FINANCE COMMITTEE DECEMBER 4, 2019 7:00 pm Aldermanic Chamber
ROLL CALL
PUBLIC COMMENT
COMMUNICATIONS
From: Camille Pattison, Transportation Manager Re: Finance Committee - Change Order for 1 Front Runner Van
From: Dan Kooken, Purchasing Manager Re: Contract for Tree Removal Services in Nashua Downtown Riverfront (Value $200,000), Department: 183 Economic Development; Fund: Riverfront Promenade TIF
From: Dan Kooken, Purchasing Manager Re: Contract for Construction Management Services for Public Health Renovation Project (Value: $17,000), Department: 183 Economic Development; Fund: Bond
From: Dan Kooken Purchasing Manager Re: Contract for Design and Project Management of Nashua Downtown Riverfront Implementation (Value: $437,653), Department: 183 Economic Development; Fund: Riverfront Promenade TIF
From: Dan Kooken, Purchasing Manager Re: Contract for Wet Weather Influent Screening Upgrade - Construction Engineering Services (Value: $148,800), Department: 169 Wastewater; Fund: Wastewater
From: Dan Kooken, Purchasing Manager Re: Contract for Wet Weather Influent Screening Upgrade - Construction Services (Value: $1,237,677), Department: 169 Wastewater; Fund: Wastewater
UNFINISHED BUSINESS - None
NEW BUSINESS - RESOLUTIONS - None
RECORD OF EXPENDITURES
GENERAL DISCUSSION
PUBLIC COMMENT
REMARKS BY THE ALDERMEN
NON-PUBLIC SESSION
ADJOURNMENT Community Development 589-3095 City of Nashua Planning and Zoning 589-3090 Building Safety 589-3080 Community Development Division Code Enforcement 589-3100 Urban Programs 589-3085 City Hall, 229 Main Street, PO Box 2019 Conservation Commission 589-3105 Nashua, New Hampshire 03061-2019 Transportation 880-0100 www.aashuanh.gov FAX 589-3119
Date: November 11, 2019
To: Jim Donchess, Mayor
From: Camille Pattison, Transportation Manager
Re: Finance Committee - Change Order for 1 Front Runner Van
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 City entered into a contract with New England Wheels on September 19, 2019 for the following amounts:
1 Front Runner Van for a total of $123,894
In October, the City of Nashua and NE Wheels had a pre-production review of the bus build and a number of items were added or removed to enhance the safety and functionality of the new bus.
The changes resulted in a credit of $1,305 for the one van, and include the following:
Side facing seats and arm rests will replace 2 standard passenger seats. Selection of alternative seat fabric and addition of seat pillow tops. Addition of wheelchair retractable tie downs, lap and shoulder belt. Addition of modesty panels and rear storage rack. Rear bumper selection changed to a less expensive option. Removal of front exterior cross over mirror. Removal of rain gutter as one is built into the rooftop.
Original Cost Reduction in Cost Revised Cost $123,894 $1,305 $122,589 City of Nashua Prebuild Meeting October 29, 2019 Requested Addition / Deletions Price as Quoted w/all Options $ 123,894.00
Additions: 2 Side Facing Freedman Bantam Seats $ 365.00 $ 730.00 Arm Rest for Bantam Seats (side fadnq) $ 44.00 $ 176.00 Level 4 Fabric / Vinyl of color - add per person (Morben Wave Free Style $ 35.00 $ 280.00 Blue 004) Pillow Top for Go-ES Seats 33.00 $ 198.00
Q'Straint Slide-N-Click Retractable Tie 435.00 $ 435.00 Downs For 3rd W/C Pos.
Q'Stratint Lap and Shoulder Belt For 95.00 $ 95.00 3rd W/C Pos. Modesty Panels $ 85.00 $ 170.00
2 Tier Storage Rack Mount Rear $ 475.00 $ 475.00 Street Side
Total Additions: 2,559.00 $ 2,559.00
Deletions:
1 (2) Passenger 3PT Go-ES Rigid Seats $ (460.00) $ (460.00) Level 5 Fabric / Repel - Gem Blue 8 S (42.00) $ (336.00) Back/seat, Solid Blue back / sides 1 Transpec Rear Bumper $ (780.00) $ (780.00)
1 Exterior Front Cross Over Mirror $ (175.00) $ (175.00)
1 Rain Gutter $ (235.00) $ (235.00) Total Deletions: $ (1,986.00) $ (1,986.00)
Net After Adjustments $ 124,467.00 Fare Box $ (1,878.00) $ (1,878.00) Revised Price After Adjustments and Farebox Deletion 122,589.00
NOTES: 1) Driver Storage Box included in original pricing-See attached photo of recommended solution 2) Slide-N-Clic storage brackets included in original pricing CHANGE ORDER
No. 1
PROJECT NAME: TRANSIT -1 - 8 Passenger Front Runner Van from New England Wheels
OWNER'S CONTRACT NO:_
EXECUTED CONTRACT DATE: September 19, 2019
OWNER: City of Nashua, NH
OWNER'S Purchase Order NO.: PO 153288
CONTRACTOR: New England Wheels Inc.
ENGINEER; NA
You are directed to make the following changes in the Contract Documents:
Description:
In August, the Nashua Transit System (NTS) was awarded $110,000 dollars in 5310 funds from the State of NH to purchase \ Low Floor Cutaway Van.
The City entered into a contract with New England Wheels on September!9,2019 for the following amounts:
1 Front Runner Van for a total of $123,894
Rhe City of Nashua and NE Wheels had a pre-production review of the bus build and a number of items were added or removed to enhance the safety and functionality of the new bus.
The changes resulted in a credit of SI,305 for the one van, and include the following:
• Side facing seats and arm rests replace 2 standard passenger seats. • Selection of alternative seat fabric and additional of seat pillow tops. • Addition of wheelchair retractable tie downs, lap and shoulder belt. • AdditionofModestypanelsand rear storage rack. • Rear bumper selection changed to a less expensive option, • Removal of front exterior cross over mirror. ® Removal of rain gutter as one is built into the rooftop.
Original Cost Reduction in Cost I Revised Cost $123,894 $1,305 $122,589
Justification: Additional items were added to enhance the safety and functionality of the new fleet.
Change Order #î 1 of2 NE Wheels Front Runner Van Summary
CHANGE IN CONTRACT PRICE: CHANGE IN CONTRACT TIMES: Original Contract Price Original Contract Times
$123,894 Substantial completion: Ready for final payment:
Net changes from previous Change Orders Net change from previous Change Orders
$0.00
Contract Price prior to this Change Order Contract Times prior to this Change Order
$123,894 Substantial completion: Ready for final payment:
Net Increase or Decrease of this Change Order Net Increase (decrease) of this Change Order
($1,305) credit
Contract Price with all approved Change Orders Contract Times with all approved Change Orders
$122,589 Substantial completion: Ready for final payment:
RECOMMENDED: ACCMED: APPROVED:
By: By: Sarah Marchant, Director NE WHeeis Mayor Jim Donchess (Authorized Signature) ^Xiliithorized Signature) Owner nag (Authorized Signature) Date: Date: itJlApfff Date:
Change Order #1 2 of 2 NE Wheels Front Runner Van THE CITY OF NASHUA 'The Gate City' Financial Services Purchasing Department
November 28, 2019 Memo #20-061
TO: MAYOR DONCHESS FINANCE COMMITTEE
SUBJECT: CONTRACT FOR TREE REMOVAL SERVICES IN NASHUA DOWNTOWN RIVERFRONT (VALUE: $200,000) DEPARTMENT:!83 ECONOMIC DEVELOPMENT; FUND: RIVERFRONT PROMENADE TIF
Please see attached communication from Tim Cummings, Director of Economic Development dated November 21, 2019 for the information related to this purchase.
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 Director of Economic Development and the Purchasing Department recommend award of this contract in an amount of $200,000 to Accurate Tree Removal Service of Hooksett, NH.
Dan Kooken Purchasing Manager
Ce: T Cummings J Graziano
229 Main Street • Nashua, New Hampshire 03061 • Phone (603) 589-3330 ® Fax (603) 589-3233 j THE CITY OF NASHUA "The Gate City'
Economic Development
To: James Donchess, Mayor From: T. Cummings, Economic Development Director Ce: S. Marchant, Director of Community Development
Date: November 21, 2019
Re: Contract for Tree Removal Services in the Nashua Downtown Riverfront
The Office of Economic Development in partnership with the Community Development Division issued IFB0980-091619 this past summer. Specifically, the services sought assistance in the removal and trimming of trees along the Nashua Riverfront.
The City received four proposals after a site walk with approximately ten tree companies in attendance during the procurement process. An evaluation occurred by the TIF Committee based on qualifications/experience, past performance and sendee on similar projects, proposed approach to scope of work along with cost. After doing reference checks Accurate Tree Removal Service was selected as the proposed vendor.
The contract will be paid through the TIF account established last year, which has approximately $750,000. This is the first step in implementing the Nashua Riverfront Development Master Plan. As a reminder there will a couple of large expenditures before you as we begin to implement the Nashua said Plan and improve the riverfront area of the downtown.
I am recommending awarding a contract for tree removal and trimming services for the amount not to exceed $200,000 to Accurate Tree Removal.
Thank you. CONTRACT FOR PROFESSIONAL SERVICES
IFB0980-091619
NASHUA RIVERFRONT TREE REMOVAL PROJECT
A CONTRACT BETWEEN
THE CITY OF NASHUA, 229 MAIN STREET, NASHUA, NH 03061-2019
AND
ACCURATE TREE SERVICE NAME AND TITLE OF SERVICE PROVIDER
150 LONDONDERRY TURNPIKE, HOOKSETT, NH 03106 ADDRESS OF SERVICE PROVIDER
WHEREAS, the City of Nashua, apolitical subdivision of the State of New Hampshire, from time to time requires the services of a Service Provider ; and
WHEREAS, it is deemed that the services of a Service Provider herein specified are both necessary and desirable and in the best interests of the City of Nashua; and
WHEREAS, Service Provider represents they are duly qualified, equipped, staffed, ready, willing and able to perform and render the services hereinafter described;
Now, THEREFORE, in consideration of the agreements herein made, the parties mutually agree as follows:
1. DOCUMENTS INCORPORATED. The following exhibits are by this reference incorporated herein and are made part of this contract:
Exhibit A- General Conditions for Contracts Exhibit B - Scope of Work Dated October 22, 2019 Exhibit C - IFB0980-0916 Nashua Riverfront Tree Removal Project
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.
2. WORK TO BE PERFORMED Except as otherwise provided in this contract, Service Provider shall furnish all services, equipment, and materials and shall perform all operations necessary and required to carry out and perform in accordance with the terms and conditions of the contract the
AG 1 of 3 work described.
3. PERIOD OF PERFORMANCE. Service Provider shall perform and complete all work with final plans, [TBDJ.. The time periods set forth 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. Service Provider shall begin performance upon receipt of the signed contract.
4. COMPENSATION. Service Provider agrees to perform the work for a total cost not to exceed
($200.000.00)
Unless Service Provider has received a written exemption from the City, Service Provider shall submit requests for payment for services performed under this agreement directly to
City of Nashua Attn: Accounts Payable PO Box 2019 Nashua, NH 03061-2019
To facilitate the proper and timely payment of applications, the City of Nashua requires that all invoices contain a valid PURCHASE ORDER NUMBER.
Requests for payment shall be submitted no later than fifteen (15) days after the end of each month and must include a detailed summary of the expenditures reported in a form that supports the approved budget. Specifically, Service Provider agrees to provide the following with each request for payment:
1. Appropriate invoice forms. The forms shall include the project purchase order number, a listing of personnel hours and billing rates, and other expenditures for which payment is sought.
2. A progress report. The report shall include, for each monthly reporting period, a description of the work accomplished, problems experienced, upcoming work, any extra work carried out, and a schedule showing actual expenditures billed for the period, cumulative total expenditures billed and paid to date under the contract, and a comparison of cumulative total expenditures billed and paid to the approved budget.
The City will pay for work satisfactorily completed by Service Provider. The City will pay Service Provider within 30 days of approval by the City of the submitted invoice forms and progress reports. The City will make no payments until the invoice forms and progress reports have been submitted and approved.
5. EFFECTIVE DATE OF CONTRACT. This contract shall not become effective until and unless approved by the City of Nashua.
6. NOTICES. All notices, requests, or approvals required or permitted to be given under this contract shall be in writing, shall be sent by hand delivery, overnight earner, or by United States mail, postage prepaid, and registered or certified, and shall be addressed to:
AG 2 of 3 CITY REPRESENTATIVE: REPRESENTATIVE:
Tim Cummings David Burl Director of Economic Development Owner Office of Economic Development Accurate Tree Service 229 Main Street 150 Londonderry Turnpike Nashua, NH 03060 Hooksett, NH 03106
Any notice required or permitted under this contract, if sent by United States mail, shall be deemed to be given to and received by the addressee thereof on the third business day after being deposited in the mail. The City or Service Provider may change the address or representative by giving written notice to the other party.
IN WITNESS WHEREOF, the parties hereto have caused this contract to be signed and intend to be legally bound thereby.
City of Nashua, NH (signature) Accurate Tree Service (signature)
Jim Donchess, Mayor David BurL Owner (Printed Name and Title) (Printed Name and Title)
Date Date
AG 3 of 3 EXHIBIT A TABLE OF CONTENTS GENERAL CONDITIONS
1. DEFINITIONS GC- -3
2. SERVICE PROVIDER STATUS AND PROVISION OF WORKERS' COMPENSATION COVERAGE GC- -3
3. STANDARD OF CARE GC- -4
4. CITY REPRESENTATIVE GC- -4
5. CHANGES TO SCOPE OF WORK GC- -4
6. CITY COOPERATION GC- -5
7. DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES GC- -5
8. TERMINATION OF CONTRACT GC- -5
9. DISPUTE RESOLUTION GC- -7
10. No DAMAGES FOR DELAY GC- -7
11. INSURANCE GC- -7
12. INDEMNIFICATION GC- -8
13. FISCAL CONTINGENCY GC- -8
14. COMPENSATION GC- -8
15. COMPLIANCE WITH APPLICABLE LAWS GC- -8
16. N ONDISCRIMINATION GC- -9
17. FEDERAL SUBCONTRACTING REQUIREMENTS GC- -9
18. ENDORSEMENT GC- -10
19. ASSIGNMENTS, TRANSFER, DELEGATION, OR SUBCONTRACTING GC- -10
20. CITY INSPECTION OF CONTRACT MATERIALS GC- -10
21. DISPOSITION OF CONTRACT MATERIALS GC- -10
22. PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS GC- -10
23. FINAL ACCEPTANCE GC- -11
24. TAXES GC- -11
25. NON-WAIVER OF TERMS AND CONDITIONS GC- -11
26. RIGHTS AND REMEDIES GC- -11
27. PROHIBITED INTERESTS GC- -11
28. THIRD PARTY INTERESTS AND LIABILITIES GC--12
GC 1 of 13 29. SURVIVAL OF RIGHTS AND OBLIGATIONS GC-12
30. SEVERABILITY GC--12
31. MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT GC--12
32. CHOICE OF LAW AND VENUE GC-13
GC 2 of 13 GENERAL CONDITIONS
1. DEFINITIONS. Unless otherwise required by the context, "Service Provider" includes any of the Service Provider's consultants, sub consultants, contractors, and subcontractors
2. SERVICE PROVIDER STATUS AND PROVISION OF WORKERS5 COMPENSATION COVERAGE. The parties agree that Service Provider shall have the status of and shall perform all work under this contract as a Service Provider, maintaining control over all its consultants, sub consultants, contractors, or subcontractors. The only contractual relationship created by this contract is between the City and Service Provider, and nothing in this contract shall create any contractual relationship between the City and Service Provider's consultants, sub consultants, contractors, or subcontractors. The parties also agree that Service Provider is not a City 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 either the Service Provider or the City 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.
Service Provider agrees, if applicable and before commencing any work under the contract, to complete and to provide the following written request to its insurer:
Accurate Tree Service has entered into a contract with the City of Nashua to perform work upon receipt of a Notice to Proceed to Final Completion and requests that the Insurer provide to the City of Nashua 1) a certificate of coverage, and 2) notice of any lapse in coverage or nonpayment of coverage that the Service Provider is required to maintain. The certificate and notice should be mailed to:
Risk Management City of Nashua 229 Main Street Nashua, NH 03060
Service Provider agrees, if not exempt, to maintain required workers' compensation coverage throughout the entire term of the contract. If Service Provider does not maintain coverage throughout the entire term of the contract, Service Provider agrees that City may, at any time the coverage is not maintained by Service Provider, order the Service Provider to stop work, suspend the contract, or terminate the contract. For each six-month period this contract is in effect, Service Provider agrees, prior to the expiration of the six-month period, to provide another written request to its insurer for the provision of a certificate and notice of lapse in or nonpayment of coverage, if Service Provider does not make the request or does not provide the certificate before the expiration of the six-month period, Service Provider agrees that City may order the Service Provider to stop work, suspend the contract, or terminate the contract.
3. STANDARD OF CARE. Service Provider shall be responsible for the professional quality, technical accuracy, timely completion, and coordination of all work performed under this contract.
GC3of 13 Service Provider warrants that all work shall be performed with the degree of professional skill, care, diligence, and sound practices and judgment that are normally exercised by recognized professional firms with respect to services of a similar nature. It shall be the duty of Service Provider to assure at its own expense that all work is technically sound and in conformance with all applicable federal, state, and local laws, statutes, regulations, ordinances, orders, or other requirements. In addition to all other rights which the City may have, Service Provider shall, at its own expense and without additional compensation, re-perform work to correct or revise any deficiencies, omissions, or errors in the work or the product of the work or which result from Service Provider's failure to perform in accordance with this standard of care. Any approval by the City of any products or services furnished or used by Service Provider shall not in any way relieve Service Provider of the responsibility for professional and technical accuracy and adequacy of its work. City review, approval, or acceptance of, or payment for any of Service Provider's work under this contract shall not operate as a waiver of any of the City's rights or causes of action under this contract, and Service Provider shall be and remain liable in accordance with the terms of the contract and applicable law.
Service Provider shall furnish competent and skilled personnel to perform the work under this contract. The City reserves the right to approve key personnel assigned by Service Provider to perform work under this contract. Approved key personnel shall not be taken off of the project by Service Provider without the prior written approval of the City, except in the event of termination of employment. Service Provider shall, if requested to do so by the City, remove from the job any personnel whom the City determines to be incompetent, dishonest, or uncooperative.
4. CITY REPRESENTATIVE. The City may designate a City representative for this contract. If designated, all notices, project materials, requests by Service Provider, and any other communication about the contract shall be addressed or be delivered to the City Representative.
5. CHANGES TO SCOPE OF WORK. The City may, at any time, by written order, make changes to the general scope, character, or cost of this contract and in the services or work to be performed, either increasing or decreasing the scope, character, or cost of Service Provider's performance under the contract. Service Provider shall provide to the City within 10 calendar days, a written proposal for accomplishing the change. The proposal for a change shall provide enough detail, including personnel hours for each sub-task and cost breakdowns of tasks, for the City to be able to adequately analyze the proposal. The City will then determine in writing if Service Provider should proceed with any or all of the proposed change. If the change causes an increase or a decrease in Service Provider's cost or time required for performance of the contract as a whole, an equitable adjustment shall be made and the contract accordingly modified in writing. Any claim of Service Provider for adjustment under this clause shall be asserted in writing within 30 days of the date the City notified Service Provider of the change.
When Service Provider seeks changes, Service Provider shall, before any work commences, estimate their effect on the cost of the contract and on its schedule and notify the City in writing of the estimate. The proposal for a change shall provide enough detail, including personnel hours for each sub-task and cost breakdowns of tasks, for the City to be able to adequately analyze the proposal. The City will then determine in writing if Service Provider should proceed with any or all of the proposed change.
Except as provided in this paragraph, Service Provider shall implement no change unless the City in writing approves the change. Unless otherwise agreed to in writing, the provisions of this contract shall apply to all changes. The City may provide verbal approval of a change when the
GC4of 13 City, in its sole discretion, determines that time is critical or public health and safety are of concern. Any verbal approval shall be confirmed in writing as soon as practicable. Any change undertaken without prior City approval shall not be compensated and is, at the City's election, sufficient reason for contract termination.
6. CITY COOPERATION. The City agrees that its personnel will cooperate with Service Provider in the performance of its work under this contract and that such personnel will be available to Service Provider for consultation at reasonable times and after being given sufficient advance notice that will prevent conflict with their other responsibilities. The City also agrees to provide Service Provider with access to City records in a reasonable time and manner and to schedule items that require action by the Board of Public Works and Finance Committee in a timely manner. The City and Service Provider also agree to attend all meetings called by the City or Service Provider to discuss the work under the Contract, and that Service Provider may elect to conduct and record such meetings and shall later distribute prepared minutes of the meeting to the City.
7. DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES. Service Provider warrants that it has examined all contract documents, has brought all conflicts, errors, discrepancies, and ambiguities to the attention of the City in writing, and has concluded that the City's resolution of each matter is satisfactory to Service Provider. All future questions Service Provider may have concerning interpretation or clarification of this contract shall be submitted in writing to the City within 10 calendar days of their arising. The writing shall state clearly and in full detail the basis for Service Provider's question or position. The City representative shall render a decision within 15 calendar days. The City's decision on the matter is final. Any work affected by a conflict, error, omission, or discrepancy which has been performed by Service Provider prior to having received the City's resolution shall be at Service Provider's risk and expense. At all times, Service Provider shall carry on the work under this contract and maintain and complete work in accordance with the requirements of the contract or determination of the City. Service Provider is responsible for requesting clarification or interpretation and is solely liable for any cost or expense arising from its failure to do so.
8. TERMINATION OF CONTRACT
A. TERMINATION, ABANDONMENT, OR SUSPENSION AT WILL. 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. If the City chooses to terminate, abandon, or suspend all or part of the project, it shall provide Service Provider 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 part of the project and contract.
Upon receipt of notice of termination, abandonment, or suspension at will, Service Provider shall:
1. Immediately discontinue work on the date and to the extent specified in the notice. 2. Place no further orders or subcontracts 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. 3. Immediately make every reasonable effort to obtain cancellation upon terms satisfactory to the City of all orders or subcontracts to the extent they relate to the
GC 5 of 13 performance of work terminated, abandoned, or suspended under the notice, assign to the City any orders or subcontracts specified in the notice, and revoke agreements specified in the notice. 4. 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, Service Provider shall receive all amounts due and not previously paid to Service Provider 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.
B. TERMINATION FOR CAUSE. This agreement may be terminated by the City on 10 calendar day's written notice to Service Provider in the event of a failure by Service Provider to adhere to all the terms and conditions of the contract or for failure to satisfactorily, in the sole opinion of the City, pursue the project or to complete work in a timely and professional manner. Service Provider shall be given an opportunity for consultation with the City prior to the effective date of the termination. Service Provider may terminate the contract on 10 calendar days written notice if, through no fault of Service Provider, the City fails to pay Service Provider for 30 days after the date of approval of any submitted invoice forms and progress reports.
In the event of a termination for cause, Service Provider shall receive all amounts due and not previously paid to Service Provider 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 Service Provider's failure. Service Provider shall not be relieved of liability to the City for damages sustained from the failure, and the City may withhold any payment to the Service Provider until such time as the exact amount of damages due to the City is determined. All claims for payment by the Service Provider must be submitted to the City within 30 days of the effective date of the notice of tennination.
