Search

Page Three CONTRACT

17, Whenever under this Agreement notice is required to be given, it shall be in writing, sent
by registered mail, return receipt requested, and shall be deemed to have been given on the date
when such notice is posted:

a) lf to Municipality:

James W. Donchess
229 Main street
Nashua, New Hampshire, 03061

b) If to Auctioneer:

Eric Merback

Quaker City Auctionsers, Inc,
409 Easton Road, Suite 1014
Willow Grave, PA 19090

18, This agreement shall be governed and construed in accordance with the law of the State
of New Hampshire. Any action, cause of action, or claim arising pursuant to this magreement,
the work performed or to be performed thereunder, or in any way referable thereto shall be
brought.in the New Hampshire Superior Court for the Southern District of Hillsborough County or
the New Hampshire 9" Circuit Court — Nashua and not elsewhere.

IN WITNESS WHEREOF, the parties hereto have, by their duly authorized representatives,
pljaced their hands and seals on the date first above written.

By Municipality
City of Nashua By Auctioneer
QUAKER CITY AUCTIONEERS, INC.

By. _ By C Ate WM erluek,
James W. Donchess / Eric Merbaék,
Mayor, City of Nashua President

Date: Date: 8 ~ 26 - ZOlF

(

Py

THE CITY OF NASHUA “The Gate City’

Financial Services

Purchasing Department

August 29, 2019
Memo #20-021

TO: MAYOR DONCHESS
FINANCE COMMITTEE

SUBJECT: LOW FLOOR CUTAWAY VAN (VALUE $123,894)
DEPARTMENT: 181 COMMUNITY DEVELOPMENT; FUND: TRANSIT GRANTS
ACTIVITY: CERF

Please see attached communication from Camille Pattison, Transportation Manager, dated August 8,
2019 for information related to this contract award.

Pursuant to § 5-78 Major purchases (greater than $10,000) A. All supplies and contractual services,
except as otherwise provided herein, when the estimated cost thereof shall exceed $10,000 shall be
purchased by formal, written contract from the lowest responsible bidder, after due notice inviting bids.

The Community Development Department and the Purchasing Department recommend the award of this
purchase to New England Wheels of Billerica, MA in an amount of $123,894.

fb
Dan Kéoken
Purchasing Manager

Cc: C. Pattison J. Graziano

229 Main Street e Nashua, New Hampshire 03061 e Phone (603) 589-3330 © Fax (603) 589-3233

s Community Development 589-3095
City of Nashua Planning and Zoning 589-3090

. Las Building Safet 589-3080
Community Development Division Code Enforcanent 589.3100
City Hall, 229 Main Street, PO Box 2019 Can Programs mission bonaree
Nashua, New Hampshire 03061-2019 Transportation 880-0100
www.nashuanh.gov FAX 589-3119

Date: August 8, 2019
To: Jim Donchess, Mayor
From: Camille Pattison, Transportation Manager

Re: Finance Committee — Purchase of 1 Low Floor Cutaway Van

In August, the Nashua Transit System (NTS) was awarded $110,000 dollars in 5310 funds from the
State of NH to purchase 1 Low Floor Cutaway Van.

The Nashua Transit System (NTS) went out to bid under RF'P0/52-071919 Preposal for Low Floor
Cutaway Vans for NTS to replace one of its para-transit vans, with the option for up to five more,
over the summer of 2019, in accordance with both the City of Nashua and FTA procurement
procedures. We received proposals for four different vehicles from two companies. New England
Wheels provided a proposal for a Front Runner and Creative Bus Sales provided proposals for two
Arboc Vans and the Lonestar Promaster. Per FTA requirements, the City determined that New

England Wheels met the criteria as a responsive and responsible contractor in accordance with 49
USS.C. § 5325) of the United States Code.

The proposal from New England Wheels was presented at a base cost of $114,618 for each Low
Floor Cutaway Van. The City requested costs for additional options. The City selected 6 additional
options and asked New England Wheels to send a best and final offer, which resulted in a final cost
of $123,894.

In addition, the City of Nashua worked with the Nashua Regional Planning Commission (NRPC)
and the State of NH, to secure matching funds from the State to offset the City’s costs in this
purchase. The State of NH has committed to pay half of the local match ($6,947), through their
FY19 fiscal budget and State Transportation Improvement Plan (STIP), which leaves only ($6,947)
of the total contract to be funded by the City. The City’s portion is part of the approved CERF
funding plan for FY17.

Nashua Transit recommends awarding the contract to replace one of the City’s Low Floor Cutaway
Vans to New England Wheels, Billerica, MA, in the amount of $123,894.

