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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

And the CONTRACTOR: — Siemens Industry, Inc. Intelligent Traffic Systems

9225 Bee Cave Road
Building B, Suite 101
Austin, TX 78733

and its successors, transferees and assignees (together
“CONTRACTOR”)

For the following Project: | LED Street Lighting Conversion Project

RFP0609-031116

ARTICLE 1 —- THE CONTRACT DOCUMENTS

The CONTRACTOR shall complete the work described in the Contract Documents for this project.
The documents consist of:

1.

aS

7.

This Agreement signed by the OWNER and CONTRACTOR, including the General Terms
and Conditions;

Scope of Work;

Drawings and Specifications provided in the bid documents;

Change Order Form;

Insurance Certificate;

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

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ENGINEERING DESIGN PHASE CONTRACT Page 2 of 6
For Professional Services for Treatment Works

|. SERVICES TO BE PERFORMED BY THE ENGINEER

Upon execution of this AGREBVIENT, the ENGINEER agrees to proceed with all engineering, surveying, drafting,
calculations, borings, and other work as required and necessary to develop and produce final plans, specifications, and
associated contract documents involved in the construction of treatment works for: Digester Heat Exchanger and Stair
Tower Fan Upgrade, Scope of Work attached as Exhibit A, as recommended in Engineering Report , entitled “Nashua

WWTF 20-Year Facility Plan” dated July 28, 2021 and+ormedited bya Repert dated —__+_. The ENGINEER further
agrees that said services shall include, but shall not necessarily be limited to:

1. Plans, Secifications, and Contract Documents
a. Thepreparation of detailed plans, specifications, and contract documentsin accordance with the rules and
regulations of the New Hampshire Department of Environmental Services, Water Division, hereinafter called
the DIVISON, ready for the receipt of bids and the award of construction contracts for said construction; the
work shall also include the preparation of estimates of the cost of construction based on the contract
documents. Prepare applications with supporting and associated documents for Federal, Sate and other
grant or loan programs. Assists the OWNERin securing grants or loans by State, Federal and other agency.

c. The furnishing of teA-48} six (6) copies of the final plans, specifications, and contract documents to the
OWNER; and three (3) copies of which are to be submitted to the DIVISON. Additional copies to be available
at cost to the OWNER

Il. THE OWNERS RESPONSBILITIES

A. Assist the ENGINEERby placing at their disposal all available information pertinent to the PROJECT, including
previous reports and other data relative to the reports.

B. Make provisions for the ENGINEER to enter upon public and private lands, municipal facilities and industrial
establishments as required to perform work under this AGREEMENT.

C. The OWNER also agrees to comply with DIVISON and Federal requirements (where app oa) -andturtheragrees

III. TIME OF OOMPLETION

A. The ENGINEER agrees that they. will corip ee T Tasks 1 thre ar 5in Exhibit A -he-wittsubmitte the DRASION fer

Rev.2020-09

written change order or the fully executed Owner Purchase Order shall control over the terms of the
Proposals

ARTICLE 2 —- PERIOD OF PERFORMANCE

The CONTRACTOR shall perform and complete all work within the time periods set forth. The time
periods 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. The CONTRACTOR shall begin
performance upon receipt of an Executed Contract, a valid Purchase Order issued from the
OWNER, and a Notice to Proceed.

ARTICLE 3 - CONTRACT TIMES
3.01 Time of the Essence

All time limits for Milestones, if any, Substantial Completion, and completion and readiness
for final payment as stated in the Contract Documents are of the essence of the Contract.

3.02 Date of Final Completion
The Work will be completed within 180 Calendar Days from Notice to Proceed.
3.03 Liquidated Damages

If CONTRACTOR breaches their obligation to install product within 180 calendar days of
Notice to Proceed, CONTRACTOR shall pay OWNER $0.20 per calendar day per fixture for
each day of delay as liquidated damages. Should CONTRACTOR fail to make such payment,
the OWNER may reduce further applications for payment on a dollar for dollar basis
commensurate with damages incurred to date. Liquidated damages shall be capped at
$400,000.