If after termination for the failure of Service Provider to adhere to all the terms and conditions of the contract or for failure to satisfactorily, in the sole opinion of the City, pursue the project or to complete work in a timely and professional manner, it is determined that Service Provider had not so failed, the tennination shall be deemed to have been a termination at will. In that event, the City shall make an equitable adjustment in the compensation paid to Service Provider. The adjustment shall include a reasonable profit for services or other work performed up to the effective date of termination less all previous payments.
C. 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. In the event Service Provider shall cease conducting business, the City shall have the right to solicit applications for employment from any employee of the Service Provider assigned to the performance of the contract.
Neither party shall be considered in default of the performance of its obligations hereunder to the extent that 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 Service Provider's principals, officers, employees, agents,
GC 6 of 13 subcontractors, consultants, vendors, or suppliers are expressly recognized to be within Service Provider's control.
9. DISPUTE RESOLUTION. Any dispute not within the scope of section 7 or section 8 shall be resolved under this paragraph. 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 City Representative and a Service Provider representative. At all times, Service Provider 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 City. If the dispute is not resolved within 30 days, either party may request that the dispute be submitted to the Board of Public Works for final resolution. The decision of the Board of Public Works shall be final and binding on the parties. If either party is dissatisfied with the decision of the Board of Public Works, that party may immediately terminate the contract under this paragraph, with Service Provider being entitled to compensation for work actually and satisfactorily performed up to the time of the termination and the City being entitled to all contract materials in accordance with paragraph 21, and compensation for any additional damages or expenses incurred in completing the work under the contract, including, without limitation, the costs of securing the services of other Service Providers.
10. NO DAMAGES FOR DELAY. Apart from a written extension of time, no payment, compensation, or adjustment of any kind shall be made to Service Provider for damages because of hindrances or delays in the progress of the work from any cause, and Service Provider agrees to accept in full satisfaction of such hindrances and delays any extension of time that the City may provide.
11. INSURANCE. Service Provider 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; > $ 1,000,000 Combined Single Limit Automobile Liability; ^Coverage must include all owned, non-owned and hired vehicles. »—$1,000,000 Profession Liability; > and Workers' Compensation Coverage in compliance with the State of New Hampshire statutes, $ 100,000/S500,000/$ 100,000.
Service Provider shall maintain in effect at all times during the performance under this contract all specified insurance coverage with insurers. None of the requirements as to types and limits to be maintained by Service Provider are intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by Service Provider under this contract. The City of Nashua shall not maintain any insurance on behalf of Service Provider. Subcontractors are subject to the same insurance requirements as Service Provider and it shall be the Service Provider's responsibility to ensure compliance of this requirement.
Service Provider will provide the City of Nashua with certificates of insurance for coverage as listed below and endorsements affecting coverage required by the contract within ten calendar days after the City issues the notice of award. The City of Nashua requires thirty days written
GC 7 of 13 notice of cancellation or material change in coverage. The certificates and endorsements for each insurance policy must he 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 City of Nashua as an additional insured and reflect on the certifícate of insurance. Service Provider is responsible for filing updated certificates of insurance with the City of Nashua'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. • If aggregate limits of less than $2,000,000 are imposed on bodily injury and property damage, Service Provider 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 Service Provider of its responsibilities or limit the amount of its liability to the City or other persons, and Service Provider 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 City of Nashua shall be called upon to contribute to a loss. • Service Provider 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 Service Provider or anyone employed, directed, or supervised by Sendee Provider.
12. INDEMNIFICATION Regardless of any coverage provided by any insurance, Service Provider 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 Service Provider or of anyone acting under its direction or control or on its behalf in connection with or incidental to the performance of this contract. Service Provider'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.
13. FISCAL CONTINGENCY. All payments under this contract are contingent upon the availability to the City of the necessary funds. This contract shall terminate and the City's obligations under it shall be extinguished at the end of any fiscal year in which the City fails to appropriate monies for the ensuing fiscal year sufficient for the performance of this contract.
Nothing in this contract shall be construed to provide Service Provider with a right of payment over any other entity. Any funds obligated by the City under this contract that are not paid to Service Provider shall automatically revert to the City's discretionary control upon the completion, tennination, or cancellation of the agreement. The City shall not have any obligation to re-award or to provide, in any manner, the unexpended funds to Service Provider. Service Provider shall have no claim of any sort to the unexpended funds.
14. COMPENSATION. Review by the City of Service Provider's submitted monthly invoice forms and progress reports for payment will be promptly accomplished by the City. If there is insufficient information, the City may require Service Provider to submit additional information.
GC 8 of 13 Unless the City, in its sole discretion, decides otherwise, the City shall pay Sendee Provider in full within 30 days of approval of the submitted monthly invoice forms and progress reports.
15. COMPLIANCE WITH APPLICABLE LAWS. Service Provider, at all times, shall fully and completely comply with all applicable local, state and federal laws, statutes, regulations, ordinances, orders, or requirements of any sort in carrying out the obligations of this contract, including, but not limited to, all federal, state, and local accounting procedures and requirements, all immigration and naturalization laws, and the Americans With Disabilities Act. Service Provider shall, throughout the period services are to be performed under this contract, monitor for any changes to the applicable laws, statutes, regulations, ordinances, orders, or requirements, shall promptly notify the City in writing of any changes to the same relating to or affecting this contract, and shall submit detailed documentation of any effect of the change in terms of both time and cost of performing the contract.
16. NONDISCRIMINATION. If applicable or required under any federal or state law, statute, regulation, order, or other requirement, Service Provider agrees to the following terms. Service Provider will not discriminate against any employee or applicant for employment because of physical or mental handicap in regard to any position for which the employee or applicant for employment is qualified. Service Provider agrees to take affirmative action to employ, advance in employment, or to otherwise treat qualified, handicapped individuals without discrimination based upon physical or mental handicap in all employment practices, including but not limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff, termination, rates of pay, or other forms of compensation and selection for training, including apprenticeship.
Without limitation of the foregoing, Service Provider's attention is directed to 41 C.F.R. § 60-1.4, and the clause entitled "Equal Opportunity Clause" which, by reference, is incorporated into this contract, to 41 C.F.R. § 60-250 et seq. and the clause entitled "Affirmative Action Obligations of Service Providers and Subcontractor for Disabled Veterans and Veterans of the Vietnam Era," which, by reference, is incorporated in this contract, and to 41 C.F.R. § 60-471 and the clause entitled "Affirmative Action Obligations of Service Providers and Subcontractors for Handicapped Workers," which, by this reference, is incorporated in this contract.
Service Provider agrees to assist disadvantaged business enterprises in obtaining business opportunities by identifying and encouraging disadvantaged suppliers, consultants, and sub consultants to participate to the extent possible, consistent with their qualification, quality of work, and obligation of Service Provider under this contract.
In connection with the performance of work under this contract, Service Provider agrees not to discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, age, or sexual orientation. This agreement includes, but is not limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.
Service Provider agrees, if applicable, to insert these provisions in all subcontracts, except for subcontracts for standard commercial supplies or raw materials. Any violation of any applicable provision by Service Provider shall constitute a material breach of the contract.
GC 9 of 13 17. FEDERAL SUBCONTRACTING REQUIREMENTS. If Service Provider awards a subcontract under this contract, Service Provider, if applicable, shall use the following alternative steps:
A. Using the services of the Small Business Administration and the Minority Business Development Agency of the United States Department of Commerce, as appropriate; and B. Requiring the subcontractor, if it awards subcontracts, to take the affirmative steps set forth in paragraph A.
If applicable, Service Provider agrees to complete and submit to the City a Minority Business Enterprise/Woman Business Enterprise (MBE/WBE) Utilization Report (Standard Form 334) within 30 days after the end of each fiscal quarter until the end of the contract.
18. ENDORSEMENT. Service Provider shall seal and/or stamp and sign professional documents including drawings, plans, maps, reports, specifications, and other instruments of service prepared by Service Provider or under its direction as required under the laws of the State of New Hampshire.
19. ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING. Service Provider shall not assign, transfer, delegate, or subcontract any rights, obligations, or duties under this contract without the prior written consent of the City. Any such assignment, transfer, delegation, or subcontracting without the prior written consent of the City is void. Any consent of the City to any assignment, transfer, delegation, or subcontracting shall only apply to the incidents expressed and provided for in the written consent and shall not be deemed to be a consent to any subsequent assignment, transfer, delegation, or subcontracting. Any such assignment, transfer, delegation, or subcontract shall require compliance with or shall incorporate all terms and conditions set forth in this agreement, including all incoiporated Exhibits and written amendments or modifications. Subject to the foregoing provisions, the contract inures to the benefit of, and is binding upon, the successors and assigns of the parties.
20. CITY INSPECTION OF CONTRACT MATERIALS. The books, records, documents and accounting procedures and practices of Service Provider related to this contract shall be subject to inspection, examination and audit by the City, including, but not limited to, the contracting agency, the Board of Public Works, Corporation Counsel, and, if applicable, the Comptroller General of the United States, or any authorized representative of those entities.
21. DISPOSITION OF CONTRACT MATERIALS. Any books, reports, studies, photographs, negatives or other documents, data, drawings or other materials, including but not limited to those contained in media of any sort (e.g., electronic, magnetic, digital) prepared by or supplied to Service Provider in the performance of its obligations under this contract shall be the exclusive property of the City and all such materials shall be remitted and delivered, at Service Provider's expense, by Service Provider to the City upon completion, tennination, or cancellation of this contract. Alternatively, if the City provides its written approval to Service Provider, any books, reports, studies, photographs, negatives or other documents, data, drawings or other materials including but not limited to those contained in media of any sort (e.g., electronic, magnetic, digital) prepared by or supplied to Service Provider in the performance of its obligations under this contract must be retained by Service Provider for a minimum of four years after final payment is made and all other pending matters are closed. If, at any time during the retention period, the City, in writing, requests any or all of the materials, then Service Provider shall promptly remit and deliver the materials, at Service Provider's expense, to the City. Service Provider shall not use, willingly allow
GC 10 of 13 or cause to have such materials used for any purpose other than the performance of Service Provider's obligations under this contract without the prior written consent of the City.
22. PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS. Service Provider expressly agrees that all documents ever submitted, filed, or deposited with the City by Service Provider (including those remitted to the City by Service Provider pursuant to paragraph 21), unless designated as confidential by a specific statue of the State of New Hampshire, shall be treated as public records and shall be available for inspection and copying by any person, or any governmental entity.
No books, reports, studies, photographs, negatives or other documents, data, drawings or other materials including but not limited to those contained in media of any sort (e.g., electronic, magnetic, digital) prepared by or supplied to Service Provider in the performance of its obligations under this contract shall be the subject of any application for a copyright or patent by or on behalf of Service Provider. The City shall have the right to reproduce any such materials.
Service Provider expressly and indefinitely waives all of its rights to bring, including but not limited to, by way of complaint, interpleader, intervention, or any third party practice, any claims, demands, suits, actions, judgments, or executions, for damages or any other relief, in any administrative or judicial forum, against the City or any of its officers or employees, in either their official or individual capacity, for violations of or infringement of the copyright or patent laws of the United States or of any other nation. Service Provider agrees to indemnify, to defend, and to hold harmless the City, its representatives, and employees from any claim or action seeking to impose liability, costs, and attorney fees incurred as a result of or in connection with any claim, whether rightful or otherwise, that any material prepared by or supplied to Service Provider infringes any copyright or that any equipment, material, or process (or any part thereof) specified by Service Provider infringes any patent.
Service Provider shall have the right, in order to avoid such claims or actions, to substitute at its expense non-infringing materials, concepts, products, or processes, or to modify such infringing materials, concepts, products, or processes so they become non-infringing, or to obtain the necessary licenses to use the infringing materials, concepts, products, or processes, provided that such substituted or modified materials, concepts, products, or processes shall meet all the requirements and be subject to all the terms and conditions of this contract.
23. FINAL ACCEPTANCE. Upon completion of all work under the contract, Service Provider shall notify the City in writing of the date of the completion of the work and request confirmation of the completion from the City. Upon receipt of the notice, the City shall confirm to Service Provider in writing that the whole of the work was completed on the date indicated in the notice or provide Service Provider with a written list of work not completed. With respect to work listed by the City as incomplete, Service Provider shall promptly complete the work and the final acceptance procedure shall be repeated. The date of final acceptance of a project by the City shall be the date upon which the Board of Public Works or other designated official accepts and approves the notice of completion.
24. TAXES. Service Provider shall pay all taxes, levies, duties, and assessments of every nature due in connection with any work performed under the contract and make any and all payroll deductions required by law. The contract sum and agreed variations to it shall include all taxes imposed by law. Service Provider hereby indemnifies and holds harmless the City from any liability on account of any and all such taxes, levies, duties, assessments, and deductions.
GC 11 of 13 25. NON-WAIVER OF TERMS AND CONDITIONS. None of the terms and conditions of this contract shall be considered waived by the City. There shall be no waiver of any past or future default, breach, or modification of any of the terms and conditions of the contract unless expressly stipulated to by the City in a written waiver.
26. RIGHTS AND REMEDIES. The duties and obligations imposed by the contract and the rights and remedies available under the contract shall be in addition to and not a limitation of any duties, obligations, rights, and remedies otherwise imposed or available by law.
27. PROHIBITED INTERESTS. Service Provider shall not allow any officer or employee of the City to have any indirect or direct interest in this contract or the proceeds of this contract. Service Provider warrants that no officer or employee of the City has any direct or indirect interest, whether contractual, non-contractual, financial or otherwise, in this contract or in the business of Service Provider. If any such interest comes to the attention of Service Provider at any time, a full and complete disclosure of the interest shall be immediately made in writing to the City, Service Provider 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. Service Provider further warrants that no person having such an interest shall be employed in the performance of this contract. If City determines that a conflict exists and was not disclosed to the City, it may terminate the contract at will or for cause in accordance with paragraph 8.
In the event Service Provider (or any of its officers, partners, principals, or employees acting with its authority) is convicted of a crime involving a public official arising out or in connection with the procurement of work to be done or payments to be made under this contract, City may terminate the contract at will or for cause in accordance with paragraph 8. Upon tennination, Service Provider shall refund to the City any profits realized under this contract, and Service Provider shall be liable to the City for any costs incurred by the City in completing the work described in this contract. At the discretion of the City, these sanctions shall also be applicable to any such conviction obtained after the expiration or completion of the contract.
Service Provider warrants that no gratuities (including, but not limited to, entertainment or gifts) were offered or given by Service Provider to any officer or employee of the City with a view toward securing a contract or securing favorable treatment with respect to the awarding or amending or making of any determinations with respect to the performance of this contract. If City detennines that such gratuities were or offered or given, it may tenninate the contract at will or for cause in accordance with paragraph 8.
The rights and remedies of this section shall in no way be considered for be construed as a waiver of any other rights or remedies available to the City under this contract or at law.
28. THIRD PARTY INTERESTS AND LIABILITIES. The City and Service Provider, including any of their respective agents or employees, shall not be liable to third parties for any act or omission of the other party. This contract is not intended to create any rights, powers, or interest in any third party and this agreement is entered into for the exclusive benefit of the City and Service Provider.
29. SURVIVAL OF RIGHTS AND OBLIGATIONS. The rights and obligations of the parties that by their nature survive termination or completion of this contract shall remain in full force and effect.
GC 12 of 13 30. SEVERABILITY. In the event that any provision of this contract is rendered invalid or unenforceable by any valid act of Congress or of the New Hampshire legislature or any court of competent jurisdiction, or is found to be in violation of state statutes or regulations, the invalidity or unenforceability of any particular provision of this contract shall not affect any other provision, the contract shall be construed as if such invalid or unenforceable provisions were omitted, and the parties may renegotiate the invalid or unenforceable provisions for sole purpose of rectifying the invalidity or unenforceability.
31. MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT. This contract constitutes the entire contract between the City and Service Provider. The parties shall not be bound by 01* be liable for any statement, representation, promise, inducement, or understanding of any kind or nature not set forth in this contract. No changes, amendments, or modifications of any terms or conditions of the contract shall be valid unless reduced to writing and signed by both parties.
32. CHOICE OF LAW AND VENUE. This contract shall be governed exclusively by the laws of the State of New Hampshire and any litigation shall be brought in a court located in the State of New Hampshire.
GC 13 of 13 Exhibit B Accurate Tree Removal Scope of Work October 22, 2019 ACCURATE TREE SERVICE, LLC
COMMERCIAL AND RESIDENTIAL TREE CUTTING, CHIPPING AND STUMP GRINDING
PROPOSAL
October 22, 2019
City of Nashua 229 Main St. Nashua NH 03060
IFB0980-091619 Nashua Riverfront Tree Removal Project:
Removal/trimming of all four quadrants as discussed onsite during walk through on 10/21/19 with Tim Cummings, Director of Economic Development, City of Nashua and David Burl, Owner of Accurate Tree Service. Scope of work to be developed and discussed by both parties, and lo be predicated on the request and map in the RFP dated August 7, 2019. Total amount not to exceed $200,000.00.
TOTAL: $200,000.00
1 50 LONDONDERRY TURNPIKE HOOKSETT NH 03106 CELL: 603-23 5-6799 UFP ICH: 603-645-6011 FAX: 603-232.2667 Exhibit C IFB0980-0916 Nashua Riverfront Tree Removal Project THE CITY OF NASHUA 'The Gate City Administrative Services Purchasing Department
August 23,2019
Nashua Riverfront Tree Removal Project
IFB0980-091619
The City of Nashua, New Hampshire, herein referred to as "the City", is seeking proposals from qualified, interested parties to submit a proposal for the removal of trees along the Nashua River. Removal will take place on the North and possibly the South side of the river front in certain areas along the Nashua River. The project will include cutting down of trees, trimming and removal of debris. The project will be completed in early fall of 2019. The Scope of Work may be found on Page 4. The City reserves the right to substitute work of similar nature or add additional work subject to the contract amendment process.
Contractor shall ensure that its activities and activities of its employees are in strict compliance with all applicable federal, state, and local statutes, ordinances, regulations and rules, including without limitation the Federal OSHA of 1970, as amended and the standards and regulations issued hereunder, and all other statutes, ordinances, regulation, rules, standards and requirements of common law in relation to industrial hygiene and safety, and the protections of health and the environment.
Completion time for the project will be as follows: Substantial completion shall be by FALL 2019 Project will begin once a written "Notice to Proceed" is issued.
INSTRUCTIONS TO VENDORS:
For this IFB you may submit a paper bid or electronically via Bid Express. A Digital ID is not required for this IFB. Please review the attachments, Bid Express Vendor Guide and Vendor Set-up Guide for more information. If you choose to submit a paper proposal it must be submitted in a sealed envelope with one (1) original and two (2) copies along with a PDF version on USB storage device and clearly marked "Nashua Riverfront Tree Removal Project". Responses shall be bound. There is no page limit, however it is noted that relevance and brevity shall be considered during evaluation of the submittals. The names of those agencies that submit a proposal will be posted on the website, under Bid Results, within twenty-four (24) hours of opening.
Regardless of the method of submission, proposals shall be submitted, as outlined in the preceding paragraph, no later than 3:00 PM on Monday, September 16, 2019. Paper proposals must be sent to: Purchasing Department, City Hall, Room 11, Basement Level, 229 Main Street, Nashua NH, 03061-2019. Proposals must be submitted in the format provided and address the items specified in the proposal specifications. Postmarks or other timestamps will not be accepted in lieu of actual delivery.
IFB0980-091 619 Nashua Riverfront Tree Removal Project Page 1 of 1 0 The firm can use whatever delivery mechanism it chooses as long as it remains clear that the firm is responsible for submissions prior to the date and time.
The City of Nashua assumes no liability for the payment of costs and expenses incurred by any bidder in responding to this request for qualifications. All IFB's become the sole property of the City of Nashua. This request for qualifications is not a contract and alone shall not be interpreted as such but rather serves as an instrument through which IFB's are solicited.
There will be a non-mandatory site visit on Thursday, September 5, 2019, at 9:30AM at the Main Street Bridge. Please park beside 75 Main Street. Attendance to this meeting is not mandatory but encouraged. Consultants who do not attend the meeting can submit questions in writing per dates specified in this 1FB and submit proposals. The timeline for this project is as follows:
Date Time
NON-MANDATORY Site Visit Thursday, September 5, 2019 9:30 AM Main Street Bridge 75 Main Street NashuaNH 03061 Deadline for Vendor Questions Monday, September 9, 2019 5:00 PM
Answers/Clarifications Posted Thursday, September 12, 2019 5:00 PM
IFB Responses due Monday, September 16, 2019 3:00 PM Purchasing Department 229 Main Street Room 11 - Basement Level Nashua NH 03061 Interviews ASAP TBD
Vendors are encouraged to submit questions via email or via Bid Express; however, the City assumes no liability for assuring accurate and complete email transmission/receipt and is not responsible to acknowledge receipt. Inquiries must be submitted in writing to the individuals below, citing the IFB title, IFB number, Page, Section, and received no later than Monday, September 9, 2019 at 5:00 PM:
Tim Cummings, Director of Economic Development
cummingst@nashuanh. gov &
Danielle Greenberg, Purchasing Agent II
IFB0980-091 619 Nashua Riverfront Tree Removal Project Page 2 of 1 0 The City will consider all timely-received questions and requests for change and, if reasonable and appropriate, will issue an addendum to clarify or modify this IFB. Answers to vendor submitted questions and other addenda will be posted under document IFB0980-091619 on the City of "Nashua website; www.nashuanh. gov, under Services, Bid Opportunities; Current Bids and to Bid Express no later than Thursday, September 12, 2019 at 5:00 PM.
The City is exempt of all taxes. All bidders must comply with all applicable Equal Employment Opportunity laws and regulations.
All bids are binding for ninety (90) days following the deadline for bids, or until the effective date of any resulting contract, whichever is later.
The City of Nashua may reject any or all of the proposals on any basis and without disclosure of a reason. The failure to make such a disclosure shall not result in accrual of any right, claim or cause of action by any unsuccessful bidder against the City of Nashua. The City of Nashua reserves the right to waive any irregularities when the public interest will be served thereby. The City of Nashua also reserves the right to negotiate any change or amendment in any bid without soliciting further bids if the action is necessary for the best interest of the City of Nashua.
To be eligible for an award, a BIDDER must be deemed "responsible". A responsible BIDDER 1) has the ability, capacity and skill to provide the goods or services required; 2) can provide the goods or services within the time frame specified; 3) has a satisfactory record of integrity, reputation, judgment and experience; 4) has sufficient financial resources to provide the goods or services; 5) has an ability to provide future maintenance and support as required; and 6) has developed a positive track record with the City of Nashua to the extent the BIDDER has previously provided goods or services.
Pursuant to NRO 5-78 (F), the purchasing manager shall not solicit a bid from a contractor who is in default on the payment of taxes, licenses or other monies due the city. Therefore, this bid request is void as to anyone who is in default on said payments.
Sincerely,
Danielle Greenberg Purchasing Agent II City of Nashua greenbergd@nashuanh. gov
IFB0980-091 619 Nashua Riverfront Tree Removal Project Page 3 of 1 0 Scope of Work:
The work for which this Contract is establish is to remove, prune and trim trees on the north side of the Nashua River starting from Margaritas Restaurant, 1 North Drive to the back of Building 30 of 34 Franklin Street.
