Search

ARTICLE 16 — TERMINATION OF THE CONTRACT

1. Termination, Abandonment, Or Suspension At Will. The OWNER, in its sole discretion,
shall have the right to terminate, abandon, or suspend all or part of the project and contract at
will. If the OWNER chooses to terminate, abandon, or suspend all or part of the project, it
shall provide CONTRACTOR 10 day’s written notice of its intent to do so.

If all or part of the project is suspended for more than 90 days, the suspension shall be treated as a
termination at will of all or that part of the project and contract.

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

a. Immediately discontinue work on the date and to the extent specified in the notice.
b. Provide the OWNER with a list of all unperformed services.
C. Place no further orders or sub-contracts for materials, services, or facilities, other than

as may be necessary or required for completion of such portion of work under the
contract that is not terminated.

d. Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the OWNER of all orders or sub contracts to the extent they relate to the
performance of work terminated, abandoned, or suspended under the notice, assign to
the OWNER any orders or sub contracts specified in the notice, and revoke
agreements specified in the notice.

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

In the event of a termination, abandonment, or suspension at will, CONTRACTOR shall receive all
amounts due and not previously paid to CONTRACTOR for work satisfactorily completed in
accordance with the contract prior to the date of the notice and compensation for work thereafter
completed as specified in the notice, No amount shall be allowed or paid for anticipated profit on
unperformed services or other unperformed work.

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

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

a. Immediately discontinue work on the date and to the extent specified in the notice.
b. Provide the OWNER with a list of all unperformed services.
C. Place no further orders or sub-contracts for materials, services, or facilities, other than

as may be necessary or required for completion of such portion of work under the
contract that is not terminated.

AG-10

d. Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the OWNER of all orders or sub contracts to the extent they relate to the
performance of work terminated, abandoned, or suspended under the notice, assign to
the OWNER any orders or sub contracts specified in the notice, and revoke
agreements specified in the notice.

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

In the event of a termination for cause, CONTRACTOR shall receive all amounts due and not
previously paid to CONTRACTOR for work satisfactorily completed in accordance with the contract
prior to the date of the notice, less all previous payments. No amount shall be allowed or paid for
anticipated profit on unperformed services or other unperformed work. Any such payment may be
adjusted to the extent of any additional costs occasioned to the OWNER by reasons of
CONTRACTOR’s failure. CONTRACTOR shall not be relieved of liability to the OWNER for
damages sustained from the failure, and the OWNER may withhold any payment to the
CONTRACTOR until such time as the exact amount of damages due to the OWNER is determined,
All claims for payment by the CONTRACTOR must be submitted to the OWNER within 30 days of
the effective date of the notice of termination.

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

General Provisions for Termination. Upon termination of the contract, the OWNER may take over
the work and prosecute it to completion by agreement with another party or otherwise. Upon
termination of the contract or in the event CONTRACTOR shall cease conducting business, the
OWNER shall have the right to solicit applications for employment from any employee of the
CONTRACTOR assigned to the performance of the contract. Neither party shall be considered in
default of the performance of such obligations is prevented or delayed by any cause, existing or
future, which is beyond the reasonable control of such party. Delays arising from the actions or
inactions of one or more of CONTRACTOR's principals, officers, employees, agents, sub-
contractors, sub consultants, vendors, or suppliers are expressly recognized to be within
CONTRACTOR's control.

ARTICLE 17— CHOICE OF LAW AND VENUE

This contract shall be governed exclusively by the laws of the State of New Hampshire and any claim
or action brought relating to this contract, the work performed or contracted to be performed
thereunder, or referable in anyway thereto shall be brought in Hillsborough County (New Hampshire)
Superior Court Southern Judicial District or in the New Hampshire 9th Circuit Court—Nashua and
not elsewhere.

AG-11

ENGINEERING DESIGN PHASE CONTRACT Page 3 of 6
For Professional Services for Treatment Works

IV.

COM PENSATION TO BE PAID THE ENGINEER

A. Method of Payments Amounts of Fees

1.

Payment to the ENGINEER, for services rendered, shall be according to the following schedule:

Monthly billing based on hours and rates by labor category with mark-up and incidental expenses in accordance
with the attached Exhibit B— Fee Schedule.