The parties agree that quantifying losses arising from CONTRACTOR’s delay in inherently
difficult, and further stipulate that the agreed upon sum is not a penalty, but rather a
reasonable measure of damages, based upon the parties’ knowledge of anticipated savings
resulting from fixture conversion.

This provision shall apply in the event of concurrent delay or delay caused by a third party,

Furthermore, should CONTRACTOR complete installation of product sooner than 150
calendar days from date of Notice to Proceed, they will be entitled to an early completion
bonus equal to $0.10 per calendar day per fixture for every day between the completion date
and 180 calendar days from date of Notice to Proceed. Such bonus will be recognized via
change order executed by both parties.

ARTICLE 4~ CONTRACT SUM

Subject to additions and deductions by Change Order, the OWNER shall pay CONTRACTOR, in
accordance with the Contract Documents, the Contract Sum of:

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One Million Four Hundred Fifty-Five Thousand Six Hundred Ninety-Four & 00/100 Dollars
($1,455,694.00)

The Contract Sum shall include all items and services necessary for the proper execution and

completion of the Work.

ARTICLE 5 - 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, CONTRACTORs, or SUBCONTRACTORs. 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, CONTRACTORs, or SUBCONTRACTORs. The parties also agree _ that
CONTRACTOR is not an OWNER employee and that there shall be no:

1. Withholding of income taxes by the City:

2. Industrial insurance coverage provided by the City;

3. Participation in group insurance plans which may be available to employees of the City;

4, Participation or contributions by cither the independent CONTRACTOR or the OWNER to
the public employee’s retirement system;

5. Accumulation of vacation leave or sick leave provided by the City;

6. Unemployment compensation coverage provided by the City.

CONTRACTOR will provide the OWNER with certificates of insurance for coverage as listed below
and endorsements affecting coverage required by the contract within ten calendar days after the
OWNER issues the Notice of Award. The OWNER requires thirty days written notice of
cancellation or material change in coverage. The certificates and endorsements for each insurance
policy must be signed by a person authorized by the insurer and who is licensed by the State of New
Hampshire. General Liability and Auto Liability policies must name the OWNER as an
additional insured and reflect on the certificate of insurance. CONTRACTOR is responsible for
filing updated certificates of insurance with the OWNER's Risk Management Department during the
life of the contract.

» All deductibles and self-insured retentions shall be fully disclosed in the certificate(s) of
insurance.

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» If aggregate limits of less than $2,000,000 are imposed on bodily injury and property damage,
CONTRACTOR must maintain umbrella liability insurance of at least $1,000,000. All
aggregates must be fully disclosed on the required certificate of insurance.

» The specified insurance requirements do not relieve CONTRACTOR of its responsibilities or
limit the amount of its liability to the OWNER or other persons, and CONTRACTOR is
encouraged to purchase such additional insurance, as it deems necessary.

» The insurance provided herein is primary, and no insurance held or owned by the OWNER
shall be called upon to contribute to a loss.

» CONTRACTOR is responsible for and required to remedy all damage or loss to any property,
including property of the City, caused in whole or part by CONTRACTOR or anyone
employed, directed, or supervised by CONTRACTOR.

Regardless of any coverage provided by any insurance, CONTRACTOR agrees to indemnify and
shall defend and hold harmless the City, its agents, officials, employees and authorized
representatives and their employees from and against any and all suits, causes of action, legal or
administrative proceedings, arbitrations, claims, demands, damages, liabilities, interest, attorney’s
fees, costs and expenses of any kind or nature in any manner caused, occasioned, or contributed to
in whole or in part by reason of any negligent act, omission, or fault or willful misconduct,
whether active or passive, of CONTRACTOR or of anyone acting under its direction or control or
on its behalf in connection with or incidental to the performance of this contract.
CONTRACTOR’s indemnity, defense and hold harmless obligations, or portions thereof, shall
not apply to liability caused by the sole negligence or willful misconduct of the party indemnified
or held harmless.

