Search

General Terms and. Conditions

ARTICLE 5 —- GENERAL PROVISIONS

1.

The Contract represents the entire and integrated agreement between the parties and
supersedes prior negotiations, representations or agreements, either 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 6 —- OWNER

I.

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.

Page 4 of 12

ARTICLE 7— CONTRACTOR

1.

10.

11.

i2.

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.

Page 5 of 12

13.

14.

15.

16.

The CONTRACTOR shall confine operations at the site to areas permitted by law,

ordinances, permits, the Contract Documents and the OWNER.

The CONTRACTOR shall be responsible for cutting, fitting or patching required

completing the Work or to make its parts fit together properly.

The CONTRACTOR shall keep the premises and surrounding area free from

accumulation of debris and trash related to the Work.

CONTRACTOR warrants and guarantees to OWNER, for one (1) 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 8 — 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 Board of
Public Works and the OWNER’s 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 9 — TIME

1.

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.

Page 6 of 12

10.

11.

12.

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 directly to:

City of Nashua

Accounts Payable

PO Box 2019

Nashua, NH 03061-2019
Attn: Sonia Shahnaj, P.E.

To facilitate the proper and timely payment of applications, the OWNER requires that
all applications 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 of 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.

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.

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.

Page 7 of 12

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 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

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.

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

Page 8 of 12

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 mn 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.

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.

Page 9 of 12

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

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.

No

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, subcontractors, sub consultants,
vendors, or suppliers are expressly recognized to be within CONTRACTOR's conirol.

Page 10 of 12

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.

3. 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.

Page 11 of 12

IN WITNESS WHERECF, the parties hereto have caused this contract to be signed and intend to be
legally bound thereby.

City of Nashua, NH (signature) Morin’s Landscaping, Inc. (signature)

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

Date Date

Page 12 of 12

Board of Aldermen Page 29
September 27, 2016

Alderman Cookson
Well that’s implying isn’t it?

Alderman Siegel

Come on, point of order. That’s almost a violation of the code of conduct.

President McCarthy

Alderman Clemons, please refrain from remarks of that type.
Alderman Clemons

Why, because | stated...

President McCarthy

Because it implies...
Alderman Clemons
No, | didn’t imply anything.

President McCarthy

It implies that this Board is the reason why it was done by proclamation and if you want to say that then
say it and explain why but don’t leave things to inference.

Alderman Moriarty

So adhering to the code of conduct | am not going to infer or guess what people’s vote are but | would
like everybody in the room to ask yourself what has motivated you to come here, what is it really that you
want, that you are trying to express? Are you trying to express that we are a Welcoming City. When |
take time out of my day to go and visit the Ethnic Awareness Committee and do an investigation, there is
a reason why | am doing that. | am in support of the idea of Nashua being a Welcoming City and there is
a reason | want to do that. | like “Live Free or Die” in New Hampshire. | like the fact that we are a free
state. | support liberty and | support people who come together and create an alliance. | like how we are
a Welcoming City and | think all of this makes America great but | am not, as an elected official, going to
get on board with endorsing the political organizations that call themselves those things that | just called.
So my motivation to support this piece of legislation as it came out of the committee | think is the exact
same motivation as to why you are all here and is why we would get a unanimous vote. |’m telling you
now that my motivation for why | am not going to vote for this is because it supports an organization that
is unnecessary to be attached to this document which | have issues with.

Alderman Dowd

Two points, one is that | haven’t heard anyone say that any city or organization has had any negative
action because of being part of this Welcoming City. I’ve heard tax things but that can be said for a
number of organizations. Are there any organizations that have any negative implications from being
part of this initiative? Number two, whether this went back to the committee 16 times, | don’t see
anyone’s opinion changing and if it came back to the full Board then | still don’t see anybody’s opinion
changing so | still think we should take a vote and if it passes it passes and if doesn’t it doesn't.