Contract
8/16/19

CITY OF NASHUA CONTRACT FOR
THE SALE OF GOODS

This Contract for the Sale of Goods ("Contract") is made and entered into as of the
__ day of 2019 ("Effective Date") by and between the City of Nashua, a
municipal corporation ("City" or "Buyer"), and New England Wheels, ("Seller") and
hereby acknowledges the request to purchase one (1) Low Floor Cutaway Van with the
option to buy up to 5 additional vans. This Contract, all exhibits to the Contract, and
Appendix A Van Specifications, are collectively referred to as the "Contract Documents."

RECITALS
City issued the RFP on June 7, 2019 which RFP is incorporated herein by this reference;

A. City is in need of up to six (6) low floor cutaway vans ("Vans" or "Goods"), as
more fully described in the Contract Documents;

B, Seller submitted a proposal in response to the RFP which is acceptable to the City;

C. City has determined that Seller is capable of providing the Vans at a reasonable
price and in a timely manner; and,

D. City agrees to purchase the Vans from Seller, subject to the terms and conditions of
the Contract Documents.

NOW, THEREFORE, in consideration of the mutual covenants and promises of
City and Seller contained herein and the receipt of good and valuable consideration, the
receipt of which is hereby acknowledged, City and Seller hereby agree as follows:

AGREEMENT

1. Recitals. The above Recitals are true and correct and incorporated herein by
reference.

2. Purchase of Vans. Seller agrees to sell to City and City agrees to purchase from
Seller one (1) Van as an initial purchase with the option to purchase five (5) more Vans all
pursuant to the terms of this Contract and the other Contract Documents. A complete
listing of the required specifications for the Vans is contained in "Section 5 Technical
Specifications” of the RFP. In the event of a conflict between this Contract and the other
Contract Documents, the terms of this Contract shall control for all purposes.

3. Term of Contract. This Contract shall be effective as of the Effective Date
executed and shall terminate five (5) years from the Effective Date or after all five (5)
optional Vans have been purchased and delivered, whichever is later, unless earlier
terminated or extended as provided for herein. Provided, however, that in no event shall the
term of this Contract be for longer than 5 years.

4. Purchase Price for Low Floor Cutaway Vans. The total price of the Low
Floor Cutaway Vans, as further summarized on Exhibit A of this Contract, shall not exceed
$ 123,894 each for Vans, without City's prior written approval.

5. Invoicing and Payment. Seller shall invoice the City for the full price of each
Low Floor Cutaway Van within thirty (30) calendar days following the date of final
acceptance for such Van. For purposes of this Contract, "date of final acceptance" shall
mean the date each Low Floor Cutaway Van is inspected and accepted pursuant to Section
7 of this Contract. No finance charges shall be paid by the City. The City shall pay Seller
within thirty (30) calendar days of receipt of an undisputed invoice or payment will be
made ina reasonable length of time after approval and receipt of funds from FTA or other
funding sources, where applicable. There will be no prepayments or down payments made
on this procurement.

A. Invoicing. Seller’s invoices must include the City’s Purchase Order number,
be billed and payable in U.S. dollars and paid by payment methods agreed to by both the
Seller and City. All requests for payment shall be mailed to: Accounts Payable, City of
Nashua, 229 Main St., Nashua, New Hampshire 03060.

6. Delivery of Goods. Unless otherwise specified in writing by the City, Seller
shall deliver the Low Floor Cutaway Vans to City at City's offices located at 11 Riverside
Street Nashua, New Hampshire with shipping and insurance charges included in the price.
Shipments shall be accepted Monday through Friday, 8:00 AM to 4:00 PM, excluding
holidays. Seller is required to notify the City’s purchasing agent in advance if delivery
cannot be made during these hours.

Delivery must be at a mutually agreed upon time, no later than February 30, 2020.
The Low Floor Cutaway Vans shall be delivered to City by Seller free of any liens and
encumbrances.

7. Inspection and Acceptance. The Low Floor Cutaway Vans shall be received
by City subject to City's reasonable inspection, testing, approval, and acceptance. If the
Low Floor Cutaway Vans are rejected by the City as nonconforming, City may return the
Low Floor Cutaway Vans to Seller at Seller's risk and expense, and the Low Floor
Cutaway Vans shall not be replaced or repaired by Seller without written authorization
from City. If City does not provide written acceptance or a list of deficiencies within the
thirty (30) calendar days following Seller's delivery of the Low Floor Cutaway Vans as
required by Section 6 of this Contract, the Low Floor Cutaway Vans shall be deemed
accepted.

8. Title/Risk of Loss. Title, ownership, and risk of loss or damage of the Low
Floor Cutaway Vans shall remain with Seller until the Low Floor Cutaway Vans are
delivered to, inspected and accepted by City, except when such loss or damage is due to the
fault or negligence of City. Once accepted by City, title, ownership, and risk of loss shall
transfer to City.