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General Terms and Conditions

ARTICLE 6 — GENERAL PROVISIONS

1,

The Contract represents the entire and integrated agreement between the parties and
supersedes prior negotiations, representations or agreements, cither written or oral. The
Contract may be amended or modified only by a written modification.

The term “Work” means the construction and services required by the Contract Documents,
and include all other labor, materials, equipment and services provided by the
CONTRACTOR to fulfill the CONTRACTOR’s obligations.

The intent of the Contract Documents is to include all items necessary for the proper
execution and completion of the Work by the CONTRACTOR. The Contract Documents are
complementary, and what is required by one shall be as binding as if required by all.

In the case of a discrepancy, calculated dimensions will govern over scaled dimensions,
Contract Drawings will govern over Standard Specifications, and Technical Specifications
will govern over both Contract Drawings and Standard Specifications. In the case of a
discrepancy between the Agreement and other Contract Documents, the more specific or
stringent obligation or requirement to the benefit of the OWNER shall take precedence.

The CONTRACTOR shall take no advantage of any apparent error or omission in the
Contract Drawings or Technical Specifications, and the Engineer will be permitted to make
such corrections and interpretations as may be deemed necessary to fulfill the intent of the
Contract Documents.

ARTICLE 7 —- OWNER

1.

Except for permits and fees, which are the responsibility of the CONTRACTOR under the
Contract Documents, the OWNER shall obtain and pay for other necessary approvals,
easements, assessments and charges.

If the CONTRACTOR fails to correct Work that is not in accordance with the Contract
Documents, the OWNER may direct the CONTRACTOR in writing to stop the Work until the
correction is made.

If the CONTRACTOR defaults or neglects to carry out the Work in accordance with the
Contract Documents and fails within a seven day period after receipt of written notice from
the OWNER to correct such default or neglect with diligence and promptness, the OWNER
may, without prejudice to other remedies, correct such deficiencies. In such case, a Change
Order shall be issued deducting the cost of correction from payments due the
CONTRACTOR.

The OWNER reserves the right to perform construction or operations related to the project
with the OWNER’s own forces, and to award separate contracts in connection with other
portions of the project.

The CONTRACTOR shall coordinate and cooperate with separate CONTRACTORs
employed by the OWNER.

Costs caused by delays or by improperly timed activities or defective construction shall be
borne by the responsible party.

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ARTICLE 8 - CONTRACTOR

I.

10.

11.

12.

13.

Execution of the Contract by the CONTRACTOR is a representation that the CONTRACTOR
has visited the site, become familiar with local conditions under which the Work is to be
performed and correlated personal observations with requirements of the Contract Documents.
The CONTRACTOR shall carefully study and compare the Contract Documents with each
other and with information furnished by the OWNER. Before commencing activities, the
CONTRACTOR shall: (1) take field measurements and verify field conditions; (2) carefully
compare this and other information known to the CONTRACTOR with the Contract
Documents; and (3) promptly report errors, inconsistencies or omissions discovered to the
OWNER.

Within ten (10) days of notification of award, and prior to commencement of work, the
CONTRACTOR shall obtain and forward to OWNER a Performance Bond and a Payment
Bond representing 100% of the contract work

The CONTRACTOR shall supervise and direct the Work, using the CONTRACTOR’s best
skill and attention. The CONTRACTOR shall be solely responsible for and have control over
construction means, methods, techniques, sequences and procedures, and for coordinating all
portions of the Work.

The CONTRACTOR, as soon as practicable after award of the Contract, shall furnish in
writing to the OWNER the names of SUBCONTRACTORs or suppliers for each portion of
the Work. The OWNER will promptly reply to the CONTRACTOR in writing if, after due
investigation, he has reasonable objection to the SUBCONTRACTORs or suppliers listed.
Unless otherwise provided in the Contract Documents, the CONTRACTOR shall provide and
pay for labor, materials, equipment, tools, utilities, transportation, and other facilities and
services necessary for proper execution and completion of the work.

The CONTRACTOR shall deliver, handle, store and install materials in accordance with
manufacturers’ instructions.