In addition, a separate quote for removal, pruning and trimming for the south side of the River starting at 25 Water Street along the River to the east of Nashua Public Library ending at 70 Temple Street should also be provided.
Location of Tree Removal work:
The tree removal for this project will occur on the north side of the river starting from Margaritas Restaurant, 1 North Drive to the back of Building 30 of 34 Franklin Street. All trees selected for removal will be clearly marked with paint by the selected Bidder. It is the Bidder's responsibility to make arrangements with the utility company for removal of branches extended through power/and or telephone line so removal operations will not be delayed.
This area is within the City's Urbanized Shoreland Exemption (Env-Wq 1410); therefore it is exempt from NH DES Shoreland permitting requirements and the City's Wetlands permitting requirements.
The Bidder shall protect sidewalks, curbs, streets, manhole covers, catch basins, housing properties and automobiles from the impact of falling derbies.
IFB0980-091 619 Nashua Riverfront Tree Removal Project Page 4 of 1 0 Tree Trimming:
Pruning includes the removal of all dead wood, corrective pruning, removal of invasive vines and pruning to improve the appearance of the tree and make the river visible.
Commencement of work:
The selected Bidder shall remove all marked trees within six (6) weeks of receiving notice to begin work unless the City grants an extension. The request for extension shall be in writing.
Cleanup:
All derbies shall be cleaned immediately after removal or pinning of a tree. All streets and driveways shall be swept clean. Care shall also be taken as not to damage other trees, shrubs or lawn not included for removal.
Safety Requirements:
All work shall be done in accordance with the New Hampshire Traffic Control Plan. Contractor will be responsible for high visibility vest for employees when working within 25 feet of roadways. Safety cones shall be used around equipment and roadways.
The contractor shall take all precaution to avoid damaging all drip irrigation hoses. Damages to the infrastructure caused by the contractor during the terms of this contractor shall be repaired at the sole expense of the Contractor within eight (8) days of damage.
Debris Removal:
All debris from the tree removal operations shall be removed from the site within twenty-four (24) hours after debris has been placed, unless authorized by the City. Should the Contractor need a location for temporary storage, such authorization and designation shall be given by the City prior to storage. Under no circumstance shall debris be left on the premises or street overnight, weekend or holidays without written permission from the City.
In addition, keeping debris off the street and walkway areas and out of the gutters prevents the debris from entering and plunging the sewer systems. Environmentally accepted practices of debris disposal are also an important part of this work.
Tree Stump Removal:
Trees that are removed shall have the stumps trimmed as close to the ground as possible.
Disposal of Material:
Contractor shall legally dispose of all waste materials in accordance to City and State laws governing the disposal of such materials.
IFB0980-091 619 Nashua Riverfront Tree Removal Project Page 5 of 1 0 Examination of Site:
Bidders shall inform themselves of all the conditions under which the work is to be performed concerning the site of the work, the obstacles that may be encountered and all other relevant matters concerning the work to be performed under this contract.
The Contractor to whom a contract is awarded will not be allowed any extra compensation by reasons of any such matters of things concerning which the Contractor did not familiarize themselves prior to bidding.
The City shall work with the property owners and Contractor to ensure adequate working spaces will be available, including to coordinate alternative parking or closed parking area while a work site is active.
Meeting before work begins:
The recipient of this contract shall meet with the City prior to commencement of work to review contract specifications, identify project contact person to ensure that the project is earned out according to prescribed specifications outlined in the scope.
If necessary, the Contractor will join the City to meet with stakeholders of this project.
Compliance Agreement:
Any ash debris must be disposed of according to Federal Laws and State of New Hampshire Environmental Services law outlined in Chapter Env-Sw 1000 of solid waste rules. If combusted, the contractor will do so in accordance with State and Federal standards. All debris generated by this contract is the sole responsibility of the contractor to ensure destruction.
Under no circumstance shall the Contractor leave debris behind.
Damage to Public or private Property:
Any damage of public or private property caused by the contractor's operations shall be resolved with the property owner within five (5) days after damage occurs to the satisfaction of the owner. The contractor shall inform the City of any damage caused by the Contractor. Should the damage not be rectified within the set time above and no agreement made with the City, the City reserves the right to repair or replace that which was damaged by the Contractor and deduct these cost from any payment due the Contractor and task the contractor for any additional amount should the cost for such repair exceeds money owed to contractor.
Protection of Existing Facilities:
Existing facilities including grounds, structure, landscaping and other areas shall be protected by the Contractor. Any damages to existing facilities shall be reported to the City and shall be repaired promptly by the Contractor when asked by the City to do so. Such repairs shall be made to the satisfaction of the City.
Periodic Inspection:
The contractor shall notify the City at the beginning and end of workday. Notification should entail work completed for the day. The City shall periodically inspect the work being done and will engage the supervisor.
IFB0980-091 619 Nashua Riverfront Tree Removal Project Page 6 of 1 0 Contractor Representative:
All employees of the Contractor should conduct themselves in a professional manner fashioned according to the work at hand. The onsite supervisor shall act in good faith of the Contractor and must have the authority to execute request made by the City.
There shall be at least one certified Arborist or certified Tree worker on site at all times.
Accessibility of Contractor:
Contractor shall furnish the contact number for the onsite supervisor and all leading role personnel task with this project. It is expected that all attempt made by the City to contact the onsite supervisor or lead personnel will be fruitful. In the event the City calls the assigned supervisor afterhours, the City personnel shall receive a call back within one hour.
Working Hours:
The Contractor shall work the same hours as the City (8:00AM - 5:00PM) unless prior arrangements is made for other working hours.
Costs:
The selected Contractor will be required to provide the City with Performance Bond covering the cost of the project, if the project exceeds $35,000 in cost. The cost of the performance Bond shall be included in the project cost response provided by the Bidder.
The bidder affirms and states that the prices quoted herein constitutes the total cost to the City for all work involved in the respective items. This cost also includes all proposal, preparation costs, insurance, royalties, bonds, transportation charges, use of all tools and equipment, superintendent, overhead expense, inspection costs, all profits and all other work services and conditions necessarily involved in the work to be done.
IFB0980-091 619 Nashua Riverfront Tree Removal Project Page 7 of 1 0 Submission Requirement:
Evaluation Criteria
Bids shall be evaluated by specific criteria set forth in this Bid. All Bids considered responsive shall be evaluated for completeness of data provided, support for all claims made, and the overall approach taken. The objective is to select a Contractor through the outlined evaluation process, whose Bid is judged to be in the best interest of the City of Nashua.
Selection Process
The Bidder selected for a contract will be the Bidder whose Bid, as presented in response to this Bid is the most advantageous to the City. The City is not bound to accept the lowest if that Bid is not in the best interest of the City determined by the City. The City reserves the right to accept or reject any and/or all offers, to waive any and /or all formalities to clarify any discrepancies in the Bid and to award a contract in the best interest of the City of Nashua.
The following criteria will be used to evaluate, rate and rank the Bids received. The City may choose to interview the top firms following ranking or immediately select a firm from the Bids submitted.
1. Qualifications and experience of Contractor
2. Past performance and service on similar projects
3. Proposed approach to project
4. Cost
Submission Requirements
Respondents must organize their submittals in the following manner:
Part 1 - Cover Letter and Finn Overview
Part 2 - Project Understanding
Part 3 - Project Team & Bios/Resumes
Part 4 ~ Project Experience and References
Part 5 - Project Approach
Part 6 -Cost
Part 7 - Schedule/Timeline
IFB0980-091 619 Nashua Riverfront Tree Removal Project Page 8 of 1 0 Part 1 - Cover Letter and Firm Overview
The cover letter should clearly indicate the name of the firm proposing.
Respondents must acknowledge their understanding of the project and services to be provided, as well as awareness of all posted explanations and addenda for this RFB. Tell us why this project is of interest to your firm and how your firm's approach and methodology will mesh well with our mission. Provide a brief firm overview outlining your firm's history, structure, and capabilities.
Part 2 - Pro ject Understanding a. Describe your familiarity with permitting on similar assignments. Discuss your plan for delivering a riverfront that is visible and welcoming to the public according to schedule and budget. b. Identify your approach to working with the City, adjacent property owners and stakeholders, along with any state or federal departments required for tree removal.
Part 3 - Project Team & Bios
All key staff shall be identified and their roles described. Identification of key staff members is considered a commitment to assign these individuals should the Bidder is selected
In addition, at a minimum, the respondent must identify the following key positions: Arborist, a Project Manager, Superintendent and Estimator.
The City reserves the right to approve or disapprove of the proposed staff for this project. The proposed team and staff assignments shall remain consistent throughout the project. If substitutions are proposed, they must be presented to the City in writing for review and acceptance.
Part 4 - Project Experience and References a. Relevant Experience - A description of relevant experience that demonstrates proven experience in design, permitting and construction administration on similar assignments will be provided. b. References - Three references will be provided who are familiar with the Contractor's relevant experience and expertise.
Part 5 - Project Approach
The Bidder's project approach will be described in sufficient detail to demonstrate knowledge of the steps needed to successfully complete the described project in the allotted time. The project approach will also include any recommendations the Bidder may have that could improve the overall process.
IFB0980-091 619 Nashua Riverfront Tree Removal Project Page 9 of 1 0 Part 6 - Cost
Provide a breakdown of cost for your work using the guide below:
• Permits (if any)
• Performance Bond
• Completion of service North of the River
• Completion of service South of the River
• Other (if any)
Part 7 - Project Schedule
Provide a schedule for your work with details on recommended interim milestones using the guide below:
• Permits (if any) weeks
• Cutting weeks
• Completion of North East section of Main St. Bridge weeks
• Completion of North West section of Main St. Bridge weeks
• Other weeks
IFB0980-091 619 Nashua Riverfront Tree Removal Project Page 10 of 1 0 Finance Committee
December 4, 2019
Items
Communication Transit Change Order for one (1) Front Runner Van
'20-059 Wastewater Wet Weather Influent Screening Upgrade - Construction Engineering Services
'20-060 Wastewater Wet Weather Influent Screening Upgrade - Construction Services Finance Committee
December 4, 2019
Items
Communication Transit Change Order for one (1) Front Runner Van
'20-059 Wastewater Wet Weather Influent Screening Upgrade - Construction Engineering Services
'20-060 Wastewater Wet Weather Influent Screening Upgrade- Construction Services THE CITY OF NASHUA 'The Gate City Finanäa! Services Purchasing Department
November 28, 2019 Memo #20-062
TO: MAYOR DONCHESS FINANCE COMMITTEE
SUBJECT: CONTRACT FOR CONSTRUCTION MANAGEMENT SERVICES FOR PUBLIC HEALTH RENOVATION PROJECT (VALUE: $17,000) DEPARTMENTS83 ECONOMIC DEVELOPMENT; FUND: BOND
Please see attached communication from Tim Cummings, Director of Economic Development dated November 21, 2019 for the information related to this purchase.
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 shai! exceed $10,000 shall be purchased by formal, written contract from the lowest responsible bidder, after due notice inviting bids.
The Director of Economic Development and the Purchasing Department recommend award of this contract in an amount of $17,000 to Martini Northern, LLC of Portsmouth, NH.
Purchasing Manager
Cc: T Cummings J Graziano
229 Main Street • Nashua, New Hampshire 03061 • Phone (603) 589-3330 • Fax (603) 589-3233 j THE CITY OF NASHUA "The Gate City'
Economic Development
To: James Donchess, Mayor From: T. Cummings, Economic Development Director Ce: B. Bagley, Director Public Health & Community Services
Date: November 21, 2019
Re: Contract for Construction Management Services for Public Health Building
The Office of Economic Development in partnership with the City's Office of Public Health & Community Services along with Building Maintenance solicited proposals for construction management services for the Public Health Building in an RFP #0275-080819 released this past summer. Specifically, the services sought are to assist with the renovation of 18 Mulberry Street.
I along with Bobbi Bagley, Jay Hunnewell and Kim Kleiner solicited proposals from firms who have past experience renovating and constructing municipal buildings of similar scope and size. Three firms responded and only two firms were deemed valid to move forward through the procurement process. Jay Hunnewell, Kim Kleiner and I reviewed the proposals and evaluated them on the following criteria: qualifications/experience, past performance and service on similar projects, proposed approach to scope of work, responses in interviews and cost.
Martini Northern was chosen unanimously due to their comprehensive knowledge and their strong past experience working with municipalities, specifically on older historic building that were adding elevators to create a more ADA compliant environment.
I am recommending awarding a contract for construction management services for the amount not to 3.5% of the Guaranteed Maximum Price ("GMP") for a management fee plus a $17,000 preconstruction services fee along with various minor miscellaneous expenses to Martini Northern. However, the way the proposal is structured the city is only obligating to paying $17,000 for preconstruction services related development of a project at this time. A written authorization to proceed is necessary before the balance of the contract can be carried out. The Purchase Order for the city should only be issued for $17,000.
We built this additional safeguard into the contract to ensure we are designing a project with the available budget, which is approximately $2.5 million dollars.
As a reminder the scope of work is focused on the building's envelope: doors, windows, roof, and elevator (creating ADA accessibility), upgrading HVAC and other miscellaneous improvements as necessary to be code compliant. Agreement between Owner and Construction Manager as Constructor
This Agreement is made as of the day of December, 2019.
Between OWNER: The City of Nashua 18 Mulberry Street, Nashua, NH and CONSTRUCTION MANAGER: Martini Northern, LL 299 Hanover Street, Portsmouth, NH 03801
For the following PROJECT: Public Health Renovation Project, 18 Mulberry Street, Nashua NH
ARCHITECT: Dennis Mires The Architects, P.A.
697 Union Street, Manchester, NH 03104
The Owner and Construction Manager agree as follows.
EXHIBIT A GUARANTEED MAXIMUM PRICE AMENDMENT ARTICLE 1 GENERAL PROVISIONS § 1.1 The Contract Documents The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Bid documents, Addenda issued prior to the execution of this Agreement, other documents listed in this Agreement, and Modifications issued after execution of this Agreement, all of which form the Contract and are as fully a part of the Contract as if attached to this Agreement or repeated herein. Upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, the Contract Documents will also include the documents described in Section 2.2.3 and identified in the Guaranteed Maximum Price Amendment and revisions prepared by the Architect and furnished by the Owner as described in Section 2.2.8. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. If anything in the other Contract Documents, other than a Modification, is inconsistent with this Agreement, this Agreement shall govern.
§ 1.2 Relationship of the Parties The Construction Manager accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to cooperate with the Architect and exercise the Construction Manager's skill and judgment in furthering the interests of the Owner; to furnish efficient construction administration, management services and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in an expeditious and economical manner consistent with the Owner's interests. The Owner agrees to furnish or approve, in a timely manner, information required by the Construction Manager and to make payments to the Construction Manager in accordance with the requirements of the Contract Documents.
§ 1.3 General Conditions For the Preconstruction Phase, AI A Document A201™-2007, General Conditions of the Contract for Construction, shall apply only as specifically provided in this Agreement. For the Construction Phase, the general conditions of the contract shall be as set forth in A201-2007, which document is incorporated herein by reference. The term "Contractor" as used in A201-2007 shall mean the Construction Manager.
ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager's Preconstruction Phase responsibilities are set forth in Sections 2.1 and 2.2. The Construction Manager's Construction Phase responsibilities are set forth in Section 2.3. The Owner and Construction Manager may agree, in consultation with the Architect, for the Construction Phase to commence prior to completion of the Preconstruction Phase, in which case, both phases will proceed concurrently. The Construction Manager shall identify a representative authorized to act on behalf of the Construction Manager with respect to the Project.
Page 1 of 16 § 2.1 Preconstruction Phase § 2.1.1 The Construction Manager shall provide a preliminary evaluation of the Owner's program, schedule and construction budget requirements, each in terms of the other.
§2.1.2 Consultation The Construction Manager shall schedule and conduct meetings with the Architect and Owner to discuss such matters as procedures, progress, coordination, and scheduling of the Work. The Construction Manager shall advise the Owner and the Architect on proposed site use and improvements, selection of materials, and building systems and equipment. The Construction .Manager shall also provide recommendations consistent with the Project requirements to the Owner and Architect on constructability; availability of materials and labor; time requirements for procurement, installation and construction; and factors related to construction cost including, but not limited to, costs of alternative designs or materials, preliminary budgets, life-cycle data, and possible cost reductions.
§ 2.1.3 When Project requirements in Section 3.1.1 have been sufficiently identified, the Construction Manager shall prepare and periodically update a Project schedule for the Architect's review and the Owner's acceptance. The Construction Manager shall obtain the Architect's approval for the portion of the Project schedule relating to the performance of the Architect's services. The Project schedule shall coordinate and integrate the Construction Manager's services, the Architect's services, other Owner consultants' services, and the Owner's responsibilities and identify items that could affect the Project's timely completion. The updated Project schedule shall include the following: submission of the Guaranteed Maximum Price proposal; components of the Work; times of commencement and completion required of each Subcontractor; ordering and delivery of products, including those that must be ordered well in advance of construction; and the occupancy requirements of the Owner.
§ 2.1.4 Phased Construction The Construction Manager shall provide recommendations with regard to accelerated or fast-track scheduling, procurement, or phased construction. The Construction Manager shall take into consideration cost reductions, cost information, constructability, provisions for temporary facilities and procurement and construction scheduling issues.
§ 2.1.5 Preliminary Cost Estimates § 2.1.5.1 Based on the preliminary design and other design criteria prepared by the Architect, the Construction Manager shall prepare preliminary estimates of the Cost of the Work or the cost of program requirements using area, volume or similar conceptual estimating techniques for the Architect's review and Owner's approval. If the Architect or Construction Manager suggests alternative materials and systems, the Construction Manager shall provide cost evaluations of those alternative materials and systems.
§ 2,1.5.2 As the Architect progresses with the preparation of the Schematic Design, Design Development and Construction Documents, the Construction Manager shall prepare and update, at appropriate intervals agreed to by the Owner, Construction Manager and Architect, estimates of the Cost of the Work of increasing detail and refinement and allowing for the further development of the design until such time as the Owner and Construction Manager agree on a Guaranteed Maximum Price for the Work. Such estimates shall be provided for the Architect's review and the Owner's approval. The Construction Manager shall inform the Owner and Architect when estimates of the Cost of the Work exceed the latest approved Project budget and make recommendations for corrective action.
§ 2.1.6 Subcontractors and Suppliers The Construction Manager shall develop bidders' interest in the Project.
§ 2.1.7 The Construction Manager shall prepare, for the Architect's review and the Owner's acceptance, a procurement schedule for items that must be ordered well in advance of construction. The Construction Manager shall expedite and coordinate the ordering and delivery of materials that must be ordered well in advance of construction. If the Owner agrees to procure any items prior to the establishment of the Guaranteed Maximum Price, the Owner shall procure the items on terms and conditions acceptable to the Construction Manager. Upon the establishment of the Guaranteed Maximum Price, the Owner shall assign all contracts for these items to the Construction Manager and the Construction Manager shall thereafter accept responsibility for them.
Page 1 of 16 § 2.1.8 Extent of Responsibility The Construction Manager shall exercise reasonable care in preparing schedules and estimates. The Construction Manager, however, does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. The Construction Manager is not required to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, but the Construction Manager shall promptly report to the Architect and Owner any nonconformity discovered by or made known to the Construction Manager as a request for information in such form as the Architect may require.
§ 2.1.9 Notices and Compliance with Laws The Construction Manager shall comply with applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities applicable to its performance under this Contract, and with equal employment opportunity programs, and other programs as may be required by governmental and quasi-governmental authorities for inclusion in the Contract Documents.
§ 2.2 Guaranteed Maximum Price Proposal and Contract Time § 2.2.1 At a time to be mutually agreed upon by the Owner and the Construction Manager and in consultation with the Architect, the Construction Manager shall prepare a Guaranteed Maximum Price proposal for the Owner's review and acceptance. The Guaranteed Maximum Price in the proposal shall be the sum of the Construction Manager's estimate of the Cost of the Work, including contingencies described in Section 2.2.4, and the Construction Manager's Fee.
§ 2.2.2 To the extent that the Drawings and Specifications are anticipated to require further development by the Architect, the Construction Manager shall provide in the Guaranteed Maximum Price for such further development consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such tilings as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incoiporated by Change Order.
§ 2.2.3 The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis, which shall include the following: .1 A list of the Drawings and Specifications, including all Addenda thereto, and the Conditions of the Contract; .2 A list of the clarifications and assumptions made by the Construction Manager in the preparation of die Guaranteed Maximum Price proposal, including assumptions under Section 2.2.2, to supplement the information provided by the Owner and contained in the Drawings and Specifications; .3 A statement of the proposed Guaranteed Maximum Price, including a statement of the estimated Cost of the Work organized by trade categories or systems, allowances, contingency, and the Construction Manager's Fee; .4 The anticipated date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based; and .5 A date by which the Owner must accept the Guaranteed Maximum Price.
§ 2.2.4 In preparing the Construction Manager's Guaranteed Maximum Price proposal, the Construction Manager shall include its contingency for the Construction Manager's exclusive use to cover those costs considered reimbursable as the Cost of the Work but not included in a Change Order.
§ 2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal. In the event that the Owner and Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both.
§ 2.2.6 If the Owner notifies the Construction Manager that the Owner has accepted the Guaranteed Maximum Price proposal in writing before the date specified in the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price proposal shall be deemed effective without further acceptance from the Construction Manager. Following acceptance of a Guaranteed Maximum Price, the Owner and Construction Manager shall execute the Guaranteed Maximum Price Amendment amending this Agreement, a copy of which the Owner shall provide to the Architect.
Page 1 of 16 The Guaranteed Maximum Price Amendment shall set forth the agreed upon Guaranteed Maximum Price with the information and assumptions upon which it is based.
§ 2.2.7 The Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work prior to the commencement of the Construction Phase, unless the Owner provides prior written authorization for such costs.
§ 2.2.8 The Owner shall authorize the Architect to provide the revisions to the Drawings and Specifications to incorporate the agreed upon assumptions and clarifications contained in the Guaranteed Maximum Price Amendment. The Owner shall promptly furnish those revised Drawings and Specifications to the Construction Manager as they are revised. The Construction Manager shall notify the Owner and Architect of any inconsistencies between the Guaranteed Maximum Price Amendment and the revised Drawings and Specifications.
§ 2.2.9 The Construction Manager shall include in the Guaranteed Maximum Price all sales, consumer, use and similar taxes for the Work provided by the Construction Manager that are legally enacted, whether or not yet effective, at the time the Guaranteed Maximum Price Amendment is executed.
§ 2.3 Construction Phase § 2.3.1 General § 2.3.1.1 For purposes of Section 8.1.2 of A201-2007, the date of commencement of the Work shall mean the date of commencement of the Construction Phase.
§ 2.3.1.2 The Construction Phase shall commence upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal or the Owner's issuance of a Notice to Proceed, whichever occurs earlier.
§ 2.3.2 Administration § 2.3.2.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Owner may designate specific persons from whom, or entities from which, the Construction Manager shall obtain bids. The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated especially for the Work and shall deliver such bids to the Architect. The Owner shall then determine, with the advice of the Construction Manager and the Architect, which bids will be accepted. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection.