The OWNER agrees to pay and the ENGINEER agrees to accept for all services under, Exhibit A, Digester Heat
Exchanger and Stair Tower Fan Upgrade of this AGREEMENT, a fee not to exceed Forty Thousand Nine Hundred
and _00/ 100 Dollars ($40,900.00).

If separate documents are required for additional construction contracts on this PROJECT, an additional fee as
approved by the DIVISON shall be paid to the ENGINEER

Prior to formal approval of contract documents by the DIVISION, the ENGINEER shall make such revisions in
them as recommended by the DIVISION and agreed to by the ENGINEER without additional compensation. After
formal approval, if it becomes necessary to revise the contract documents for reasons beyond the control of the
ENGINEER payment for such revision or revisions shall be made to the ENGINEER subject to approval by the
DIVISON.

B. Limits of All Payments

1.

The ENGINEER hereby assures the OWNER and agrees that the following fee for his services (exclusive of
surveys, borings, and certain special services which follow) in connection with the preparation of final plans,
specifications, and contract documents and other work as generally described under I(A) is adequate to
complete the assignment and shall not exceed Forty Thousand Nine Hundred and 00/100 Dollars ($40,900.00).

Rev.2020-09

ARTICLE 18—- MISCELLANEOUS PROVISIONS

1.

2.

2

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

Tests, inspections and approvals of portions of the Work required by the Contract Documents
or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction
shall be made at an appropriate time.

If additional testing is required, the CONTRACTOR shall perform these tests.

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

OWNER (signature) CONTRACTOR (signature)

James Donchess, Mayor

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

Date

Date

AG-12

REPORT OF THE FINANCE COMMITTEE
MAY 3, 2016

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

Mayor Jim Donchess, Chair, presided.

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

Members not in Attendance: Alderman Benjamin M. Clemons

Also in Attendance: Mr. Dan Kooken, Purchasing Manager

PUBLIC COMMENT - None
COMMUNICATIONS

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

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

ON THE QUESTION

Alderman Cookson

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

Mayor Donchess

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

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

Mayor Donchess

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

Alderman Cookson

So they were contributing what, $165,000?

Finance Committee Page 2
May 3, 2016

Mayor Donchess

Yes, | think so.

Alderman Cookson

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

Correct.

Alderman Cookson

What we had expected the difference to be?

Mayor Donchess

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

Alderman Cookson

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

Alderman Siegel

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

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

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

So that was a $20,000 item?

Mayor Donchess

| think it was $12,000.

MOTION CARRIED

Mayor Donchess

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

Finance Committee Page 3
May 3, 2016

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

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

ON THE QUESTION
Alderman Siegel

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

Mayor Donchess

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

Alderman Siegel

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

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

Alderman O’Brien

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

Mayor Donchess

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

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

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

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

MOTION CARRIED

Finance Committee Page 4
May 3, 2016

UNFINISHED BUSINESS — None
NEW BUSINESS — None
RECORD OF EXPENDITURES

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

ON THE QUESTION

Alderman Siegel

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

Mr. Kooken

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

Alderman Siegel

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

Alderman O’Brien

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

Alderman Siegel

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

Mayor Donchess

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

MOTION CARRIED

Finance Committee Page 5
May 3, 2016

PUBLIC COMMENT - None

POSSIBLE NON-PUBLIC SESSION

ADJOURNMENT

MOTION BY ALDERMAN WILSHIRE TO ADJOURN
MOTION CARRIED

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

Alderman Ken Siegel
Committee Clerk

FINANCE COMMITTEE
MAY 3, 2016

6:00 PM Aldermanic Chamber

ROLL CALL

PUBLIC COMMENT

COMMUNICATIONS

From: Dan Kooken, Purchasing Manager

Re: Contract Award Legacy Playground at Labine Park (Value: $233,803)
Department: 177 Parks and Recreation; Funds: Contribution, Prior Year Escrows,
Trust and General: Activity: Labine Park

From: Dan Kooken, Purchasing Manager

Re: — LED Street Light Conversion Project (Value: $1,455,694)
Department: 161 Street; Fund: Bond; Activity: LED Lighting

UNFINISHED BUSINESS — None

NEW BUSINESS - None

DISCUSSION

RECORD OF EXPENDITURES

PUBLIC COMMENT
NON-PUBLIC SESSION

ADJOURNMENT