9. Termination and Suspension. The City, in its sole discretion, shall have the
right to terminate, abandon, or suspend all or part of the project and contract at will. Ifthe
City chooses to terminate, abandon, or suspend all or part of the project, it shall provide
Seller thirty (30) day’s written notice of its intent to do so. If all or part of the project is
suspended for more than ninety (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, Seller

shall:
a. Immediately discontinue work on the date and to the extent specified in the
notice.
b. Provide the City 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 City 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 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 City to resume performance.

In the event of a termination, abandonment, or suspension at will, Seller shall
receive all amounts due and not previously paid to Seller for work satisfactorily completed
in accordance with the Contract Documents 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.

TERMINATION FOR CAUSE

This agreement may be terminated by the City on ten (10) calendar day’s written
notice to Seller in the event of a failure by Seller 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, to
complete or make sufficient progress on the work in a timely and professional manner.
Seller shall be given an opportunity for consultation with the City prior to the effective date
of the termination.

Upon receipt of notice of termination for cause, Seller shall:
1. Immediately discontinue work on the date and to the extent specified in the notice.

3

2. Provide the City 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 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 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 to resume performance.

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

If after termination for the failure of Seller to adhere to any of the terms and conditions
of the contract or for failure to satisfactorily, in the sole opinion of the City, to complete or
make sufficient progress on the work in a timely and professional manner, it is determined
that Seller had not so failed, the termination shall be deemed to have been a termination at
will. In that event, the City shall, if necessary, make an adjustment in the compensation
paid to Seller such that Seller 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 City may take over the work and prosecute it
to completion by agreement with another party or otherwise. Upon termination, City shall
be entitled to all work and goods produced or received as of the date of termination, unless
otherwise returned or rejected by the City. Upon termination of the contract or in the event
Seller shall cease conducting business, the City shall have the right to solicit applications
for employment from any employee of the Seller 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 Seller’s principals, officers, employees, agents, subcontractors, sub consultants,
vendors, or suppliers are expressly recognized to be within Seller’s control.

10. Indemnification. To the fullest extent permitted by law, Seller shall
indemnify, protect, defend, and hold harmless City, its officers, officials, agents,
employees and volunteers from and against any and all claims, damages, demands,
liability, costs, losses and expenses, including without limitation, court costs and
reasonable attorneys' and expert witness fees resulting from, or related to, this Contract,
and/or arising out of any failure to comply with applicable law, any injury to or death of
any person(s), damage to property, loss of use of property, economic loss or otherwise
arising out of the performance of the work described herein, except where such loss or
damage was caused by the sole negligence, or willful misconduct of the City. The
provisions of this section shall survive the completion, termination or suspension of this
Contract.

City shall promptly notify Seller of any claim and reasonably cooperate, assist and
provide appropriate information (at Sellers's expense) for the defense of the action. Seller
shall pay all damages and costs awarded therein against City but shall not be responsible
for any compromise made without Seller's consent, which consent shall not be
unreasonably withheld.

11. Warranties. In addition to any warranties provided for under the Contract
Documents, Seller warrants that the Low Floor Cutaway Vans , including any component
or replacement parts, furnished, manufactured or provided by Seller will be free from
defects in material and workmanship for a period of one hundred and eighty (180) days
from date of acceptance of the Low Floor Cutaway Vans by City. Any additional
warranties provided by law, including, but not limited to, the warranty of merchantability
and warranty of fitness for a particular purpose shall remain in full force and effect and
inure to the benefit of City. City reserves all rights and remedies provided by law for
breach of any applicable warranty related to the Low Floor Cutaway Vans.12.

Insurance. Seller shall provide insurance coverage pursuant to Exhibit B attached hereto,
and provide proof of insurance to City's satisfaction.

13. Remedies. In the event of a material breach of the Contract Documents by
Seller, City may avail itself of any other right and remedies available at law or in equity.
Nothing herein shall limit City's rights to seek any available remedy including, but not
limited to, damages and/or equitable relief, in a court of competent jurisdiction.

Notwithstanding any provisions of this Contract, Seller shall not be relieved of
liability to City for damages sustained by City by virtue of any breach of this Contract by
Seller, and City may withhold any payments due to Seller until such time as the exact
amount of damages, if any, due City from Seller is determined. In the event of termination,
Seller shall be compensated as provided for in this Contract.