§ 2.3.2.2 If the Guaranteed Maximum Price has been established and when a specific bidder (1) is recommended to the Owner by the Construction Manager, (2) is qualified to perform that portion of the Work, and (3) has submitted a bid that conforms to the requirements of the Contract Documents without reservations or exceptions, but the Owner requires that another bid be accepted, then the Construction Manager may require that a Change Order be issued to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the Owner by the Construction Manager and the amount and time requirement of the subcontract or other agreement actually signed with the person or entity designated by the Owner.
§ 2.3.2.3 Subcontracts or other agreements shall conform to the applicable payment provisions of this Agreement, and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. If the Subcontract is awarded on a cost plus a fee basis, the Construction Manager shall provide in the Subcontract for the Owner to receive the same audit rights with regard to the Subcontractor as the Owner receives with regard to the Construction Manager in Section 6.11 below.
§ 2.3.2.4 If the Construction Manager recommends a specific bidder that may be considered a "related party" according to Section 6.10, then the Construction Manager shall promptly notify the Owner in writing of such relationship and notify the Owner of the specific nature of the contemplated transaction, according to Section 6.10.2.
§ 2.3.2.5 The Construction Manager shall schedule and conduct meetings to discuss such matters as procedures, progress, coordination, scheduling, and status of the Work. The Construction Manager shall prepare and promptly distribute minutes to the Owner and Architect.
Page 1 of 16 § 2.3.2.6 Upon the execution of the Guaranteed Maximum Price Amendment, the Construction Manager shall prepare and submit to the Owner and Architect a construction schedule for the Work and submittal schedule in accordance with Section 3.10 of A201-2007.
§ 2.3.2.7 The Construction Manager shall record the progress of the Project. On a monthly basis, or otherwise as agreed to by the Owner, the Construction Manager shall submit written progress reports to the Owner and Architect, showing percentages of completion and other information required by the Owner. The Construction Manager shall also keep, and make available to the Owner and Architect, a daily log containing a record for each day of weather, portions of the Work in progress, number of workers on site, identification of equipment on site, problems that might affect progress of the work, accidents, injuries, and other information required by the Owner.
§ 2.3.2.8 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect and shall provide this information in its monthly reports to the Owner and Architect, in accordance with Section 2.3.2.7 above.
§ 2.4 Professional Services
Section 3.12.10 of A201-2007 shall apply to both the Preconstruction and Construction Phases.
§Sectio 2.5 Hazardoun 10.3 ofs A201-200Materials 7 shall apply to both the Preconstruction and Construction Phases.
ARTICLE 3 OWNER'S RESPONSIBILITIES § 3.1 Information and Services Required of the Owner § 3.1.1 The Owner shall provide information with reasonable promptness, regarding requirements for and limitations on the Project, including a written program which shall set forth the Owner's objectives, constraints, and criteria, including schedule, space requirements and relationships, flexibility and expandability, special equipment, systems, sustainability and site requirements.
§ 3.1.2 Prior to the execution of the Guaranteed Maximum Price Amendment, the Construction Manager may request in writing that the Owner provide reasonable evidence that the Owner has made financial arrangements to fulfill the Owner's obligations under the Contract. Thereafter, the Construction Manager may only request such evidence if (1) the Owner fails to make payments to the Construction Manager as the Contract Documents require, (2) a change in the Work materially changes the Contract Sum, or (3) the Construction Manager identifies in writing a reasonable concern regarding the Owner's ability to make payment when due. The Owner shall furnish such evidence as a condition precedent to commencement or continuation of the Work or the portion of the Work affected by a material change. After the Owner furnishes the evidence, the Owner shall not materially vary such financial arrangements without prior notice to the Construction Manager and Architect.
§ 3.1.3 The Owner shall establish and periodically update the Owner's budget for the Project, including (1) the budget for the Cost of the Work as defined in Section 6.1.1, (2) the Owner's other costs, and (3) reasonable contingencies related to all of these costs. If the Owner significantly increases or decreases the Owner's budget for the Cost of the Work, the Owner shall notify the Construction Manager and Architect. The Owner and the Architect, in consultation with the Construction Manager, shall thereafter agree to a corresponding change in the Project's scope and quality.
§ 3.1.4 Structural and Environmental Tests, Surveys and Reports. During the Preconstruction Phase, the Owner shall furnish the following information or services witii reasonable promptness. The Owner shall also furnish any other information or services under the Owner's control and relevant to the Construction Manager's performance of the Work with reasonable promptness after receiving the Construction Manager's written request for such information or services. The Construction Manager shall be entitled to rely on the accuracy of information and services furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work.
Page 5 of 16 § 3.1.4,1 The Owner shall furnish tests, inspections and reports required by law and as otherwise agreed to by the parties, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials.
§ 3.1.4,2 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alieys, pavements and adjoining property and structures; designated wetlands; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data with respect to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark.
§ 3.1.4,3 The Owner, when such services are requested, shall furnish services of geotechnical engineers, which may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, seismic evaluation, ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with written reports and appropriate recommendations.
§ 3.1.4.4 During the Construction Phase, the Owner shall furnish information or services required of the Owner by the Contract Documents with reasonable promptness. The Owner shall also furnish any other information or sendees under the Owner's control and relevant to the Construction Manager's performance of the Work with reasonable promptness after receiving the Construction Manager's written request for such information or services.
§ 3.2 Owner's Designated Representative The Owner shall identify a representative authorized to act on behalf of the Owner with respect to the Project. The Owner's representative shall render decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of the Construction Manager. Except as otherwise provided in Section 4.2.1 of A201-2007, the Architect does not have such authority. The term "Owner" means the Owner or the Owner's authorized representative.
§ 3.2.1 Legal Requirements. The Owner shall furnish all legal and accounting services, including auditing services that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests.
§ 3.3 Architect The Owner shall retain an Architect to provide services, duties, and responsibilities as described in AIA Document B133™—2014, Standard Form of Agreement between Owner and Architect, Construction Manager as Constructor Edition. The Owner shall provide the Construction Manager a copy of the executed agreement between the Owner and the Architect, and any further modifications to the agreement.
ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES § 4.1 Compensation § 4.1.1 For the Construction Manager's Preconstruction Phase services, the Owner shall compensate the Construction Manager as follows:
§ 4.1.2 For the Construction Manager's Preconstruction Phase services described in Sections 2.1 and 2.2: (Insert amount of or basis for, compensation and include a list of reimbursable cost items, as applicable.)
§ 4.1.3 If the Preconstruction Phase services covered by this Agreement have not been completed within << >> ( « >> ) months of the date of this Agreement, through no fault of the Construction Manager, the Construction Manager's compensation for Preconstruction Phase services shall be equitably adjusted.
§ 4.1.4 Compensation based on Direct Personnel Expense includes the direct salaries of the Construction Manager's personnel providing Preconstruction Phase services on the Project and the Construction Manager's costs for the mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, employee retirement plans and similar contributions.
Page 6 of 16 § 4.2 Payments
§ 4.2.1 Unless otherwise agreed, payments for sendees shall be made monthly in proportion to services performed.
§ 4.2.2 Payments are due and payable within 30 days of the Construction Manager's invoice.
ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES § 5.1 For the Construction Manager's performance of the Work as described in Section 2.3, the Owner shall pay the Construction Manager the Contract Sum in current funds. The Contract Sum is the Cost of the Work as defined in Section 6.1.1 plus the Construction Manager's Fee. § 5.1.1 The Construction Manager's Fee: (State a lump sum, percentage of Cost of the Work or other provision for determining the Construction Manager's Fee.)
JThe^Coi^ ' •shdl be fixed as a lump s^aflhe establishment of Ae GMP. l;:...^ ~ • . .
§ 5.1.2 The method of adjustment of the Construction Manager's Fee for changes in the Work:
§ 5.1.3 Limitations, if any, on a Subcontractor's overhead and profit for increases in the cost of its portion of the Work:
§ 5.1.4 Rental rales for Construction Manager-owned equipment shall not exceed '<<- » percent (<< » %) of the standard rate paid at the place of the Project. § 5.1.5 Unit prices, if any:
(Identify and state the unit price; state the quantity limitations, if any, to which the unit price will be applicable.)
Item _ _ Units¡ and Limitations Price per Unit ($0.00)
§ 5.2 Guaranteed Maximum Price § 5.2.1 The Construction Manager guarantees that the Contract Sum shall not exceed the Guaranteed Maximum Price set forth in the Guaranteed Maximum Price Amendment, as it is amended from time to time. To the extent the Cost of the Work exceeds the Guaranteed Maximum Price, the Construction Manager shall bear such costs in excess of the Guaranteed Maximum Price without reimbursement or additional compensation from the Owner. (Insert specific provisions if the Constniction Manager is to participate in any savings.)
Any project savings shall be returned to the owner at the completion of the project.
§ 5.2.2 The Guaranteed Maximum Price is subject to additions and deductions by Change Order as provided in the Contract Documents and the Date of Substantial Completion shall be subject to adjustment as provided in the Contract Documents.
§ 5.3 Changes in the Work § 5.3.1 The Owner may, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions. The Owner shall issue such changes in writing. The Architect may make minor changes in the Work as provided in Section 7.4 of AIA Document A201-2007, General Conditions of the Contract for Construction. The Construction Manager shall be entitled to an equitable adjustment in the Contract Time as a result of changes in the Work.
Page 7 of 16 § 5.3.2 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of the Guaranteed Maximum Price Amendment may be determined by any of the methods listed in Section 7.3.3 of A1A Document A201-2007, General Conditions of the Contract for Construction.
§ 5.3.3 In calculating adjustments to subcontracts (except those awarded with the Owner's prior consent on the basis of cost plus a fee), the terms "cost" and "fee" as used in Section 7.3.3.3 of AIA Document A201-2007 and the term "costs" as used in Section 7.3.7 of AIA Document A201-2007 shall have the meanings assigned to them in AIA Document A201-2007 and shall not be modified by Sections 5.1 and 5.2, Sections 6.1 through 6.7, and Section 6.8 of this Agreement. Adjustments to subcontracts awarded with the Owner's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts.
§ 5.3.4 In calculating adjustments to the Guaranteed Maximum Price, the terms "cost" and "costs" as used in the above-referenced provisions of AIA Document A201-2007 shall mean the Cost of the Work as defined in Sections 6. i to 6.7 of this Agreement and the term "fee" shall mean the Construction Manager's Fee as defined in Section 5.1 of this Agreement.
§ 5.3.5 If no specific provision is made in Section 5.1.2 for adjustment of the Construction Manager's Fee in the case of changes in the Work, or if the extent of such changes is such, in the aggregate, that application of the adjustment provisions of Section 5.1.2 will cause substantial inequity to the Owner or Construction Manager, the Construction Manager's Fee shall be equitably adjusted on the same basis that was used to establish the Fee for the original Work, and the Guaranteed Maximum Price shall be adjusted accordingly.
ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE § 6.1 Costs to Be Reimbursed § 6.1.1 The term Cost of the Work shall mean costs necessarily incurred by the Construction Manager in the proper performance of the Work. Such costs shall be at rates not higher than die standard paid at the place of the Project except with prior consent of the Owner. The Cost of the Work shall include only the items set forth in Sections 6.1 through 6.7.
§ 6.1.2 Where any cost is subject to the Owner's prior approval, the Construction Manager shall obtain this approval prior to incurring the cost. The parties shall endeavor to identify any such costs prior to executing Guaranteed Maximum Price Amendment.
§ 6.2 Labor Costs § 6.2.1 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner's prior approval, at off-site workshops.
§ 6.2.2 Wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at the site with the Owner's prior approval. (If ii is intended that the wages or salaries of certain personnel stationed at the Construction Manager's principal or other offices shall be included in the Cost of the Work, identify in Section 11.5, the personnel to be included, whether for all or only part of their time, and the rates at which their time will be charged to the Work.)
§ 6.2.3 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work.
§ 6.2.4 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work under Sections 6.2.1 through 6.2.3.
§ 6.2.5 Bonuses, profit sharing, incentive compensation and any other discretionary payments paid to anyone hired by the Construction Manager or paid to any Subcontractor or vendor, with the Owner's prior approval.
PageS of 16 § 6.3 Subcontract Costs Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts.
§ 6.4 Costs of Materials and Equipment Incorporated in the Completed Construction § 6.4.1 Costs, inciuding transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction.
§ 6.4.2 Costs of materials described in the preceding Section 6.4.1 in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become the Owner's property at the completion of the Work or, at the Owner's option, shall be sold by the Construction Manager. Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work.
§ 6.5 Costs of Other Materials and Equipment, Temporary Facilities and Related Items § 6.5.1 Costs of transportation, storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers that are provided by the Construction Manager at the site and fully consumed in the performance of the Work. Costs of materials, supplies, temporary facilities, machinery, equipment and tools that are not fully consumed shall be based on the cost or value of the item at the time it is first used on the Project site less the value of the item when it is no longer used at the Project site. Costs for items not fully consumed by the Construction Manager shall mean fair market value.
§ 6.5.2 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers that are provided by die Construction Manager at the site and costs of transportation, installation, minor repairs, dismantling and removal. The total rental cost of any Construction Manager-owned item may not exceed the purchase price of any comparable item. Rates of Construction Manager-owned equipment and quantities of equipment shall be subject to the Owner's prior approval.
§ 6.5.3 Costs of removal of debris from the site of the Work and its proper and legal disposal.
§ 6.5.4 Costs of document reproductions, facsimile transmissions and long-distance telephone calls, postage and parcel delivery charges, telephone service at the site and reasonable petty cash expenses of the site office.
§ 6.5.5 That portion of the reasonable expenses of the Construction Manager's supervisory or administrative personnel incurred while traveling in discharge of duties connected with the Work.
§ 6.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, subject to the Owner's prior approval.
§ 6.6 Miscellaneous Costs § 6.6.1 Premiums for that portion of insurance and bonds required by the Contract Documents that can be directly attributed to this Contract. Self-insurance for either full or partial amounts of the coverages required by the Contract Documents, with the Owner's prior approval.
§ 6.6.2 Sales, use or similar taxes imposed by a governmental authority that are related to the Work and for which the Construction Manager is liable.
§ 6.6.3 Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay.
§ 6.6.4 Fees of laboratories for tests required by the Contract Documents, except those related to defective or nonconforming Work for which reimbursement is excluded by Section 13.5.3 of AIA Document A201-2007 or by other provisions of the Contract Documents, and which do not fall within the scope of Section 6.7.3.
§ 6.6.5 Royalties and license fees paid for the use of a particular design, process or product required by die Contract Documents; the cost of defending suits or claims for infringement of patent rights arising from such requirement of
Page 9 of 16 the Contract Documents; and payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the Owner's consent. However, such costs of legal defenses, judgments and settlements shall not be included in the calculation of the Construction Manager's Fee or subject to the Guaranteed Maximum Price. If such royalties, fees and costs are excluded by the last sentence of Section 3.17 of ALA Document A201-2007 or other provisions of the Contract Documents, then they shall not be included in the Cost of the Work.
§ 6.6.6 Costs for electronic equipment and software, directly related to the Work with the Owner's prior approval.
§ 6.6.7 Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility in the Contract Documents.
§6.6.8 intentionally omitted. 6,6.9 Subject to the Owner's prior approval, expenses incurred in accordance with the Construction Manager's standard written personnel policy for relocation and temporary living allowances of the Construction Manager's personnel required for the Work.
§ 6.7 Other Costs and Emergencies § 6.7,1 Other costs incurred in the performance of the Work if, and to the extent, approved in advance in writing by the Owner.
§ 6.7.2 Costs incurred in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in Section 10.4 of AIA Document A201-2007.
§ 6.7.3 Costs of repairing or correcting damaged or nonconforming Work executed by the Construction Manager, Subcontractors or suppliers, provided that such damaged or nonconforming Work was not caused by negligence or failure to fulfill a specific responsibility of the Construction Manager and only to the extent that the cost of repair or correction is not recovered by the Construction Manager from insurance, sureties, Subcontractors, suppliers, or others.
§ 6.7.4 The costs described in Sections 6.1 through 6.7 shall be included in the Cost of tine Work, notwithstanding any provision of AIA Document A201-2007 or other Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Section 6.8.
§ 6.8 Costs Not To Be Reimbursed § 6.8.1 The Cost of the Work shall not include the items listed below: .1 Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office, except as specifically provided in Section 6.2, or as may be provided in Article 11; .2 Expenses of the Construction Manager's principal office and offices other than the site office; .3 Overhead and general expenses, except as may be expressly included in Sections 6.1 to 6.7; .4 The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work; .5 Except as provided in Section 6.7.3 of this Agreement, costs due to the negligence or failure of the Construction Manager, Subcontractors and suppliers or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable to fulfill a specific responsibility of the Contract; .6 Any cost not specifically and expressly described in Sections 6.1 to 6.7; .7 Costs, other than costs included in Change Orders approved by the Owner, that would cause the Guaranteed Maximum Price to be exceeded; and ,8 Costs for services incurred during the Preconstruction Phase.
§ 6.9 Discounts, Rebates and Refunds § 6.9.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (1) before making the payment, the Construction Manager included them in an Application for Payment and received payment from the Owner, or (2) the Owner has deposited funds with the Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and
Page 10 of 16 amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Construction Manager shall make provisions so that they can be obtained.
§ 6.9.2 Amounts that accrue to the Owner in accordance with the provisions of Section 6.9.1 shall be credited to the Owner as a deduction from the Cost of the Work.
§ 6.10 Related Party Transactions §6.10.1 For purposes of Section 6.10, the term "related party" shall mean a parent, subsidiary, affiliate or other entity having common ownership or management with the Construction Manager; any entity in which any stockholder in, or management employee of, the Construction Manager owns any interest in excess of ten percent in the aggregate; or any person or entity which has the right to control the business or affairs of the Construction Manager. The term "related party" includes any member of the immediate family of any person identified above.
§ 6.10.2 If any of the costs to be reimbursed arise from a transaction between the Construction Manager and a related party, the Construction Manager shall notify the Owner of the specific nature of the contemplated transaction, including the identity of the related party and the anticipated cost to be incurred, before any such transaction is consummated or cost incurred. If the Owner, after such notification, authorizes the proposed transaction, then the cost incurred shall be included as a cost to be reimbursed, and the Construction Manager shall procure the Work, equipment, goods or service from the related party, as a Subcontractor, according to the terms of Sections 2.3.2.1, 2.3.2.2 and 2.3.2.3. If the Owner fails to authorize the transaction, the Construction Manager shall procure the Work, equipment, goods or service from some person or entity other than a related party according to the terms of Sections 2.3.2.1,2.3.2.2 and 2.3.2.3.
§ 6.11 Accounting Records The Construction Manager shall keep full and detailed records and accounts related to the cost of the Work and exercise such controls as may be necessary for proper financial management under this Contract and to substantiate all costs incurred. The accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner's auditors shall, during regular business hours and upon reasonable notice, be afforded access to, and shall be permitted to audit and copy, the Construction Manager's records and accounts, including complete documentation supporting accounting entries, books, correspondence, instructions, drawings, receipts, subcontracts, Subcontractor's proposals, purchase orders, vouchers, memoranda and other data relating to this Contract. The Construction Manager shall preserve these records for a period of three years after final payment, or for such longer period as may be required by law.
ARTICLE 7 PAYMENTS FOR CONSTRUCTION PHASE SERVICES § 7.1 Progress Payments § 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents.
§ 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows:
§ 7.1.3 Provided that an Application for Payment is received by the Architect not later than the <<25th » day of a month, the Owner shall make payment of the certified amount to the Construction Manager not later than the <<25th » day of the «following » month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the Owner not later than «thirty >> ( <<30 >>) days after the Architect receives the Application for Payment. (Federal, state or local laws may require payment within a certain period of time.)
§ 7.1.4 With each Application for Payment, the Construction Manager shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed progress payments already received by the Construction Manager, less that portion of
Page 11 of 16 those payments attributable to the Construction Manager's Fee, plus payrolls for the period covered by the present Application for Payment.
§ 7.1.5 Each Application for Payment shall be based on the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment.
§ 7.1.6 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage of completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed, or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by the Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values.
§ 7.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section 7.3.9 of AIA Document A201-2007; .2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work, or if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing; .3 Add the Construction Manager's Fee, less retainage of «five. _>> percent (<<5 » %). The Construction Manager's Fee shall be computed upon the Cost of the Work at the rate stated in Section 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Section, shall be an amount that bears the same ratio to that fixed-sum fee as the Cost of the Work bears to a reasonable estimate of the probable Cost of the Work upon its completion; .4 Subtract retainage of «five,. >> percent ( « 5 » %} from that portion of the Work that the Construction Manager self-performs; .5 Subtract the aggregate of previous payments made by the Owner; .6 Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Section 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's auditors in such documentation; and .7 Subtract amounts, if any, for which the Architect has witliheld or nullified a Certificate for Payment as provided in Section 9.5 of AIA Document A201-2007.
§ 7.1.8 The Owner and Construction Manager shall agree upon (1) a mutually acceptable procedure for review and approval of payments to Subcontractors and (2) the percentage of retainage held on Subcontracts, and the Construction Manager shall execute subcontracts in accordance with those agreements.
§ 7.1.9 Except with the Owner's prior approval, the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site.
§ 7.1.10 In taking action on the Construction Manager's Applications for Payment, the Architect shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be deemed to represent that the Architect has made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Section 7.1.4 or other supporting data; that the Architect has made exhaustive or continuous on-site inspections; or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such
Page 12 of 16 examinations, audits and verifications, if required by the Owner, will be performed by the Owner's auditors acting in the sole interest of the Owner.
§ 7.2 Final Payment § 7.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Construction Manager when .1 the Construction Manager has fully performed the Contract except for the Construction Manager's responsibility to correct Work as provided in Section 12.2.2 of AIA Document A201-2007, and to satisfy other requirements, if any, which extend beyond final payment; .2 the Construction Manager has submitted a final accounting for the Cost of the Work and a final Application for Payment; and .3 a final Certificate for Payment has been issued by the Architect.
The Owner's final payment to the Construction Manager shall be made no later than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows:
§ 7.2.2 The Owner's auditors will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager. Based upon such Cost of the Work as the Owner's auditors report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Section 7.2.1 have been met, the Architect will, within seven days after receipt of the written report of the Owner's auditors, either issue to the Owner a final Certificate for Payment with a copy to the Construction Manager, or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Section 9.5.1 of the AIA Document A201-2007. The time periods stated in this Section supersede those stated in Section 9.4.1 of the AIA Document A201-2007. The Architect is not responsible for verifying the accuracy of the Construction Manager's final accounting.
§ 7.2.3 If the Owner's auditors report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to request mediation of the disputed amount without seeking an initial decision pursuant to Section 15.2 of A201- 2007. A request for mediation shall be made by the Construction Manager within 30 days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to request mediation within this 30-day period shall result in the substantiated amount reported by the Owner's auditors becoming binding on the Construction Manager. Pending a final resolution of the disputed amount, the Owner shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment.
§ 7.2.4 If, subsequent to final payment and at the Owner's request, the Construction Manager incurs costs described in Section 6.1.1 and not excluded by Section 6.8 to correct defective or nonconforming Work, the Owner shall reimburse the Construction Manager such costs and the Construction Manager's Fee applicable thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings as provided in Section 5.2.1, the amount of such savings shall be recalculated and appropriate credit given to the Owner in determining the net amount to be paid by the Owner to the Construction Manager.
