR

BRIDGE EVALUATION
Draft

This agreement is made and entered intc, by and between the City of Nashua, a New
Hampshire municipal corporation, by and through its Division of Public Works, with offices at 9
Riverside Street, Nashua, New Hampshire and the Town of Hudson, 12 School Street,
Hudson, New Hampshire (individually the "City" and the “Town” or "Hudson," respectively,
and collectively as the “Parties’”) and each understands and agrees to the commitments, terms
and conditions contained in this Agreement (the "Agreement").

WHEREAS, City and Town jointly own approximately 50% interest each, in the two
parallel bridges that span the Merrimack River and connect the two municipalities known as the
Taylor Falls/Veterans Memorial Bridges (a.k.a. The Hudson Bridge) (“Bridges”);

WHEREAS, City and Town are jointly responsible for the Bridges;
WHEREAS, the Bridges may need significant repairs and maintenance;

WHEREAS, City and Town have determined that it is in their common interests to
collaboratively address the repairs and maintenance of the Bridges;

WHEREAS, Town has obtained a proposal from an engineering consultant to perform an
evaluation of the Bridges to determine the extent of work and make recommendations on how to
proceed (“Evaluation”); and

WHEREAS, City will reimburse Hudson fifty percent (50%) of the cost of the
Evaluation, in keeping with the Parties' joint responsibility for the Bridges.

NOW, THEREFORE, in consideration of the foregoing, the Parties agree as follows:

1. Evaluation. Hudson will procure proposals and manage the contract with the
selected engineering firm for the Evaluation. Hudson will comply with all applicable laws and
tules in such procurement and management. Except for the amount being contributed by the
City as provided herein, Hudson will be solely responsible for all aspects of the engineering
contract and Evaluation, including but not limited to permits, work quality, and safety, and any
and all costs of the Evaluation. The City shall have the right to an electronic and hard copy of the
Evaluation and the right to copy, distribute and use the Evaluation.

2. City’s Contribution. The City agrees to reimburse Hudson $ for the
Evaluation. The City will pay within 30 days of Hudson’s submittal of written invoice(s)
acceptable to the City. If the Evaluation is not completed by April 1, 2019, and this Agreement
will terminate and no further reimbursements will be made by the City to Hudson for the
Evaluation.