The CONTRACTOR warrants to the OWNER that (1) materials and equipment furnished
under the contract will be new and of good quality unless otherwise required or permitted by
the Contract Documents; (2) the Work will be free from defects not inherent in the quality
required or permitted; and (3) the Work will conform to the requirements of the Contract
Documents.

The CONTRACTOR shall pay sales, consumer, use and similar taxes that are legally required
when the Contract is executed.

The CONTRACTOR shall obtain and pay for the building permit and other permits and
governmental fees, licenses and inspections necessary for proper execution and completion of
the Work.

The CONTRACTOR shall comply with and give notices required by agencies having
Jurisdiction over the Work. If the CONTRACTOR performs Work knowing it to be contrary
to laws, statutes, ordinances building codes, and rules and regulations without notice to the
OWNER, the CONTRACTOR shall assume full responsibility for such Work and shall bear
the attributable costs. The CONTRACTOR shall promptly notify the OWNER in writing of
any known inconsistencies in the Contract Documents with such governmental laws, rules and
regulations.

The CONTRACTOR shall promptly review, approve in writing and submit Shop Drawings,
Product Data, Samples and similar submittals required by the Contract Documents. Shop
Drawings, Product Data, Samples and similar submittals are not Contract Documents.

The CONTRACTOR shall confine operations at the site to areas permitted by law,
ordinances, permits, the Contract Documents and the OWNER.

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14. The CONTRACTOR shall be responsible for cutting, fitting or patching required to complete

the Work or to make its parts fit together properly.

15, The CONTRACTOR shall keep the premises and surrounding area free from accumulation of

debris and trash related to the Work.

16. CONTRACTOR warrants and guarantees to OWNER, for I(one) year, upon completion of

work, that all Work will be in accordance with the Contract Documents and will not be

defective. CONTRACTOR’s warranty and guarantee hereunder excludes defects or damage

caused by:

> Abuse, modification, or improper maintenance or operation by persons other than
CONTRACTOR, SUBCONTRACTORs, Suppliers, or any other individual or entity
for whom CONTRACTOR is responsible; or

> Normal wear and tear under normal usage.

ARTICLE 9 — CHANGES IN THE WORK

1,

After execution of the Contract, changes in the Work may be accomplished by Change Order
or by order for a minor change in the Work. The OWNER, without invalidating the Contract,
may order changes in the Work within the general scope of the Contract consisting of
additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted
accordingly.

A Change Order shall be a written order to the CONTRACTOR signed by the OWNER to
change the Work, Contract Sum or Contract Time.

Change Order requests must include material and equipment cost plus labor with a profit
margin of no more than 10%. Change Orders may require approval by the OWNER Finance
Committee vote prior to proceeding.

The OWNER will have authority to order minor changes in the Work not involving changes
in the Contract Sum or the Contract Time and not inconsistent with the intent of the Contract
Documents. Such changes shall be written orders and shall be binding on the OWNER and
CONTRACTOR. The CONTRACTOR shall carry out such written orders promptly.

If concealed or unknown physical conditions are encountered at the site that differ materially
from those indicated in the Contract Documents or from those conditions ordinarily found to
exist, the Contract Sum and Contract Time shall be subject to equitable adjustment following
authorization of the OWNER to the charges.

ARTICLE 10— TIME

1,
2.

Time limits stated in the Contract Documents are of the essence to the Contract.

If the CONTRACTOR is delayed at any time in progress of the Work by changes ordered in
the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or
other causes beyond the CONTRACTOR’s control, the Contract Time shall be extended by
Change Order for such reasonable time as may be determined.

ARTICLE 11 —- PAYMENTS AND COMPLETION

1.

The Contract Sum stated in the Agreement, including authorized adjustments, is the total
amount payable by the OWNER to the CONTRACTOR for performance of the Work under
the Contract Documents,

At least ten days before the date established for each progress payment, the CONTRACTOR
shall submit an itemized Application for Payment for operations completed in accordance

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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:

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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.

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