ARTICLE 8 INSURANCE AND BONDS For all phases of the Project, the Construction Manager shall purchase and maintain insurance, and the Construction Manager shall provide bonds as set forth in Article 11 of AIA Document A201-2007. (State bonding requirements, if any, and limits of liability for insurance required in Article 11 of AIA Document A201-2007.)
Type of Insurance or Bond Lirrut of Liability or Bond Amount ($0.00) Performance & Payment Bonds. :ÎÖÖWbf œrataçûcm'GÍMÍP" ' Automobile Liability 1$ a ,000,000100 each accident Commercial' General Liability !$ 1,000-000.00 each occurrence, S 2,000,000.00 Aggregate :.Gener^ i$;iTOQMQQ.4 Page 13 of 16 Property Insurance shall be by owner •$ 1,000.00 deductible per occurence ARTICLE 9 DISPUTE RESOLUTION § 9.1 Any Claim between the Owner and Construction Manager shall be resolved in accordance with the provisions set forth in this Article 9 and Article 15 of A201-2007. However, for Claims arising from or relating to the Construction Manager's Preconstruction Phase services, no decision by the Initial Decision Maker shall be required as a condition precedent to mediation or binding dispute resolution, and Section 9.3 of this Agreement shall not apply. § 9.2 For any Claim subject to, but not resolved by mediation pursuant to Section 15.3 of AIA Document A201- 2007, the method of binding dispute resolution shall be as follows: (Check the appropriate box. if the Owner and Construction Manager do not select a method of binding dispute resolution below, or do not subsequently agree in writing to a binding dispute resolution method other than litigation, Claims will be resolved by litigation in a court of competent jurisdiction.) [ «X » ] Litigation in New Hampshire Superior Court Hillsborough South § 9.3 Initial Decision Maker The Architect will serve as the Initial Decision Maker pursuant to Section 15.2 of AIA Document A201-2007 for Claims arising from or relating to the Construction Manager's Construction Phase services, unless the parties appoint below another individual, not a party to the Agreement, to serve as the Initial Decision Maker. (If the parties mutually agree, insert the name, address and other contact infonnation of the Initial Decision Maker, if other than the Architect.) • • *. • — * • . •••: • • -. • . • • •• ARTICLE 10 TERMINATION OR SUSPENSION § 10.1 Termination Prior to Establishment of the Guaranteed Maximum Price § 10.1.1 Prior to the execution of the Guaranteed Maximum Price Amendment, the Owner may terminate this Agreement upon not less than seven days' written notice to the Construction Manager for the Owner's convenience and without cause, and the Construction Manager may terminate this Agreement, upon not less than seven days' written notice to the Owner, for the reasons set forth in Section 14.1.1 of A201-2007. § 10.1.2 In the event of termination of this Agreement pursuant to Section 10.1.1, the Construction Manager shall be equitably compensated for Preconstruction Phase services performed prior to receipt of a notice of termination. In no event shall the Construction Manager's compensation under this Section exceed the compensation set forth in Section 4.1. § 10.1.3 If the Owner terminates the Contract pursuant to Section 10.1.1 after the commencement of the Construction Phase but prior to the execution of the Guaranteed Maximum Price Amendment, the Owner shall pay to the Construction Manager an amount calculated as follows, which amount shall be in addition to any compensation paid to the Construction Manager under Section 10.1.2: .1 Take the Cost of the Work incurred by the ConsU'uction Manager to the date of termination; .2 Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Section 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Section, an amount that bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion; and .3 Subtract the aggregate of previous payments made by the Owner for Construction Phase services. The Owner shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is Page 14 of 16 not otherwise included in the Cost of the Work under Section 10.1.3.1. To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a condition of receiving the payments referred to in this Article 10, execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontracts or purchase orders. All Subcontracts, purchase orders and rental agreements entered into by the Construction Manager will contain provisions allowing for assignment to the Owner as described above. If the Owner accepts assignment of subcontracts, purchase orders or rental agreements as described above, the Owner will reimburse or indemnify the Construction Manager for all costs arising under the subcontract, purchase order or rental agreement, if those costs would have been reimbursable as Cost of the Work if the contract had not been terminated. If the Owner chooses not to accept assignment of any subcontract, purchase order or rental agreement that would have constituted a Cost of the Work had this agreement not been terminated, the Construction Manager will terminate the subcontract, purchase order or rental agreement and the Owner will pay the Construction Manager the costs necessarily incurred by the Construction Manager because of such termination. § 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price Following execution of the Guaranteed Maximum Price Amendment and subject to the provisions of Section 10.2.1 and 10.2.2 below, the Contract may be terminated as provided in Article 14 of AIA Document A201-2007. § 10.2.1 If the Owner terminates the Contract after execution of the Guaranteed Maximum Price Amendment, the amount payable to the Construction Manager pursuant to Sections 14.2 and 14.4 of A201-2007 shall not exceed the amount the Construction Manager would otherwise have received pursuant to Sections 10.1.2 and 10.1.3 of this Agreement. § 10.2,2 If the Construction Manager terminates the Contract after execution of the Guaranteed Maximum Price Amendment, the amount payable to the Construction Manager under Section 14.1.3 of A201-2007 shall not exceed the amount the Construction Manager would otherwise have received under Sections 10.1.2 and 10.1.3 above, except that the Construction Manager's Fee shall be calculated as if the Work had been fully completed by the Construction Manager, utilizing as necessary a reasonable estimate of the Cost of the Work for Work not actually completed. § 10.3 Suspension The Work may be suspended by the Owner as provided in Article 14 of AIA Document A201-2007. In such case, the Guaranteed Maximum Price and Contract Time shall be increased as provided in Section 14.3.2 of AIA Document A201-2007, except that the term "profit" shall be understood to mean the Construction Manager's Fee as described in Sections 5.1 and 5.3.5 of this Agreement. ARTICLE 11 MISCELLANEOUS PROVISIONS § 11.1 Terms in this Agreement shall have the same meaning as those in A201-2007. §11.2 Ownership and Use of Documents Section 1.5 of A201-2007 shall apply to both the Preconstruction and Construction Phases, §11.3 Governing Law Section 13.1 of A201-2007 shall apply to both the Preconstruction and Construction Phases. §11.4 Assignment The Owner and Construction Manager, respectively, bind themselves, their agents, successors, assigns and legal representatives to this Agreement. Neither the Owner nor the Construction Manager shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement to a lender providing financing for the Project if the lender agrees to assume the Owner's rights and obligations under this Agreement. Except as provided in Section 13.2.2 of A201-2007, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. Page 15 of 16 §11.5 Other provisions: ARTICLE 12 SCOPE OF THE AGREEMENT §12.1 This Agreement represents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Construction Manager, § 12.2 The following documents comprise the Agreement: .1 AIA Document A133-2009, Standard Form of Agreement between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work plus a Fee with a Guaranteed Maximum Price .2 AIA Document A201-2007, General Conditions of the Contract for Construction .3 Letter of Intent Dated September 10, 2019 .4 AIA Document E201 ™-2007, Digital Data Protocol Exhibit, if completed, or the following: .5 A1A Document E202™-2008, Building Information Modeling Protocol Exhibit, if completed, or the following: « » .6 Other documents: (List other documents, if any, forming part of the Agreement.) « -List,bid; documents »(These A once; developed ) This Agreement is entered into as of the day and year first written above. OWNER (Signature) CONSTRUCTION MANAGER (Signature) «James Wl Donchess, Mayor Peter Middleton, President (Printed name and title) (Printed name and title) Page 16 of 16 AIA Document A201-2007 General Conditions of the Contract for Construction AIA Document A201-2007 General Conditions of the Contract for Construction For the following PROJECT: Public Health Renovation Project, 18 Mulberry Street, Nashua NH OWNER: The City of Nashua 229 Main Street, Nashua, NH CONSTRUCTION MANAGER: Martini Northern, LL 299 Hanover Street, Portsmouth, NH 03801 ARCHITECT: Dennis Mires The Architects, P.A. 697 Union Street Manchester, NH 03104 ARTICLE 1 GENERAL PROVISIONS §1.1 BASIC DEFINITIONS §1.1.1 THE CONTRACT DOCUMENTS The Contract Documents are enumerated in the Agreement between the Owner and Contractor (hereinafter the Agreement) and consist of the Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Agreement and Modifications issued after execution of the Contract. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Architect and agreed to in writing by the Owner. Unless specifically enumerated in the Agreement, the Contract Documents include the advertisement or invitation to bid, Instructions to Bidders, sample forms, other information furnished by the Owner in anticipation of receiving bids or proposals, the Contractor's bid or proposal, or portions of Addenda relating to bidding requirements. §1.1.2 THE CONTRACT The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Conu-act may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Contractor and the Architect or the Architect's consultants, (2) between the Owner and a Subcontractor or a Sub-subcontractor, (3) between the Owner and the Architect's consultants or (4) between any persons or entities other than the Owner and the Contractor. The Architect shall, however, be entitled to performance and enforcement of obligations under the Contract intended to facilitate performance of the Architect's duties. §1.1.3 THE WORK The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. §1.1.4 THE PROJECT The Project is the total construction of which the Work performed under die Contract Documents may be the whole or a part and which may include construction by the Owner and by separate contractors. §1.1.5 THE DRAWINGS The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. Page 1 of 16 §1.1.6 THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. § 1.1.7 INSTRUMENTS OF SERVICE Instruments of Service are representations, in any medium of expression now known or later developed, of the tangible and intangible creative work performed by the Architect and the Architect's consultants under their respective professional services agreements. Instruments of Service may include, without limitation, studies, surveys, models, sketches, drawings, specifications, and other similar materials. §1.1.8 INITIAL DECISION MAKER The Initial Decision Maker is the person identified in the Agreement to render initial decisions on Claims in accordance with Section 15.2 and certify termination of the Agreement under Section 14.2.2. §1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS § 1.2.1 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; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. § 1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. § 1.2.3 Unless otherwise stated in the Contract Documents, words that have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. §1.3 CAPITALIZATION Terms capitalized in these General Conditions include those that are (1) specifically defined, (2) the titles of numbered articles or (3) the titles of other documents published by the American Institute of Architects. §1.4 INTERPRETATION In the interest of brevity the Contract Documents frequently omit modifying words such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. §1.5 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE § 1.5.1 The Architect and the Architect's consultants shall be deemed the authors of their respective Instruments of Service, including the Drawings and Specifications,. The Contractor, Subcontractors, Sub-subcontractors, and material or equipment suppliers shall not own or claim a copyright in the Instruments of Service. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Architect's or Architect's consultants' reserved rights. § 1.5.2 The Contractor, Subcontractors, Sub-subcontractors and material or equipment suppliers are authorized to use and reproduce the Instruments of Service provided to them solely and exclusively for execution of the Work. All copies made under this authorization shall bear the copyright notice, if any, shown on the Instruments of Service. The Contractor, Subcontractors, Sub-subcontractors, and material or equipment suppliers may not use the Instruments of Service on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner, Architect and the Architect's consultants. § 1.6 TRANSMISSION OF DATA IN DIGITAL FORM If the parties intend to transmit Instruments of Service or any other information or documentation in digital form, they shall endeavor to establish necessary protocols governing such transmissions, unless otherwise already provided in the Agreement or the Contract Documents. Page 2 of 16 ARTICLE 2 OWNER § 2.1 GENERAL § 2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner's approval or authorization. Except as otherwise provided in Section 4.2.1, the Architect does not have such authority. The term "Owner" means the Owner or the Owner's authorized representative. § 2.1.2 The Owner shall furnish to the Contractor within thirty days after receipt of a written request, information necessary and relevant for the Contractor to evaluate, give notice of or enforce mechanic's lien rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site, and the Owner's interest therein. § 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER § 2.2.1 Prior to commencement of the Work, the Contractor may request in writing that the Owner provide reasonable evidence that the Owner has made financial arrangements to fulfill the Owner's obligations under the Contract. Thereafter, the Contractor may only request such evidence if (1) the Owner fails to make payments to the Contractor as the Contract Documents require; (2) a change in the Work materially changes the Contract Sum; or (3) the Contractor identifies in writing a reasonable concern regarding the Owner's ability to make payment when due. The Owner shall furnish such evidence as a condition precedent to commencement or continuation of the Work or the portion of the Work affected by a material change. After the Owner furnishes the evidence, the Owner shall not materially vary such financial arrangements without prior notice to the Contractor. § 2.2.2 Except for permits and fees that are the responsibility of the Contractor under the Contract Documents, including those required under Section 3.7.1, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. § 2.2.3 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work. § 2.2.4 The Owner shall furnish information or services required of the Owner by the Contract Documents with reasonable promptness. The Owner shall also furnish any other information or services under the Owner's control and relevant to the Contractor's performance of the Work with reasonable promptness after receiving the Contractor's written request for such information or services. § 2.2.5 Unless otherwise provided in the Contract Documents, the Owner shall furnish to the Contractor one copy of the Contract Documents for purposes of making reproductions pursuant to Section 1.5.2. § 2.3 OWNER'S RIGHT TO STOP THE WORK If the Contractor fails to correct Work that is not in accordance with the requirements of the Contract Documents as required by Section 12.2 or repeatedly fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Section 6.1.3. § 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a ten-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including Owner's expenses and compensation for the Architect's additional services made necessary by such default, neglect Page 3 of 16 or failure. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall promptly pay the difference to the Owner. ARTICLE 3 CONTRACTOR § 3.1 GENERAL § 3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Contractor shall be lawfully licensed, if required in the jurisdiction where the Project is located. The Contractor shall designate in writing a representative who shall have express authority to bind the Contractor with respect to all matters under this Contract. The term "Contractor" means the Contractor or the Contractor's authorized representative. § 3.1,2 The Contractor shall perform the Work in accordance with the Contract Documents. §3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or performed by persons or entities other than the Contractor. § 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR § 3.2.1 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. § 3.2.2 Because the Contract Documents are complementary, the Contractor shall, before starting each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of the Work, as well as the information furnished by the Owner pursuant to Section 2.2.3, shall take field measurements of any existing conditions related to that portion of the Work, and shall observe any conditions at die site affecting it. These obligations are for the purpose of facilitating coordination and construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the Architect any errors, inconsistencies or omissions discovered by or made known to the Contractor as a request for information in such form as the Architect may require. It is recognized that die Contractor's review is made in the Contractor's capacity as a contractor and not as a licensed design professional, unless otherwise specifically provided in the Contract Documents. § 3.2.3 The Contractor is not required to ascertain that the Contract Documents are in accordance widi applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, but the Contractor shall promptly report to the Architect any nonconformity discovered by or made known to the Contractor as a request for information in such form as the Architect may require. § 3.2.4 If the Contractor believes that additional cost or time is involved because of clarifications or instructions the Architect issues in response to the Contractor's notices or requests for information pursuant to Sections 3.2.2 or 3.2.3, the Contractor shall make Claims as provided in Article 15. If the Contractor fails to perform the obligations of Sections 3.2.2 or 3.2.3, the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations. If the Contractor performs those obligations, the Contractor shall not be liable to the Owner or Architect for damages resulting from errors, inconsistencies or omissions in the Contract Documents, for differences between field measurements or conditions and the Contract Documents, or for nonconformities of the Contract Documents to applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities. § 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES § 3.3.1 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 under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, Page 4 of 16 methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. § 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for, or on behalf of, the Contractor or any of its Subcontractors. § 3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. § 3.4 LABOR AND MATERIALS § 3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. § 3.4.2 Except in the case of minor changes in the Work authorized by the Architect in accordance with Sections 3.12.8 or 7.4, the Contractor may make substitutions only with the consent of the Owner, after evaluation by the Architect and in accordance with a Change Order or Construction Change Directive. § 3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Work. The Contractor shall not permit employment of unfit persons or persons not properly skilled in tasks assigned to them. § 3.5 WARRANTY The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract Documents and will be free from defects, except for those inherent in the quality of the Work the Contract Documents require or permit. Work, materials, or equipment not conforming to these requirements may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, alterations to the Work not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. § 3.6 TAXES The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the Contractor that are legally enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to go into effect. § 3.7 PERMITS, FEES, NOTICES AND COMPLIANCE WITH LAWS § 3.7.1 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building permit as well as for other permits, fees, licenses, and inspections by government agencies necessary for proper execution and completion of the Work that are customarily secured after execution of the Contract and legally required at the time bids are received or negotiations concluded. § 3.7.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities applicable to performance of the Work. § 3.7.3 If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, the Contractor shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction. § 3.7.4 Concealed or Unknown Conditions, if the Contractor encounters conditions at the site that are (1) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Page 5 of 16 Contract Documents, the Contractor shall promptly provide notice to the Owner and the Architect before conditions are disturbed and in no event later than 21 days after first observance of the conditions. The Architect will promptly investigate such conditions and, if the Architect determines that they differ materially and cause an increase or decrease in the Contractor's cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Architect determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the tenns of the Contract is justified, the Architect shall promptly notify the Owner and Contractor in writing, stating the reasons. If either party disputes the Architect's determination or recommendation, that party may proceed as provided in Article 15. § 3.7.5 If, in the course of the Work, the Contractor encounters human remains or recognizes the existence of burial markers, archaeological sites or wetlands not indicated in the Contract Documents, the Contractor shall immediately suspend any operations that would affect them and shall notify the Owner and Architect. Upon receipt of such notice, the Owner shall promptly take any action necessary to obtain governmental authorization required to resume the operations. The Contractor shall continue to suspend such operations until otherwise instructed by the Owner but shall continue with all other operations that do not affect those remains or features. Requests for adjustments in the Contract Sum and Contract Time arising from the existence of such remains or features may be made as provided in Article 15. § 3.8 ALLOWANCES §3.8.1 The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable objection. § 3.8.2 Unless otherwise provided in the Contract Documents, .1 Allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and all required taxes, less applicable trade discounts; .2 Contractor's costs for unloading and handling at the site, labor, installation costs, overhead, profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; and .3 Whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Section 3.8.2.1 and (2) changes in Contractor's costs under Section 3.8.2.2. § 3.8.3 Materials and equipment under an allowance shall be selected by the Owner with reasonable promptness. §3.9 SUPERINTENDENT § 3.9.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. § 3.9,2 The Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the Owner through the Architect the name and qualifications of a proposed superintendent. The Architect may reply within 14 days to the Contractor in writing stating (1) whether die Owner or the Architect has reasonable objection to the proposed superintendent or (2) that the Architect requires additional time to review. Failure of the Architect to reply within the 14 day period shall constitute notice of no reasonable objection. § 3.9.3 The Contractor shall not employ a proposed superintendent to whom the Owner or Architect has made reasonable and timely objection. The Contractor shall not change the superintendent without the Owner's consent, which shall not unreasonably be withheld or delayed. § 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES § 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's and Architect's information a Contractor's construction schedule for the Work. The schedule shall not exceed time limits Page 6 of 16 current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. § 3.10.2 The Contractor shall prepare a submittal schedule, promptly after being awarded die Contract and thereafter as necessary to maintain a current submittal schedule, and shall submit the schedule(s) for the Architect's approval. The Architect's approval shall not unreasonably be delayed or withheld. The submittal schedule shall (1) be coordinated with the Contractor's construction schedule, and (2) allow the Architect reasonable time to review submittals. If the Contractor fails to submit a submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of Contract Time based on the time required for review of submittals. § 3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the Owner and Architect. § 3.11 DOCUMENTS AND SAMPLES AT THE SITE The Contractor shall maintain at the site for the Owner one copy of the Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to indicate field changes and selections made during construction, and one copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Architect and shall be delivered to the Architect for submittal to the Owner upon completion of the Work as a record of the Work as constructed. § 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES § 3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. § 3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. § 3.12.3 Samples are physical examples that illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. § 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. Their purpose is to demonstrate the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents for those portions of the Work for which the Contract Documents require submittals. Review by the Architect is subject to the limitations of Section 4.2.7. Informational submittals upon which die Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals that are not required by the Contract Documents may be returned by the Architect without action. § 3.12.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents in accordance with the submittal schedule approved by the Architect or, in the absence of an approved submittal schedule, with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. § 3.12,6 By submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents to the Owner and Architect that the Contractor has (1) reviewed and approved them, (2) determined and verified materials, field measurements and field construction criteria related thereto, or will do so and (3) checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. § 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect. Page 7 of 16 § 3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by the Architect's approval thereof § 3.12,9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the Architect on previous submittals. In the absence of such written notice, the Architect's approval of a resubmission shall not apply to such revisions. § 3.12.10 The Contractor shall not be required to provide professional services that constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and design criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and sea! shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect. The Owner and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications and approvals performed or provided by such design professionals, provided the Owner and Architect have specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this Section 3.12.10, the Architect will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance and design criteria specified in the Contract Documents. §3.13 USE OF SITE The Contractor shall confine operations at the site to areas permitted by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. § 3.14 CUTTING AND PATCHING § 3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. All areas requiring cutting, fitting and patching shall be restored to the condition existing prior to the cutting, fitting and patching, unless otherwise required by the Contract Documents. § 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractors consent to cutting or otherwise altering the Work. §3.15 CLEANING UP § 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus materials from and about the Project. Page 8 of 16 § 3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and Owner shall be entitled to reimbursement from the Contractor. §3.16 ACCESS TO WORK The Contractor shall provide the Owner and Architect access to the Work in preparation and progress wherever located. § 3.17 ROYALTIES, PATENTS AND COPYRIGHTS The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents, or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the Owner or Architect. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect. §3.18 INDEMNIFICATION § 3.18.1 To the fullest extent permitted by law the Contractor shall indemnify and hold harmless the Owner, Architect, Architect's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than die Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to a party or person described in this Section 3.18. § 3.18.2 In claims against any person or entity indemnified under this Section 3.18 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Section 3.18.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts. ARTICLE 4 ARCHITECT § 4.1 GENERAL § 4.1.1 The Owner shall retain an architect lawfully licensed to practice architecture or an entity lawfully practicing architecture in the jurisdiction where the Project is located. That person or entity is identified as the Architect in the Agreement and is referred to throughout the Contract Documents as if singular in number. § 4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner, Contractor and Architect. Consent shall not be unreasonably withheld. § 4.1.3 If the employment of the Architect is terminated, the Owner shall employ a successor architect as to whom the Contractor has no reasonable objection and whose status under the Contract Documents shall be that of the Architect. § 4.2 ADMINISTRATION OF THE CONTRACT § 4.2.1 The Architect will provide administration of the Contract as described in the Contract Documents and will be an Owner's representative during construction until the date the Architect issues the final Certificate for Payment. The Architect will have authority to act on behalf of the Owner only to die extent provided in the Contract Documents. Page 9 of 16 § 4.2.2 The Architect will visit the site at intervals appropriate to the stage of construction, or as otherwise agreed with the Owner, to become generally familiar with the progress and quality of the portion of the Work completed, and to determine in general if the Work observed is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect will not have control over, charge of, or responsibility for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents, except as provided in Section 3.3.1. § 4.2.3 On the basis of the site visits, the Architect will keep the Owner reasonably informed about the progress and quality of the portion of the Work completed, and report to the Owner (1) known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor, and (2) defects and deficiencies observed in the Work. The Architect will not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or dieir agents or employees, or any other persons or entities performing portions of the Work. § 4.2.4 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect's consultants shall be through the Architect. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors shall be through the Owner. § 4.2.5 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. § 4.2.6 The Architect has authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable, the Architect will have authority to require inspection or testing of the Work in accordance with Sections 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or completed, However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the Work. § 4.2.7 The Architect will review and approve, or take other appropriate action upon, the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action will be taken in accordance with the submittal schedule approved by the Architect or, in the absence of an approved submittal schedule, with reasonable promptness while allowing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review of the Contractor's submittals shall not relieve the Contractor of the obligations under Sections 3.3, 3.5 and 3.12. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. § 4.2.8 The Architect will prepare Change Orders and Construction Change Directives, and may authorize minor changes in the Work as provided in Section 7.4. The Architect will investigate and make determinations and recommendations regarding concealed and unknown conditions as provided in Section 3.7.4. § 4.2.9 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of final completion; issue Certificates of Substantial Completion pursuant to Section 9.8; receive and forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Contract and Page 10 of 16 assembled by the Contractor pursuant to Section 9.10; and issue a final Certificate for Payment pursuant to Section 9.10. § 4.2.10 If the Owner and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect's responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents. § 4.2.11 The Architect will inteipret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. § 4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of, and reasonably inferable from, the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and decisions, the Architect will endeavor to secure faithful performance by both Owner and Contractor, will not show partiality to either and will not be liable for results of interpretations or decisions rendered in good faith. § 4.2.13 The Architect's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents. § 4.2.14 The Architect will review and respond to requests for information about the Contract Documents. The Architect's response to such requests will be made in writing within any time limits agreed upon or odierwise with reasonable promptness. If appropriate, the Architect will prepare and issue supplemental Drawings and Specifications in response to the requests for information. ARTICLE 5 SUBCONTRACTORS §5.1 DEFINITIONS § 5.1,1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. § 5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site. The term "Sub-subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub- subcontractor. § 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK § 5.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the Owner through the Architect the names of persons or entities (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Architect may reply within 14 days to the Contractor in writing stating (1) whether the Owner or the Architect has reasonable objection to any such proposed person or entity or (2) that the Architect requires additional time for review. Failure of the Owner or Architect to reply within the 14-day period shall constitute notice of no reasonable objection. § 5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. § 5.2.3 If the Owner or Architect has reasonable objection to a person or entity proposed by die Contractor, the Contractor shall propose another to whom the Owner or Architect has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute Subcontractor's Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. Page 11 of 16 § 5.2.4 The Contractor shall not substitute a Subcontractor, person or entity previously selected if the Owner or Architect makes reasonable objection to such substitution. § 5.3 SUBCONTRACTUAL RELATIONS By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the Owner and Architect. Each subcontract agreement shall preserve and protect the rights of the Owner and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to tire Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, die Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement that may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. § 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS § 5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner, provided that .1 assignment is effective only after termination of the Contract by the Owner for cause pursuant to Section 14.2 and only for those subcontract agreements that the Owner accepts by notifying the Subcontractor and Contractor in writing; and .2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. When the Owner accepts the assignment of a subcontract agreement, the Owner assumes the Contractor's rights and obligations under the subcontract. § 5.4.2 Upon such assignment, if the Work has been suspended for more than 30 days, the Subcontractor's compensation shall be equitably adjusted for increases in cost resulting from the suspension, § 5.4.3 Upon such assignment to the Owner under tiiis Section 5.4, the Owner may further assign the subcontract to a successor contractor or other entity. If the Owner assigns the subcontract to a successor contractor or other entity, the Owner shall nevertheless remain legally responsible for all of the successor contractor's obligations under the subcontract. ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS § 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS § 6.1.1 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 or other construction or operations on the site under Conditions of the Contract identical or substantially similar to these including those portions related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make such Claim as provided in Article 15. § 6.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. § 6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules. The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction Page 12 of 16 schedules shall then constitute the schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised. § 6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights that apply to die Contractor under the Conditions of the Contract, including, without excluding odiers, those stated in Article 3, this Article 6 and Articles 10, 11 and 12. § 6.2 MUTUAL RESPONSIBILITY §6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. § 6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, die Contractor shall, prior to proceeding with that portion of the Work, promptly report to die Architect apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. § 6.2.3 The Contractor shall reimburse the Owner for costs the Owner incurs that are payable to a separate contractor because of the Contractor's delays, improperly timed activities or defective construction. The Owner shall be responsible to the Contractor for costs the Contractor incurs because of a separate contractor's delays, improperly timed activities, damage to the Work or defective construction. § 6.2.4 The Contractor shall promptly remedy damage the Contractor wrongfully causes to completed or partially completed construction or to property of the Owner or separate contractors as provided in Section 10.2.5. § 6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Section 3.14, § 6.3 OWNER'S RIGHT TO CLEAN UP If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and the Architect will allocate the cost among those responsible. ARTICLE 7 CHANGES IN THE WORK §7.1 GENERAL § 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in die Work, subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. § 7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and Architect; a Construction Change Directive requires agreement by the Owner and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Architect alone. § 7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and die Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive or order for a minor change in the Work. § 7.2 CHANGE ORDERS § 7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and Architect stating their agreement upon all of the following: .1 The change in the Work; .2 The amount of the adjustment, if any, in the Contract Sum; and ,3 The extent of the adjustment, if any, in the Contract Time. Page IB of 30 § 7.3 CONSTRUCTION CHANGE DIRECTIVES §7.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the Owner and Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction Change Directive, without invalidating the Contract, order changes in die Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. § 7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. § 7.3.3 If die Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be based on one of die following methods: .1 Mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; .2 Unit prices stated in the Contract Documents or subsequently agreed upon; .3 Cost to be determined in a maimer agreed upon by the parties and a mutually acceptable fixed or percentage fee; or .4 As provided in Section 7.3.7. § 7.3.4 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so diat application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Contractor, the applicable unit prices shall be equitably adjusted. § 7.3.5 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. § 7.3,6 A Construction Change Directive signed by the Contractor indicates the Contractor's agreement therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order. § 7.3.7 If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the Architect shall determine the method and the adjustment on the basis of reasonable expenditures and savings of those performing the Work attributable to the change, including, in case of an increase in the Contract Sum, an amount for overhead and profit as set forth in the Agreement, or if no such amount is set forth in die Agreement, a reasonable amount. In such case, and also under Section 7.3.3.3, the Contractor shall keep and present, in such form as the Architect may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs for the purposes of this Section 7.3.7 shall be limited to the following: .1 Costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers' compensation insurance; .2 Costs of materials, supplies and equipment, including cost of transportation, whether incorporated or consumed; .3 Rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; .4 Costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work; and .5 Additional costs of supervision and field office personnel directly attributable to the change. § 7.3.8 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change that results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect. When bodi additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. Page 14 of 16 § 7.3.9 Pending final determination of the total cost of a Construction Change Directive to the Owner, the Contractor may request payment for Work completed under the Construction Change Directive in Applications for Payment. The Architect will make an interim determination for purposes of monthly certification for payment for those costs and certify for payment the amount that the Architect determines, in the Architect's professional judgment, to be reasonably justified. The Architect's interim determination of cost shall adjust the Contract Sum on the same basis as a Change Order, subject to the right of either party to disagree and assert a Claim in accordance with Article 15. § 7.3.10 When the Owner and Contractor agree with a determination made by the Architect concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately and the Architect will prepare a Change Order. Change Orders may be issued for all or any part of a Construction Change Directive. § 7.4 MINOR CHANGES IN THE WORK The Architect has authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes will be effected by written order signed by the Architect and shall be binding on the Owner and Contractor. ARTICLE 8 TIME § 8.1 DEFINITIONS § 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. §8.1.2 The date of commencement of the Work is the date established in the Agreement, § 8.1.3 The date of Substantial Completion is the date certified by the Architect in accordance with Section 9.8. § 8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. § 8.2 PROGRESS AND COMPLETION § 8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement the Contractor confirms that the Contract Time is a reasonable period for performing the Work. § 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of die Owner in writing, prematurely commence operations on the site or elsewhere prior to the effective date of insurance required by Article 11 to be furnished by the Contractor and Owner. The date of commencement of the Work shall not be changed by the effective date of such insurance. § 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. § 8.3 DELAYS AND EXTENSIONS OF TIME § 8.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner; or 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; or by delay authorized by the Owner pending mediation and arbitration; or by other causes that the Architect determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect may determine. § 8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Article 15. § 8.3.3 This Section 8.3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents. Page 15 of 16 ARTICLE 9 PAYMENTS AND COMPLETION § 9.1 CONTRACT SUM The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the Owner to the Contractor for performance of die Work under the Contract Documents. § 9.2 SCHEDULE OF VALUES Where the Contract is based on a stipulated sum or Guaranteed Maximum Price, the Contractor shall submit to the Architect, before the first Application for Payment, a schedule of values allocating the entire Contract Sum to the various portions of the Work and prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment. § 9.3 APPLICATIONS FOR PAYMENT § 9.3.1 At least ten days before the date established for each progress payment, the Contractor shall submit to the Architect an itemized Application for Payment prepared in accordance with the schedule of values, if required under Section 9.2, for completed portions of the Work. Such application shall be notarized, if required, and supported by such data substantiating the Contractor's right to payment as the Owner or Architect may require, such as copies of requisitions from Subcontractors and material suppliers, and shall reflect retainage if provided for in the Contract Documents. § 9.3.1.1 As provided in Section 7.3.9, such applications may include requests for payment on account of changes in die Work that have been properly authorized by Construction Change Directives, or by interim determinations of the Architect, but not yet included in Change Orders. § 9,3.1.2 Applications for Payment shall not include requests for payment for portions of the Work for which die Contractor does not intend to pay a Subcontractor or material supplier, unless such Work has been performed by others whom the Contractor intends to pay. § 9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at die site for subsequent incorporation in the Work. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest, and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. § 9.3.3 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than die time of payment. The Contractor further warrants that upon submittal of an Application for Payment ail 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 encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. § 9.4 CERTIFICATES FOR PAYMENT § 9.4.1 The Architect will, within seven days after receipt of the Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect determines is properly due, or notify the Contractor and Owner in writing of the Architect's reasons for withholding certification in whole or in part as provided in Section 9.5.1. § 9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based on the Architect's evaluation of the Work and the data comprising the Application for Payment, that, to the best of the Architect's knowledge, information and belief, the Work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment will further Page 16 of 16 constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on- site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. § 9.5 DECISIONS TO WITHHOLD CERTIFICATION § 9.5.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner, if in the Architect's opinion the representations to the Owner required by Section 9.4.2 cannot be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and Owner as provided in Section 9.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner. The Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the Owner from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Section 3.3.2, because of .1 defective Work not remedied; .2 third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Contractor; .3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; .4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; .5 damage to the Owner or a separate contractor; .6 reasonable evidence diat the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or .7 repeated failure to carry out the Work in accordance with the Contract Documents. § 9.5.2 When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld. § 9.5.3 If the Architect withholds certification for payment under Section 9.5.1.3, the Owner may, at its sole option, issue joint checks to the Contractor and to any Subcontractor or material or equipment suppliers to whom the Contractor failed to make payment for Work properly performed or material or equipment suitably delivered. If the Owner makes payments by joint check, the Owner shall notify the Architect and the Architect will reflect such payment on the next Certificate for Payment. § 9.6 PROGRESS PAYMENTS § 9.6.1 After the Architect has issued a Certificate for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect. § 9.6.2 The Contractor shall pay each Subcontractor no later than seven days after receipt of payment from the Owner the amount to which the Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of the Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub-subcontractors in a similar manner. § 9.6.3 The Architect will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Architect and Owner on account of portions of the Work done by such Subcontractor. § 9.6.4 The Owner has the right to request written evidence from the Contractor that the Contractor has properly paid Subcontractors and material and equipment suppliers amounts paid by the Owner to the Contractor for subcontracted Work. If the Contractor fails to furnish such evidence within seven days, the Owner shall have the right to contact Page 17 of 16 Subcontractors to ascertain whether they have been properly paid. Neither the Owner nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor, except as may otherwise be required by law. § 9.6.5 Contractor payments to material and equipment suppliers shall be treated in a manner similar to that provided in Sections 9.6.2, 9.6.3 and 9.6.4. § 9.6.6 A Certificate 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 Contract Documents. § 9.6.7 Unless the Contractor provides the Owner with a payment bond in the full penal sum of the Contract Sum, payments received by the Contractor for Work properly performed by Subcontractors and suppliers shall be held by the Contractor for those Subcontractors or suppliers who peifonned Work or furnished materials, or both, under contract with the Contractor for which payment was made by the Owner. Nothing contained herein shall require money to be placed in a separate account and not commingled with money of the Contractor, shall create any fiduciary liability or tort liability on the part of the Contractor for breach of trust or shall entitle any person or entity to an award of punitive damages against the Contractor for breach of the requirements of this provision. § 9.7 FAILURE OF PAYMENT intentionally Omitted. § 9.8 SUBSTANTIAL COMPLETION § 9.8.1 Substantial Completion is the stage in the progress of the Work when die Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. § 9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall prepare and submit to the Architect a comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. § 9.8.3 Upon receipt of the Contractor's list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Architect's inspection discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion. § 9.8.4 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion that shall establish the date of Substantial Completion, shall establish responsibilities of die Owner and Contractor for security, maintenance, heat, utilities, damage to die Work and insurance, 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 die Certificate of Substantial Completion. § 9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any, the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. § 9.9 PARTIAL OCCUPANCY OR USE § 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Section 11.3.1.5 and authorized by public authorities having jurisdiction over the Project. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to die Work and insurance, and have agreed in Page 18 of 16 writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion substantially complete, the Contractor shall prepare and submit a list to the Architect as provided under Section 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of the Architect. § 9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. § 9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. § 9.10 FINAL COMPLETION AND FINAL PAYMENT § 9.10.1 Upon receipt of the Contractor's written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when the Architect Finds the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a Final Certificate for Payment stating that to the best of the Architect's knowledge, information and belief, and on the basis of the Architect's on-site visits and inspections, the Work has been completed in accordance widi terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the final Certificate is due and payable. The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Section 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled. § 9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by die Contract Documents, (4) consent of surety, if any, to final payment and (5), if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by die Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. § 9.10.3 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Architect so confirms, the Owner shall, upon application by the Contractor and certification by the Architect, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. § 9.10.5 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. Page 19 of 16 ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY § 10.1 SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. § 10.2 SAFETY OF PERSONS AND PROPERTY § 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to .1 employees on the Work and other persons who may be affected thereby; ,2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub- subcontractors; and .3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. § 10.2.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. § 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. § 10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. § 10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by die Contract Documents) to property referred to in Sections 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3, except damage or loss attributable to acts or omissions of the Owner or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Section 3.18. § 10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect. § 10.2.7 The Contractor shall not permit any part of the construction or site to be loaded so as to cause damage or create an unsafe condition. 10.2.7.1 It is the Contractor's responsibility to initiate and maintain safety training and compliance programs that meet or exceed OSH A standards and all applicable Federal, State and local safety health and environmental regulations. The Owner maintains the right to inspect the work site to determine if conditions exist that could reasonably be expected to cause death, serious physical harm or will compromise the safety and health of the Owner; including visitors and contractor's employees and sub-employees. If such conditions exist, the Owner has die right to suspend work if deemed unsafe. § 10.2.8 INJURY OR DAMAGE TO PERSON OR PROPERTY If eidier party suffers injury or damage to person or property because of an act or omission of the other party, or of others for whose acts such party is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time after discovery. The notice shall provide sufficient detail to enable die odier party to investigate the matter. Page 20 of 16 § 10.3 HAZARDOUS MATERIALS § 10.3.1 The Contractor is responsible for compliance with any requirements included in the Contract Documents regarding hazardous materials, if the Contractor encounters a hazardous material or substance not addressed in the Contract Documents and if reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to die Owner and Architect in writing. § 10.3.2 Upon receipt of the Contractor's written notice, the Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by die Contractor and, in the event such material or substance is found to be present, to cause it to be rendered harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to the Contractor and Architect the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Contractor and the Architect will promptly reply to the Owner in writing stating whether or not either has reasonable objection to the persons or entities proposed by the Owner. If either the Contractor or Architect has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Contractor and the Architect have no reasonable objection. When the material or substance has been rendered harmless, Work in the affected area shall resume upon written agreement of the Owner and Contractor. By Change Order, die Contract Time shall be extended appropriately and the Contract Sum shall be increased in the amount of the Contractor's reasonable additional costs of shut-down, delay and start-up. § 10.3.3 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, Subcontractors, Architect, Architect's consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work in the affected area if in fact the material or substance presents the risk of bodily injury or death as described in Section 10.3.1 and has not been rendered harmless, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other dian the Work itself), except to the extent that such damage, loss or expense is due to the fault or negligence of the party seeking indemnity. § 10.3,4 The Owner shall not be responsible under this Section 10,3 for materials or substances the Contractor brings to die site unless such materials or substances are required by the Contract Documents. The Owner shall be responsible for materials or substances required by the Contract Documents, except to the extent of the Contractor's fault or negligence in the use and handling of such materials or substances. § 10.3.5 The Contractor shall indemnify the Owner for the cost and expense the Owner incurs (1) for remediation of a material or substance the Contractor brings to the site and negligently handles, or (2) where the Contractor fails to perform its obligations under Section 10.3.1, except to the extent that the cost and expense are due to the Owner's fault or negligence. § 10.3.6 If, without negligence on the part of the Contractor, the Contractor is held liable by a government agency for the cost of remediation of a hazardous material or substance solely by reason of performing Work as required by the Contract Documents, the Owner shall indemnify the Contractor for all cost and expense thereby incurred. §10.4 EMERGENCIES In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Article 15 and Article 7. ARTICLE 11 INSURANCE AND BONDS §11.1 CONTRACTOR'S LIABILITY INSURANCE §11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Contractor from claims set forth below which may arise out of or result from the Contractor's operations and completed operations under Page 21 of 16 the Contract and for which the Contractor may be legally liable, whether such operations be by die Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: .1 Claims under workers' compensation, disability benefit and other similar employee benefit acts that are applicable to the Work to be performed; .2 Claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor's employees; .3 Claims for damages because of bodily injury, sickness or disease, or death of any person other than the Contractor's employees; .4 Claims for damages insured by usual personal injury liability coverage; .5 Claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom; .6 Claims for damages because of bodily injury, death of a person or property damage arising out of ownership, maintenance or use of a motor vehicle; .7 Claims for bodily injury or property damage arising out of completed operations; and .8 Claims involving contractual liability insurance applicable to the Contractor's obligations under Section 3.18. §11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability specified in the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption from the date of commencement of the Work until the date of final payment and termination of any coverage required to be maintained after final payment, and, with respect to the Contractor's completed operations coverage, until the expiration of the period for correction of Work or for such other period for maintenance of completed operations coverage as specified in the Contract Documents. §11.1.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner 10 days prior to commencement of the Work and thereafter upon renewal or replacement of each required policy of insurance. These certificates and the insurance policies required by this Section 11.1 shall contain a provision that coverages afforded under the policies will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner. An additional certificate evidencing continuation of liability coverage, including coverage for completed operations, shall be submitted with the final Application for Payment as required by Section 9.10.2 and thereafter upon renewal or replacement of such coverage until the expiration of the time required by Section 11.1.2. Information concerning reduction of coverage on account of revised limits or claims paid under die General Aggregate, or both, shall be furnished by the Contractor with reasonable promptness. Contractor shall carry and maintain in effect during the performance of services under this contract: Comprehensive or Commercial General Liability insurance which shall include contractual, XCU, products and completed operations liability coverages. Bodily injury and property damage with combined single limits of not less than $1,000,000 per occurrence; and if written on an aggregate basis, $2,000,000 aggregate limit - include per project aggregate endorsement. The Owner must be named as an additional insured; * Commerical Automobile Liability insurance endorsed for "any auto" with combined single limits of liability of not less than $1,000,000 each occurrence. The owner must be named as an additional insured; • And Workers' Compensation insurance in compliance with the State of New Hampshire statutes, $ 100,000/5500,000/$ 100,000. None of the requirements as to types and limits to be maintained by Contractor are intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by Contractor under this contract. The Owqner shall not maintain any insurance on behalf of Contractor. Subcontractors are Page 22 of 16 subject to the same insurance requirements as Contractor and it shali be the Contractor's responsibility to ensure compliance of this requirement. 