14. Compliance with Laws & Federal Changes. Seller shail comply with all
applicable laws, ordinances, codes, rules, regulations, programs, plans, and orders in the
performance of the Contract Documents. Without limiting the foregoing, Seller shall
comply with all applicable FTA regulations, policies, procedures and directives, including
without limitation those listed directly or by reference in the Master Agreement between
the City and FTA, as they may be amended or promulgated from time to time during the

5

term of the contract. Seller's failure to comply shall constitute a material breach of the
contract.

15. Notice of Material Change in Business. Seller agrees that, if it experiences a
material change in its business during the term of this Contract, including, without
limitation, a reorganization, restructuring, leveraged buyout, and/or bankruptcy, Seller will
mmediately notify City of the change in writing.

16. Notices. All notices, requests, demands, and other communications
required to or permitted to be given under the Contract Documents shall be in writing and
shall be conclusively deemed to have been duly given (a) when hand delivered to the other
party; (b) when received if sent by telex or facsimile at the address and number set forth
below; (c) three (3) business days after the same have been deposited in a United States
Post Office with certified mail, return receipt requested, postage prepaid and addressed to
the parties as set forth below; or (d) the next business day after same have been deposited
with a national overnight delivery service reasonably approved by the parties (Federal
Express and UPS being deemed approved by the parties), postage prepaid, addressed to the
parties as set forth below with next-business-day delivery guaranteed:

TO SELLER: Name: New England Wheels INC.
Attn: Paul LaRose
Address: 33 Manning Road
City: Bulerica, MA 01821

Telephone: 978-663-9724

TO CITY: Name: Nashua Transit System
Attn: Camille Pattison
Address: 11 Riverside Street
City: Nashua, NH 03062

Telephone: 603-821-2035

A party may change or supplement the addresses given above, or designate
additional addresses, for purposes of this section by giving the other parties written notice
of the new address in the manner set forth above.

17. Entire Agreement. The Contract Documents, including all attachments
thereto, contain the entire agreement between City and Seller in connection with the
transaction contemplated hereby and the subject matter hereof and the Contract Documents
supersede and replace any and all prior and contemporaneous agreements, understandings,
and communications between the parties, whether oral or written, with regard to the subject
matter hereof or any course of dealing, course of performance, or usage of the trade. Parol
evidence shall be inadmissible to show agreement by and between City or Seller to any
term or condition contrary to or in addition to the terms and conditions contained in the
Contract Documents. Both parties acknowledge that each has not relied on any promise,
representation or warranty, express or implied, not contained in the Contract Documents.

6

18. Modification. The Contract Documents shall not be modified in any
manner except by a writing signed by both City and Seller provided that the City at any
time by written order and without notice may make changes within the general scope of this
Contract. If any such changes cause an increase or decrease in the cost of or the time
required for performance hereunder, an equitable adjustment shall be made by written
modification to the Contract. Any claim by the Seller for adjustment under this clause
noust be asserted within thirty (30) days from the date of receipt by the Seller of the
notification of change.

19. Assignment. Seller shall not delegate or subcontract any duties or assign
any rights or claims under the Contract Documents without City's prior written consent.

20. Severability. If any term or provision of the Contract Documents shall, to
any extent, be held invalid or unenforceable, the remainder of the Contract Documents
shall not be affected.

21, Waivers. A waiver or breach of a covenant or provision in the Contract
Documents shall not be deemed a waiver of any other covenant or provision in the
Contract Documents and no waiver shall be valid unless in writing and executed by the
waiving party. An extension of time for performance of any obligation or act shall not be
deemed an extension of the time for performance of any other obligation or act.

22. Construction. The section headings and captions of this Contract are, and
the arrangement of this instrument is, for the sole convenience of the parties to this
Contract. The section headings, captions, and arrangement of this instrument do not in any
way affect, limit, amplify, or modify the terms and provisions of this Contract. The
singular form shall include plural, and vice versa. Unless otherwise indicated, all
references to sections are to this Contract. All exhibits referred to in this Contract are
attached hereto and incorporated herein by this reference.

23. Drafting. City and Seller acknowledge and agree that the Contract
Documents have been negotiated at arm's length, that each party has been represented by
independent counsel and/or has had an opportunity to consult with and be represented by
independent counsel, that the Contract Documents are deemed to be drafted by both
parties, that no one party shall be construed as the drafter of the Contract Documents, and
that any rule of construction that ambiguities are to be construed against the drafter shall
not apply in the interpretation or construction of the Contract Documents.

24. Counterparts. This Contract may be executed in one or more counterparts.
Each shall be deemed an original and all, taken together, shall constitute one and the same
instrument.

25. Time of the Essence. Seller and City hereby acknowledge and agree that
time is strictly of the essence with respect to each and every term, condition, obligation,
and provision hereof, particularly, and without limitation of factors contributing to the need
for timely compliance of the Contract Documents.