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 the Owner's employee and that there shall be no: (1) Withholding of income taxes by the Owner: (2) Industrial insurance coverage provided by the Owner; (3) Participation in group insurance plans which may be available to employees of the Owner; (4) Participation or contributions by either the independent contractor or the Owner to the public employee's retirement system; (5) Accumulation of vacation leave or sick leave provided by the Owner; (6) Unemployment compensation coverage provided by the Owner. / • All deductibles and self-insured retentions shall be fully disclosed in the certificate(s) of insurance. • 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. § 11.1.4 The Contractor shall cause the commercial liability coverage required by the Contract Documents to include (1) the Owner, the Architect and the Architect's consultants as additional insureds for claims caused in whole or in part by the Contractor's negligent acts or omissions during the Contractor's operations; and (2) the Owner as an additional insured for claims caused in whole or in part by the Contractor's negligent acts or omissions during the Contractor's completed operations. §11.2 OWNER'S LIABILITY INSURANCE The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance. §11.3 PROPERTY INSURANCE § 11.3.1 Unless otherwise provided, the Contractor shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, property insurance written on a builder's risk "all-risk" or equivalent policy form in the amount of the initial Contract Sum, plus value of subsequent Contract Modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made as provided in Section 9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Section 11.3 to be covered, whichever is later. This insurance shall include interests of the Owner, die Contractor, Subcontractors and Sub- subcontractors in die Project. § 11.3.1.1 Property insurance shall be on an "all-risk" or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without Page 23 of 16 duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for Architect's and Contractor's services and expenses required as a result of such insured loss. § 11,3.1.4 This property insurance shall cover portions of the Work stored off the site, and also portions of the Work in transit. The insurance shall include a permission to occupy endorsement. § 11.3.1.5 Partial occupancy or use in accordance with Section 9.9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The Owner and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. § 11.3.2 BOILER AND MACHINERY INSURANCE (NOTE: Does the contract involve any new boilers, compressors or pressure vessels? If so, keep Risk in the loop) The Owner shall purchase and maintain boiler and machinery insurance required by the Contract Documents or by law, which shall specifically cover such insured objects during installation and until final acceptance by the Owner; tliis insurance shall include interests of the Owner, Contractor, Subcontractors and Sub-subcontractors in the Work, and the Owner and Contractor shall be named insureds. § 11.3.3 LOSS OF USE INSURANCE The Owner, at the Owner's option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. § 11.3,6 Before an exposure to loss may occur, the Contractor shall file with the Owner a copy of each policy that includes insurance coverages required by this Section 11.3. Each policy shall contain all generally applicable conditions, definitions, exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduced, until at least 30 days' poor written notice has been given to the Contractor. § 11.3.9 If required in writing by a party in interest, the Owner as fiduciary shall, upon occurrence of an insured loss, give bond for proper performance of the Owner's duties. The cost of required bonds shall be charged against proceeds received as fiduciary. The Owner shall deposit in a separate account proceeds so received, which the Owner shall distribute in accordance with such agreement as the parties in interest may reach, or as determined in accordance with the method of binding dispute resolution selected in the Agreement between the Owner and Contractor. If after such loss no other special agreement is made and unless the Owner terminates the Contract for convenience, replacement of damaged property shall be performed by the Contractor after notification of a Change in the Work in accordance with Article 7. § 11.3.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers. §11.4 PERFORMANCE BOND AND PAYMENT BOND § 11.4.1 The Owner shall have the right to require the Contractor to furnish bonds covering faithful performance of the Contract and payment of obligations arising thereunder as stipulated in bidding requirements or specifically required in the Contract Documents on the date of execution of the Contract. § 11.4.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall authorize a copy to be furnished. Page 24 of 16 ARTICLE 12 UNCOVERING AND CORRECTION OF WORK §12.1 UNCOVERING OF WORK § 12.1.1 If a portion of the Work is covered contrary to the Architect's request or to requirements specifically expressed in the Contract Documents, it must, if requested in writing by the Architect, be uncovered for the Architect's examination and be replaced at the Contractor's expense without change in the Contract Time. § 12.1.2 If a portion of the Work has been covered that the Architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's expense. If such Work is not in accordance with the Contract Documents, such costs and the cost of correction shall be at the Contractor's expense unless the condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs. §12.2 CORRECTION OF WORK § 12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION The Contractor shall promptly correct Work rejected by the Architect or failing to conform to the requirements of die Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections, the cost of uncovering and replacement, and compensation for the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense. § 12.2.2 AFTER SUBSTANTIAL COMPLETION § 12.2.2.1 In addition to the Contractor's obligations under Section 3.5, if, within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Section 9.9.1, or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless die Owner has previously given the Contractor a written acceptance of such condition. The Owner shall give such notice promptly after discovery of the condition. During the one-year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner or Architect, the Owner may correct it in accordance with Section 2.4. § 12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual completion of that portion of the Work. § 12.2.2.3 The one-year period for correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Section 12.2. § 12.2,3 The Contractor shall remove from the site portions of the Work that are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. § 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the Owner or separate contractors caused by the Contractor's correction or removal of Work that is not in accordance with the requirements of the Contract Documents. § 12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with respect to other obligations the Contractor has under the Contract Documents. Establishment of the one-year period for correction of Work as described in Section 12.2.2 relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. Page 25 of 16 § 12.3 ACCEPTANCE OF NONCONFORMING WORK If the Owner prefers to accept Work that is not in accordance with the requirements of the Contract Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. ARTICLE 13 MISCELLANEOUS PROVISIONS §13.1 GOVERNING LAW The Contract shall be governed by the law of the place where the Project is located . All disputes arising from or in connection with the Contract shall be brought in the State of New Hampshire, Superior Court Hillsborough South. § 13.2 SUCCESSORS AND ASSIGNS § 13.2.1 The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to covenants, agreements and obligations contained in the Contract Documents. Except as provided in Section 13.2.2, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. § 13.2.2 The Owner may, without consent of the Contractor, assign the Contract to a lender providing construction financing for the Project, if the lender assumes the Owner's rights and obligations under the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate such assignment. §13.3 WRITTEN NOTICE Written notice shall be deemed to have been duly served if delivered in person to the individual, to a member of the firm or entity, or to an officer of the corporation for which it was intended; or if delivered at, or sent by registered or certified mail or by courier service providing proof of delivery to, the last business address known to the party giving notice. § 13.4 RIGHTS AND REMEDIES § 13.4.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. § 13.4.2 No action or failure to act by the Owner, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach there under, except as may be specifically agreed in writing. § 13.5 TESTS AND INSPECTIONS § 13.5.1 Tests, inspections and approvals of portions of the Work shall be made as required by the Contract Documents and by applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of public authorities. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so that die Architect may be present for such procedures. The Owner shall bear costs of (1) tests, inspections or approvals that do not become requirements until after bids are received or negotiations concluded, and (2) tests, inspections or approvals where building codes or applicable laws or regulations prohibit the Owner from delegating their cost to the Contractor. § 13.5.2 If the Architect, Owner or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Section 13.5.1, the Architect will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that die Architect may be present for such procedures. Such costs, except as provided in Section 13.5.3, shall be at the Owner's expense. § 13.5.3 If such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary Page 26 of 16 by such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense. § 13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by die Contractor and promptly delivered to die Architect. § 13.5.5 If die Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect will do so promptly and, where practicable, at the normal place of testing. § 13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. §13.6 INTEREST Intentionally omitted. ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT § 14.1 TERMINATION BY THE CONTRACTOR § 14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any odier persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: .1 Issuance of an order of a court or other public authority having jurisdiction diat requires all Work to be stopped; .2 An act of government, such as a declaration of national emergency that requires all Work to be stopped; .3 Because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Section 9.4.1, or because the Owner has not made payment on a Certificate for Payment within the time stated in the Contract Documents; or .4 The Owner has failed to furnish to the Contractor promptly, upon the Contractor's request, reasonable evidence as required by Section 2.2.1. § 14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of die entire Work by the Owner as described in Section 14.3 constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365-day period, whichever is less. § 14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 exists, the Contractor may, upon seven days' written notice to the Owner and Architect, terminate the Contract and recover from the Owner payment for Work executed, including reasonable overhead and profit, costs incurred by reason of such termination, and damages. § 14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a Subcontractor or dieir agents or employees or any other persons performing portions of the Work under contract with the Contractor because the Owner has repeatedly failed to fulfill the Owner's obligations under the Contract Documents with respect to matters important to the progress of the Work, the Contractor may, upon seven additional days' written notice to the Owner and the Architect, terminate the Contract and recover from the Owner as provided in Section 14.1.3. § 14.2 TERMINATION BY THE OWNER FOR CAUSE § 14.2.1 The Owner may terminate the Contract if the Contractor .1 repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; .3 repeatedly disregards applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of a public authority; or .4 otherwise is guilty of substantial breach of a provision of the Contract Documents. Page 27 of 16 § 14.2.2 When any of the above reasons exist, the Owner, upon certification by the Initial Decision Maker thai sufficient cause exists to justify such action, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor's surety, if any, seven days' written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety: .1 Exclude the Contractor from the site and take possession of all materials, equipment, tools, and construction equipment and machinery thereon owned by die Contractor; .2 Accept assignment of subcontracts pursuant to Section 5.4; and .3 Finish the Work by whatever reasonable method die Owner may deem expedient. Upon written request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work. § 14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. § 14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect's services and expenses made necessaiy thereby, and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner. The amount to be paid to die Contractor or Owner, as the case may be, shall be certified by the Initial Decision Maker, upon application, and this obligation for payment shall survive termination of the Contract. § 14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE § 14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, deiay or interrupt the Work in whole or in pail for such period of time as the Owner may determine. § 14.3.2 The Contract Sum and Contract Time may be adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Section 14.3.1. Adjustment of the Contract Sum may include profit. No adjustment shall be made to the extent .1 that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or .2 that an equitable adjustment is made or denied under another provision of the Contract. § 14.4 TERMINATION BY THE OWNER FOR CONVENIENCE § 14.4.1 The Owner may, at any time, terminate the Contract for the Owner's convenience and without cause. § 14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the Contractor shall .1 cease operations as directed by the Owner in the notice; .2 take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and .3 except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. .4 assist Owner in the orderly transition of the Work to another contractor of the Owner's choosing or to the Owner in the Owner's sole discretion. § 14.4.3 In case of such termination for the Owner's convenience, the Contractor shall be entitled to receive payment for Work executed, and costs incurred by reason of such terminationon the Work not executed. ARTICLE 15 CLAIMS AND DISPUTES §15.1 CLAIMS §15.1.1 DEFINITION A Claim is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in Page 28 of 16 question between the Owner and Contractor arising out of or relating to the Contract. The responsibility to substantiate Claims shall rest with the party making tire Claim. §15.1.2 NOTICE OF CLAIMS Claims by either the Owner or Contractor must be initiated by written notice to the other party and to the Initial Decision Maker with a copy sent to the Architect, if the Architect is not serving as the initial Decision Maker. §15.1.3 CONTINUING CONTRACT PERFORMANCE Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Section 9.7 and Article 14, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. The Architect will prepare Change Orders and issue Certificates for Payment in accordance with die decisions of the Initial Decision Maker. § 15.1.4 CLAIMS FOR ADDITIONAL COST If the Contractor wishes to make a Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Section 10.4. § 15.1.5 CLAIMS FOR ADDITIONAL TIME § 15.1.5.1 If the Contractor wishes to make a Claim for an increase in the Contract Time, written notice as provided herein shall be given. The Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay, only one Claim is necessary. § 15.1.5.2 If adverse weather conditions are die basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction. §15.1.6 CLAIMS FOR CONSEQUENTIAL DAMAGES The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes .1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and .2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Article 14. Nothing contained in this Section 15.1.6 shall be deemed to preclude an award of liquidated damages, when applicable, in accordance with the requirements of the Contract Documents. § 15.2.7 In the event of a Claim against the Contractor, the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor's default, the Owner may, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy. § 15.2.8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such Claim may proceed in accordance with applicable law to comply with the lien notice or filing deadlines. §15.3 MEDIATION § 15.3.1 Claims, disputes, or other matters in controversy arising out of or related to the Contract except those waived as provided for in Sections 9.10.4,9.10.5, and 15.1.6 may be subject to mediation. § 15.3.2 The parties may endeavor to resolve their Claims by mediation. A request for mediation shall be made in writing, delivered to the other party to the Contract, and filed with the person or entity administering the mediation. Page 29 of 16 § 15,3.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. §15.4 ARBITRATION §15.4.1 Intentionally omitted. § 15.4.1.1 Intentionally omitted. § 15.4.2 intentionally omitted. § 15,4.3 Intentionally omitted. § 15.4.4 CONSOLIDATION OR JOINDER Intentionally omitted. Page 30 of 16 Letter of Intent 'MARTINI LETTER OF INTENT TO ENTER INTO A CONTRACT AND PRELIMINARY CONTRACT Date: September 10,2019 It is the intent of The City of Nashua (Owner) to enter into a modified form of the standard Nashua Construction Contract with Martini Northern, LLC for the project as outlined below. Martini Northern, LLC is hereby authorized to begin work providing the services listed below. The Owner will pay Martini Northern, LLC for these services. Agreement Between: Owner- Mayor Jim Donchess City of Nashua 229 Main Street Nashua NH 03061 Phone: 603-589-3072 And Contractor: Martini Northern, LLC 299 Hanover Street Portsmouth, NH 03801 Phone: 603.431.6664 Fax: 603.431.9377 Name of Project: Public Health Facility Renovations Location: 18 Mulberry Street Nashua NH Architect: Dennis Mires Architects Brief Description of the Project: Renovations to the existing building including a new elevator, vertical stairs, exterior envelop improvements and H VAC improvements. Current Contract Documents: TBD Martini Northern, LLC 299 Hanover Street Portsmouth, NH 03S01 wvvw.martininoriht'-rn com 1 Scheduled on Site Start Date: Spring of 2020 Substantial Completion Date: TBD Proposed Contract Form: Standard Nashua Construction Contract Party Responsible for Preparing Contract: City of Nashua. Martini Northern, LLC is hereby authorized to begin the following work. (Yes, No, or N/A) Preconstruction Services Yes Soliciting of Sub Bids No Preordering Equipment No Awarding Subcontracts No Preparation of Submittals No Obtain Insurance Coverage No Apply for Building Permit No Occupy Site No Begin Construction No Agreed Upon Contract Amount or Budget 1,500,000 +/- (GMP) Agreed Upon Fee 3.5% (Lump Sum) Other Agreements: Preconstruction services will run approximately 5 months, starting in Mid- September and running through early March. Preconstruction fee will be 17,000 in addition to the construction fee above. Owner and Martini Northern, LLC agree to proceed on the^foSsiS of trust, good faith, and fair dealing, and shall take actions reasonably necessary to n&fon/ihis agreement in aneconomical and timely manner. / f MMS^y-lb Peter Middleton, /r^ Jim Donchess, Mayor President Martini Northern, LLC. // City of Nashua, NH Martini Northern, LLC 299 Hanover Street Portsmouth, NH 03801 ww/. martminorttiern.com 2 a THE CITY OF NASHUA 'The Gate City' Financial Services Purchasing Department November 28, 2019 Memo #20-063 TO: MAYOR DONCHESS FINANCE COMMITTEE SUBJECT: CONTRACT FOR DESIGN AND PROJECT MANAGEMENT OF NASHUA DOWNTOWN RIVERFRONT IMPLEMENTATION (VALUE: $437,653) DEPARTMENTS83 ECONOMIC DEVELOPMENT; FUND: RIVERFRONT PROMENADE TIF Please see attached communication from Tim Cummings, Director of Economic Development dated November 22, 2019 for the information related to this purchase. 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 Director of Economic Development and the Purchasing Department recommend award of this contract in an amount of $437,653 to Vanasse Hangen Brustiin, Inc. (VHB) of Bedford, NH. Respectfull Dan Kooken Purchasing Manager Ce: T Cummings J Graziano 229 Main Street • Nashua, New Hampshire 03061 • Phone (603) 589-3330 • Fax (603) 589-3233 j THE CITY OF NASHUA 'The Gate City'H Economic Development To: James Donchess, Mayor From: T. Cummings, Economic Development Director Ce: S. Marchant, Community Development Director Date: November 22, 2019 Re: Contract for Design Services & Project Management for the Downtown Riverfront The Office of Economic Development in partnership with the Community Development Division solicited proposals for Design services and Project Management for the implementation of the Nashua Downtown Riverfront Plan in an RFQ0265-061219 released this past summer. Specifically, the services sought are to design and development of construction documents for the Riverfront in the Tax Increment Financing ("TIF") District. I along with TEF Committee solicited proposals from finns who have past experience designing, engineering and management projects of similar scope and size. Five firms responded and we interviewed collectively every team that submitted a proposal. The proposals were evaluated on the following criteria: qualifications/experience, past performance and service on similar projects, proposed approach to scope of work, responses in interviews and cost. VHB was chosen unanimously due to their comprehensive knowledge and the strong team of sub- consultants that would be working with them on this project. Additionally, VHB is a well-established firm with experience working with municipalities, which helped position them to be the committee's top choice. I am recommending awarding a contract for design services and project management for the amount not to $437,653.00 along with various minor miscellaneous expenses to VHB. It should be noted, that this is a lsl phase of a design process and there will be a need for additional design prior going to construction. This phased approach is being undertaken to ensure we have funds available to pay for the work. Total design related services will be approximately 5700,000 - $800,000. Currently we have approximately $750,000 available in the TEF account and with other miscellaneous expenses it made the most sense to spread the design phases out over a two year period. As a reminder this effort is in anticipation of a bond issuance of approximately $12M - $15M to carry out the construction of the project (TIF funds would be used to pay for the debt service). Thank you. CONTRACT FOR PROFESSIONAL SERVICES RFQ0265-061219 DESIGN SERVICES & PROJECT MANAGEMENT DOWNTOWN RIVERFRONT IMPLEMENTATION A CONTRACT BETWEEN THE CITY OF NASHUA, 229 MAIN STREET, NASHUA, NH 03061-2019 AND VANASSE HANGEN BRUSTLIN, INC. ("VHB") NAME AND TITLE OF SERVICE PROVIDER 2 BEDFORD FARMS DRIVE, SUITE 200, BEDFORD, NH 03110 ADDRESS OF SERVICE PROVIDER WHEREAS, the City of Nashua, a political subdivision of the State of New Hampshire, from time to time requires the services of a Service Provider ; and WHEREAS, it is deemed that the services of a Service Provider herein specified are both necessary and desirable and in the best interests of the City of Nashua; and WHEREAS, Service Provider represents they are duly qualified, equipped, staffed, ready, willing and able to perform and render the services hereinafter described; NOW, THEREFORE, in consideration of the agreements herein made, the parties mutually agree as follows: 1. DOCUMENTS INCORPORATED. The following exhibits are by this reference incorporated herein and are made part of this contract: Exhibit A- General Conditions for Contracts Exhibit B - VHB Scope of Work Dated October 31, 2019 Exhibit C - RFQ0265-061219 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. 2. WORK TO BE PERFORMED Except as otherwise provided in this contract, Service Provider shall furnish all services, equipment, and materials and shall perform all operations necessary and required to carry out and perform in accordance with the terms and conditions of the contract the AG 1 of 3 work described. 3. PERIOD OF PERFORMANCE. Service Provider shall perform and complete all work with final plans, [TBDJ.. The time periods set forth 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. Service Provider shall begin performance upon receipt of the signed contract. 4. COMPENSATION. Service Provider agrees to perform the work for a total cost not to exceed ($437,653.00> Unless Service Provider has received a written exemption from the City. Service Provider shall submit requests for payment for services performed under this agreement directly to City of Nashua Attn: Accounts Payable PO Box 2019 Nashua, NH 03061-2019 To facilitate the proper and timely payment of applications, the City of Nashua requires that all invoices contain a valid PURCHASE ORDER NUMBER. Requests for payment shall be submitted no later than fifteen (15) days after the end of each month and must include a detailed summary of the expenditures reported in a form that supports the approved budget. Specifically, Service Provider agrees to provide the following with each request for payment: 1. Appropriate invoice forms. The forms shall include the project purchase order number, a listing of personnel hours and billing rates, and other expenditures for which payment is sought. 2. A progress report. The report shall include, for each monthly reporting period, a description of the work accomplished, problems experienced, upcoming work, any extra work carried out, and a schedule showing actual expenditures billed for the period, cumulative total expenditures billed and paid to date under the contract, and a comparison of cumulative total expenditures billed and paid to the approved budget. The City will pay for work satisfactorily completed by Service Provider. The City will pay Service Provider within 30 days of approval by the City of the submitted invoice forms and progress reports. The City will make no payments until the invoice forms and progress reports have been submitted and approved. 5. EFFECTIVE DATE OF CONTRACT. This contract shall not become effective until and unless approved by the City of Nashua. 6. NOTICES. All notices, requests, or approvals required or permitted to be given under this contract shall be in writing, shall be sent by hand delivery, overnight carrier, or by United States mail, postage prepaid, and registered or certified, and shall be addressed to: AG 2 of 3 CITY REPRESENTATIVE: REPRESENTATIVE: Tim Cummings Robin Bousa Director of Economic Development Managing Director Office of Economic Development Vanasse Hangen Brustlin, Inc. ("VHB") 229 Main Street 2 Bedford Farms Drive, Suite 200 Nashua, NH 03060 Bedford, NH 03110 Any notice required or permitted under this contract, if sent by United States mail, shall be deemed to be given to and received by the addressee thereof on the third business day after being deposited in the mail. The City or Service Provider may change the address or representative by giving written notice to the other party. IN WITNESS WHEREOF, the parties hereto have caused this contract to be signed and intend to be legally bound thereby. City of Nashua, NH (signature) Vanasse Hangen Brustlin, Inc. (signature) Jim Donchess, Mayor Robin Bousa, Managing Director (Printed Name and Title) (Printed Name and Title) Date Date AG 3 of 3 EXHIBIT A TABLE OF CONTENTS GENERAL CONDITIONS 1. DEFINITIONS GC--3 2. SERVICE PROVIDER STATUS AND PROVISION OF WORKERS' COMPENSATION COVERAGE GC--3 3. STANDARD OF CARE GC--4 4. CITY REPRESENTATIVE GC--4 5. CHANGES TO SCOPE OF WORK GC--4 6. CITY COOPERATION GC--5 7. DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES GC--5 8. TERMINATION OF CONTRACT GC--5 9. DISPUTE RESOLUTION GC--7 10. NO DAMAGES FOR DELAY GC--7 11. INSURANCE GC--7 12. INDEMNIFICATION GC--8 13. FISCAL CONTINGENCY GC--8 14. COMPENSATION GC--8 15. COMPLIANCE WITH APPLICABLE LAWS GC--8 16. NONDISCRIMINATION GC--9 17. FEDERAL SUBCONTRACTING REQUIREMENTS GC--9 18. ENDORSEMENT GC--10 19. ASSIGNMENTS, TRANSFER, DELEGATION, OR SUBCONTRACTING GC--10 20. CITY INSPECTION OF CONTRACT MATERIALS GC--10 21. DISPOSITION OF CONTRACT MATERIALS GC--10 22. PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS GC--10 23. FINAL ACCEPTANCE GC--11 24. TAXES GC--11 25. NON-WAIVER OF TERMS AND CONDITIONS GC--11 26. RIGHTS AND REMEDIES GC- -11 27. PROHIBITED INTERESTS GC- -11 28. THIRD PARTY INTERESTS AND LIABILITIES GC--12 GC 1 of 13 29. SURVIVAL OF RIGHTS AND OBLIGATIONS GC-12 30. SEVERABILITY GC--I2 3 \. MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT GC--12 32. CHOICE OF LAW AND VENUE GC~ 13 GC2of 13 GENERAL CONDITIONS 1. DEFINITIONS. Unless otherwise required by the context, "Service Provider" includes any of the Service Provider's consultants, sub consultants, contractors, and subcontractors 2. SERVICE PROVIDER STATUS AND PROVISION OF WORKERS' COMPENSATION COVERAGE. The parties agree that Service Provider shall have the status of and shall perform all work under this contract as a Service Provider, maintaining control over all its consultants, sub consultants, contractors, or subcontractors. The only contractual relationship created by this contract is between the City and Service Provider, and nothing in this contract shall create any contractual relationship between the City and Sendee Provider's consultants, sub consultants, contractors, or subcontractors. The parties also agree that Service Provider is not a City 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 either the Service Provider or the City 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. Service Provider agrees, if applicable and before commencing any work under the contract, to complete and to provide the following written request to its insurer: Vanesse Hangen Brustiin, Inc. has entered into a contract with the City of Nashua to perform work upon receipt of a Notice to Proceed to Final Completion and requests that the Insurer provide to the City of Nashua 1) a certificate of coverage, and 2) notice of any lapse in coverage or nonpayment of coverage that the Service Provider is required to maintain. The certificate and notice should be mailed to: Risk Management City of Nashua 229 Main Street Nashua, NH 03060 Service Provider agrees, if not exempt, to maintain required workers' compensation coverage throughout the entire term of the contract. If Service Provider does not maintain coverage throughout the entire term of the contract, Service Provider agrees that City may, at any time the coverage is not maintained by Service Provider, order the Service Provider to stop work, suspend the contract, or terminate the contract. For each six-month period this contract is in effect, Service Provider agrees, prior to the expiration of the six-month period, to provide another written request to its insurer for the provision of a certificate and notice of lapse in or nonpayment of coverage. If Service Provider does not make the request or does not provide the certificate before the expiration of the six-month period, Service Provider agrees that City may order the Service Provider to stop work, suspend the contract, or terminate the contract. 3. STANDARD OF CARE. Service Provider shall be responsible for the professional quality, technical accuracy, timely completion, and coordination of all work performed under this contract. GC3of 13 Service Provider warrants that all work shall be performed with the degree of professional skill, care, diligence, and sound practices and judgment that are normally exercised by recognized professional firms with respect to services of a similar nature. It shall be the duty of Service Provider to assure at its own expense that all work is technically sound and in conformance with all applicable federal, state, and local laws, statutes, regulations, ordinances, orders, or other requirements. In addition to all other rights which the City may have, Service Provider shall, at its own expense and without additional compensation, re-perform work to correct or revise any deficiencies, omissions, or errors in the work or the product of the work or which result from Service Provider's failure to perform in accordance with this standard of care. Any approval by the City of any products or services furnished or used by Service Provider shall not in any way relieve Service Provider of the responsibility for professional and technical accuracy and adequacy of its work. City review, approval, or acceptance of, or payment for any of Service Provider's work under this contract shall not operate as a waiver of any of the City's rights or causes of action under this contract, and Service Provider shall be and remain liable in accordance with the terms of the contract and applicable law. Service Provider shall furnish competent and skilled personnel to perform the work under this contract. The City reserves the right to approve key personnel assigned by Service Provider to perform work under this contract. Approved key personnel shall not be taken off of the project by Service Provider without the prior written approval of the City, except in the event of termination of employment. Service Provider shall, if requested to do so by the City, remove from the job any personnel whom the City determines to be incompetent, dishonest, or uncooperative. 4. CITY REPRESENTATIVE. The City may designate a City representative for this contract. If designated, all notices, project materials, requests by Service Provider, and any other communication about the contract shall be addressed or be delivered to the City Representative. 5. CHANGES TO SCOPE OF WORK. The City may, at any time, by written order, make changes to the general scope, character, or cost of this contract and in the services or work to be performed, either increasing or decreasing the scope, character, or cost of Service Provider's performance under the contract. Service Provider shall provide to the City within 10 calendar days, a written proposal for accomplishing the change. The proposal for a change shall provide enough detail, including personnel hours for each sub-task and cost breakdowns of tasks, for the City to be able to adequately analyze the proposal. The City will then determine in writing if Service Provider should proceed with any or all of the proposed change. If the change causes an increase or a decrease in Service Provider's cost or time required for performance of the contract as a whole, an equitable adjustment shall be made and the contract accordingly modified in writing. Any claim of Service Provider for adjustment under this clause shall be asserted in writing within 30 days of the date the City notified Service Provider of the change. When Service Provider seeks changes, Service Provider shall, before any work commences, estimate their effect on the cost of the contract and on its schedule and notify the City in writing of the estimate. The proposal for a change shall provide enough detail, including personnel hours for each sub-task and cost breakdowns of tasks, for the City to be able to adequately analyze the proposal. The City will then determine in writing if Service Provider should proceed with any or all of the proposed change. Except as provided in this paragraph, Service Provider shall implement no change unless the City in writing approves the change. Unless otherwise agreed to in writing, the provisions of this contract shall apply to all changes. The City may provide verbal approval of a change when the GC4of 13 City, in its sole discretion, determines that time is critical or public health and safety are of concern. Any verbal approval shall be confirmed in writing as soon as practicable. Any change undertaken without prior City approval shall not be compensated and is, at the City's election, sufficient reason for contract termination. 6. CITY COOPERATION. The City agrees that its personnel will cooperate with Service Provider in the performance of its work under this contract and that such personnel will be available to Service Provider for consultation at reasonable times and after being given sufficient advance notice that will prevent conflict with their other responsibilities. The City also agrees to provide Service Provider with access to City records in a reasonable time and manner and to schedule items that require action by the Board of Public Works and Finance Committee in a timely manner. The City and Service Provider also agree to attend all meetings called by the City or Service Provider to discuss the work under the Contract, and that Service Provider may elect to conduct and record such meetings and shall later distribute prepared minutes of the meeting to the City. 7. DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES. Service Provider warrants that it has examined all contract documents, has brought all conflicts, errors, discrepancies, and ambiguities to the attention of the City in writing, and has concluded that the City's resolution of each matter is satisfactory to Service Provider. All future questions Service Provider may have concerning interpretation or clarification of this contract shall be submitted in writing to the City within 10 calendar days of their arising. The writing shall state clearly and in full detail the basis for Service Provider's question or position. The City representative shall render a decision within 15 calendar days. The City's decision on the matter is final. Any work affected by a conflict, error, omission, or discrepancy which has been performed by Service Provider prior to having received the City's resolution shall be at Service Provider's risk and expense. At all times, Service Provider shall carry on the work under this contract and maintain and complete work in accordance with the requirements of the contract or determination of the City. Service Provider is responsible for requesting clarification or interpretation and is solely liable for any cost or expense arising from its failure to do so. 8. TERMINATION OF CONTRACT A. TERMINATION, ABANDONMENT, OR SUSPENSION AT WILL. 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. If the City chooses to terminate, abandon, or suspend all or part of the project, it shall provide Service Provider 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 part of the project and contract. Upon receipt of notice of termination, abandonment, or suspension at will, Service Provider shall: 1. Immediately discontinue work on the date and to the extent specified in the notice. 2. Place no further orders or subcontracts 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. 3. Immediately make every reasonable effort to obtain cancellation upon terms satisfactory to the City of all orders or subcontracts to the extent they relate to the GC 5 of 13 performance of work terminated, abandoned, or suspended under the notice, assign to the City any orders or subcontracts specified in the notice, and revoke agreements specified in the notice. 4. 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, Service Provider shall receive all amounts due and not previously paid to Service Provider 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. B. TERMINATION FOR CAUSE. This agreement may be terminated by the City on 10 calendar day's written notice to Service Provider in the event of a failure by Service Provider to adhere to all the terms and conditions of the contract or for failure to satisfactorily, in the sole opinion of the City, pursue the project or to complete work in a timely and professional manner. Service Provider shall be given an opportunity for consultation with the City prior to the effective date of the termination. Service Provider may terminate the contract on 10 calendar days written notice if, through no fault of Service Provider, the City fails to pay Service Provider for 30 days after the date of approval of any submitted invoice forms and progress reports. In the event of a termination for cause, Service Provider shall receive all amounts due and not previously paid to Service Provider 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 Service Provider's failure. Service Provider shall not be relieved of liability to the City for damages sustained from the failure, and the City may withhold any payment to the Service Provider until such time as the exact amount of damages due to the City is determined. All claims for payment by the Service Provider 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 Service Provider to adhere to all the terms and conditions of the contract or for failure to satisfactorily, in the sole opinion of the City, pursue the project or to complete work in a timely and professional manner, it is determined that Service Provider had not so failed, the termination shall be deemed to have been a termination at will, hi that event, the City shall make an equitable adjustment in the compensation paid to Service Provider. The adjustment shall include a reasonable profit for services or other work performed up to the effective date of termination less all previous payments. C. 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. In the event Service Provider shall cease conducting business, the City shall have the right to solicit applications for employment from any employee of the Service Provider assigned to the performance of the contract. Neither party shall be considered in default of the performance of its obligations hereunder to the extent that 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 Service Provider's principals, officers, employees, agents, GC 6 of 13 subcontractors, consultants, vendors, or suppliers are expressly recognized to be within Service Provider's control. 9. DISPUTE RESOLUTION. Any dispute not within the scope of section 7 or section 8 shall be resolved under this paragraph. 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 City Representative and a Service Provider representative. At all times, Service Provider 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 City. If the dispute is not resolved within 30 days, either party may request that the dispute be submitted to the Board of Public Works for final resolution. The decision of the Board of Public Works shall be final and binding on the parties. If either party is dissatisfied with the decision of the Board of Public Works, that party may immediately terminate the contract under this paragraph, with Service Provider being entitled to compensation for work actually and satisfactorily performed up to the time of the termination and the City being entitled to all contract materials in accordance with paragraph 21, and compensation for any additional damages or expenses incurred in completing the work under the contract, including, without limitation, the costs of securing the services of other Service Providers. 10. No DAMAGES FOR DELAY. Apart from a written extension of time, no payment, compensation, or adjustment of any kind shall be made to Service Provider for damages because of hindrances or delays in the progress of the work from any cause, and Service Provider agrees to accept in full satisfaction of such hindrances and delays any extension of time that the City may provide. 11. INSURANCE. Service Provider 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; > $ 1,000,000 Combined Single Limit Automobile Liability; ^Coverage must include all owned, non-owned and hired vehicles. >—$1,000,000 Profession Liability; > and Workers' Compensation Coverage in compliance with the State of New Hampshire statutes, $100,000/$500,000/$100,000. Service Provider shall maintain in effect at all times during the performance under this contract all specified insurance coverage with insurers. None of the requirements as to types and limits to be maintained by Service Provider are intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by Service Provider under this contract. The City of Nashua shall not maintain any insurance on behalf of Service Provider. Subcontractors are subject to the same insurance requirements as Service Provider and it shall be the Service Provider's responsibility to ensure compliance of this requirement. Service Provider will provide the City of Nashua with certificates of insurance for coverage as listed below and endorsements affecting coverage required by the contract within ten calendar days after the City issues the notice of award. The City of Nashua requires thirty days written GC 7 of 13 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 City of Nashua as an additional insured and reflect on the certificate of insurance. Service Provider is responsible for filing updated certificates of insurance with the City of Nashua'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. • If aggregate limits of less than $2,000,000 are imposed on bodily injury and property damage, Sendee Provider 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 Service Provider of its responsibilities or limit the amount of its liability to the City or other persons, and Service Provider 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 City of Nashua shall be called upon to contribute to a loss. • Service Provider 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 Service Provider or anyone employed, directed, or supervised by Service Provider. 12. INDEMNIFICATION Regardless of any coverage provided by any insurance, Service Provider 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 mariner 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 Service Provider or of anyone acting under its direction or control or on its behalf in connection with or incidental to the performance of this contract. Service Provider'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. 13. FISCAL CONTINGENCY. All payments under this contract are contingent upon the availability to the City of the necessary funds. This contract shall terminate and the City's obligations under it shall be extinguished at the end of any fiscal year in which the City fails to appropriate monies for the ensuing fiscal year sufficient for the performance of this contract. Nothing in this contract shall be construed to provide Service Provider with a right of payment over any other entity. Any funds obligated by the City under this contract that are not paid to Service Provider shall automatically revert to the City's discretionary control upon the completion, termination, or cancellation of the agreement. The City shall not have any obligation to re-award or to provide, in any manner, the unexpended funds to Service Provider. Service Provider shall have no claim of any sort to the unexpended funds. 14. COMPENSATION. Review by the City of Service Provider's submitted monthly invoice forms and progress reports for payment will be promptly accomplished by the City. If there is insufficient information, the City may require Service Provider to submit additional information. GC 8 of 13 Unless the City, in its sole discretion, decides otherwise, the City shall pay Service Provider in full within 30 days of approval of the submitted monthly invoice forms and progress reports. 15. COMPLIANCE WITH APPLICABLE LAWS. Service Provider, at all times, shall fully and completely comply with all applicable local, state and federal laws, statutes, regulations, ordinances, orders, or requirements of any sort in carrying out the obligations of this contract, including, but not limited to, all federal, state, and local accounting procedures and requirements, all immigration and naturalization laws, and the Americans With Disabilities Act. Service Provider shall, throughout the period services are to be performed under this contract, monitor for any changes to the applicable laws, statutes, regulations, ordinances, orders, or requirements, shall promptly notify the City in writing of any changes to the same relating to or affecting this contract, and shall submit detailed documentation of any effect of the change in terms of both time and cost of performing the contract. 16. NONDISCRIMINATION. If applicable or required under any federal or state law, statute, regulation, order, or other requirement, Service Provider agrees to the following terms. Service Provider will not discriminate against any employee or applicant for employment because of physical or mental handicap in regard to any position for which the employee or applicant for employment is qualified. Service Provider agrees to take affirmative action to employ, advance in employment, or to otherwise treat qualified, handicapped individuals without discrimination based upon physical or mental handicap in all employment practices, including but not limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff, termination, rates of pay, or other fonns of compensation and selection for training, including apprenticeship. Without limitation of the foregoing, Service Provider's attention is directed to 41 C.F.R. § 60-1.4, and the clause entitled "Equal Opportunity Clause" which, by reference, is incorporated into this contract, to 41 C.F.R. § 60-250 et seq. and the clause entitled "Affirmative Action Obligations of Service Providers and Subcontractor for Disabled Veterans and Veterans of the Vietnam Era," which, by reference, is incorporated in this contract, and to 41 C.F.R. § 60-471 and the clause entitled "Affirmative Action Obligations of Service Providers and Subcontractors for Handicapped Workers," which, by this reference, is incorporated in this contract. Service Provider agrees to assist disadvantaged business enterprises in obtaining business opportunities by identifying and encouraging disadvantaged suppliers, consultants, and sub consultants to participate to the extent possible, consistent with their qualification, quality of work, and obligation of Service Provider under this contract. in connection with the performance of work under this contract, Service Provider agrees not to discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, age, or sexual orientation. This agreement includes, but is not limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Service Provider agrees, if applicable, to insert these provisions in all subcontracts, except for subcontracts for standard commercial supplies or raw materials. Any violation of any applicable provision by Service Provider shall constitute a material breach of the contract. GC 9 of 13 17. FEDERAL SUBCONTRACTING REQUIREMENTS. If Service Provider awards a subcontract under this contract, Service Provider, if applicable, shall use the following alternative steps: A. Using the services of the Small Business Administration and the Minority Business Development Agency of the United States Department of Commerce, as appropriate; and B. Requiring the subcontractor, if it awards subcontracts, to take the affirmative steps set forth in paragraph A. If applicable, Service Provider agrees to complete and submit to the City a Minority Business Enterprise/Woman Business Enterprise (MBE/WBE) Utilization Report (Standard Form 334) within 30 days after the end of each fiscal quarter until the end of the contract. 18. ENDORSEMENT. Service Provider shall seal and/or stamp and sign professional documents including drawings, plans, maps, reports, specifications, and other instruments of service prepared by Service Provider or under its direction as required under the laws of the State of New Hampshire. 19. ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING. Service Provider shall not assign, transfer, delegate, or subcontract any rights, obligations, or duties under this contract without the prior written consent of the City. Any such assignment, transfer, delegation, or subcontracting without the prior written consent of the City is void. Any consent of the City to any assignment, transfer, delegation, or subcontracting shall only apply to the incidents expressed and provided for in the written consent and shall not be deemed to be a consent to any subsequent assignment, transfer, delegation, or subcontracting. Any such assignment, transfer, delegation, or subcontract shall require compliance with or shall incorporate all terms and conditions set forth in this agreement, including all incoiporated Exhibits and written amendments or modifications. Subject to the foregoing provisions, the contract inures to the benefit of, and is binding upon, the successors and assigns of the parties. 20. CITY INSPECTION OF CONTRACT MATERIALS. The books, records, documents and accounting procedures and practices of Service Provider related to this contract shall be subject to inspection, examination and audit by the City, including, but not limited to, the contracting agency, the Board of Public Works, Corporation Counsel, and, if applicable, the Comptroller General of the United States, or any authorized representative of those entities. 21. DISPOSITION OF CONTRACT MATERIALS. Any books, reports, studies, photographs, negatives or other documents, data, drawings or other materials, including but not limited to those contained in media of any sort (e.g., electronic, magnetic, digital) prepared by or supplied to Service Provider in the performance of its obligations under this contract shall be the exclusive property of the City and all such materials shall be remitted and delivered, at Service Provider's expense, by Service Provider to the City upon completion, termination, or cancellation of this contract. Alternatively, if the City provides its written approval to Service Provider, any books, reports, studies, photographs, negatives or other documents, data, drawings or other materials including but not limited to those contained in media of any soil (e.g., electronic, magnetic, digital) prepared by or supplied to Service Provider in the performance of its obligations under this contract must be retained by Service Provider for a minimum of four years after final payment is made and all other pending matters are closed. If, at any time during the retention period, the City, in writing, requests any or all of the materials, then Service Provider shall promptly remit and deliver the materials, at Service Provider's expense, to the City. Service Provider shall not use, willingly allow GC 10 of 13 or cause to have such materials used for any purpose other than the performance of Service Provider's obligations under this contract without the prior written consent of the City. 22. PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS. Service Provider expressly agrees that all documents ever submitted, filed, or deposited with the City by Service Provider (including those remitted to the City by Service Provider pursuant to paragraph 21), unless designated as confidential by a specific statue of the State of New Hampshire, shall be treated as public records and shall be available for inspection and copying by any person, or any governmental entity. No books, reports, studies, photographs, negatives or other documents, data, drawings or other materials including but not limited to those contained in media of any sort (e.g., electronic, magnetic, digital) prepared by or supplied to Service Provider in the performance of its obligations under this contract shall be the subject of any application for a copyright or patent by or on behalf of Service Provider. The City shall have the right to reproduce any such materials. Service Provider expressly and indefinitely waives all of its rights to bring, including but not limited to, by way of complaint, interpleader, intervention, or any third party practice, any claims, demands, suits, actions, judgments, or executions, for damages or any other relief, in any administrative or judicial forum, against the City or any of its officers or employees, in either their official or individual capacity, for violations of or infringement of the copyright or patent laws of the United States or of any other nation. Service Provider agrees to indemnify, to defend, and to hold harmless the City, its representatives, and employees from any claim or action seeking to impose liability, costs, and attorney fees incurred as a result of or in connection with any claim, whether rightful or otherwise, that any material prepared by or supplied to Service Provider infringes any copyright or that any equipment, material, or process (or any part thereof) specified by Service Provider infringes any patent Service Provider shall have the right, in order to avoid such claims or actions, to substitute at its expense non-infringing materials, concepts, products, or processes, or to modify such infringing materials, concepts, products, or processes so they become non-infringing, or to obtain the necessary licenses to use the infringing materials, concepts, products, or processes, provided that such substituted or modified materials, concepts, products, or processes shall meet all the requirements and be subject to all the terms and conditions of this contract 23. FINAL ACCEPTANCE. Upon completion of all work under the contract, Service Provider shall notify the City in writing of the date of the completion of the work and request confirmation of the completion from the City. Upon receipt of the notice, the City shall confirm to Service Provider in writing that the whole of the work was completed on the date indicated in the notice or provide Service Provider with a written list of work not completed. With respect to work listed by the City as incomplete, Service Provider shall promptly complete the work and the final acceptance procedure shall be repeated. The date of final acceptance of a project by the City shall be the date upon which the Board of Public Works or other designated official accepts and approves the notice of completion. 24. TAXES. Service Provider shall pay all taxes, levies, duties, and assessments of every nature due in connection with any work performed under the contract and make any and all payroll deductions required by law. The contract sum and agreed variations to it shall include all taxes imposed by law. Service Provider hereby indemnifies and holds harmless the City from any liability on account of any and all such taxes, levies, duties, assessments, and deductions. GC 11 of 13 25. NON-WAIVER OF TERMS AND CONDITIONS. None of the terms and conditions of this contract shall be considered waived by the City. There shall be no waiver of any past or future default, breach, or modification of any of the terms and conditions of the contract unless expressly stipulated to by the City in a written waiver. 26. RIGHTS AND REMEDIES. The duties and obligations imposed by the contract and the rights and remedies available under the contract shall be in addition to and not a limitation of any duties, obligations, rights, and remedies otherwise imposed or available by law. 27. PROHIBITED INTERESTS. Service Provider shall not allow any officer or employee of the City to have any indirect or direct interest in this contract or the proceeds of this contract. Service Provider warrants that no officer or employee of the City has any direct or indirect interest, whether contractual, non-contractual, financial or otherwise, in this contract or in the business of Service Provider. If any such interest comes to the attention of Service Provider at any time, a full and complete disclosure of the interest shall be immediately made in writing to the City. Service Provider 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. Service Provider further warrants that no person having such an interest shall be employed in the performance of this contract. If City determines that a conflict exists and was not disclosed to the City, it may terminate the contract at will or for cause in accordance with paragraph 8. In the event Service Provider (or any of its officers, partners, principals, or employees acting with its authority) is convicted of a crime involving a public official arising out or in connection with the procurement of work to be done or payments to be made under this contract, City may terminate the contract at will or for cause in accordance with paragraph 8. Upon termination, Service Provider shall refund to the City any profits realized under this contract, and Service Provider shall be liable to the City for any costs incurred by the City in completing the work described in this contract. At the discretion of the City, these sanctions shall also be applicable to any such conviction obtained after the expiration or completion of the contract Service Provider warrants that no gratuities (including, but not limited to, entertainment or gifts) were offered or given by Service Provider to any officer or employee of the City with a view toward securing a contract or securing favorable treatment with respect to the awarding or amending or making of any determinations with respect to the performance of this contract. If City determines that such gratuities were or offered or given, it may terminate the contract at will or for cause in accordance with paragraph 8. The rights and remedies of this section shall in no way be considered for be construed as a waiver of any other rights or remedies available to the City under this contract or at law. 28. THIRD PARTY INTERESTS AND LIABILITIES. The City and Service Provider, including any of their respective agents or employees, shall not be liable to third parties for any act or omission of the other party. This contract is not intended to create any rights, powers, or interest in any third party and this agreement is entered into for the exclusive benefit of the City and Service Provider. 29. SURVIVAL OF RIGHTS AND OBLIGATIONS. The rights and obligations of the parties that by their nature survive termination or completion of this contract shall remain in full force and effect. GC 12 of 13 30. SEVERABILITY. In the event that any provision of this contract is rendered invalid or unenforceable by any valid act of Congress or of the New Hampshire legislature or any court of competent jurisdiction, or is found to be in violation of state statutes or regulations, the invalidity or unenforceability of any particular provision of this contract shall not affect any other provision, the contract shall be construed as if such invalid or unenforceable provisions were omitted, and the parties may renegotiate the invalid or unenforceable provisions for sole purpose of rectifying the invalidity or unenforceability. 31. MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT. This contract constitutes the entire contract between the City and Service Provider. The parties shall not be bound by or be liable for any statement, representation, promise, inducement, or understanding of any kind or nature not set forth in this contract. No changes, amendments, or modifications of any terms or conditions of the contract shall be valid unless reduced to writing and signed by both parties. 32. CHOICE OF LAW AND VENUE. This contract shall be governed exclusively by the laws of the State of New Hampshire and any litigation shall be brought in a court located in the State of New Hampshire. GC 13 of 13 Design Services & Project Management of Downtown Riverfront implementation October 31, 2019 EXHIBIT B EXHIBIT TO CONTRACT FOR PROFESSIONAL SERVICES BETWEEN VANASSE HANGEN BRUSTLIN, INC. AND THE CITY OF NASHUA, NEW HAMPSHIRE DOWNTOWN RIVERFRONT PROJECT November 3, 2019 This Exhibit includes details of the services to be performed, timing of the services, and compensation. This is an exhibit to the City's standard Contract for Professional Services which includes the City's General Conditions for Contracts, which are the general terms of the engagement between the City of Nashua and Vanasse Hangen Brustlin, Inc. (VHB). PROJECT DESCRIPTION The Scope of Services for this Agreement consists of the data collection, design, engineering and environmental documentation for planned improvements surrounding a downtown section of the Nashua River in Nashua, New Hampshire as described in the sections that follow. The project boundaries along the Nashua River are approximately from the Broad Street Parkway eastward to Main Street, and right-of-way survey will extend further east of Main Street SCOPE OF SERVICES The following represents VHB's proposed scope of services for the above project. The scope of work initially only includes the following phase: • Phase 1 - Conceptual Design and Estimates The Phases 2 and 3 scope of work for the Schematic Design (Preliminary Plans) and Design Development (Final Plans) phases will be added by contract amendment at a later date. The overall project includes a variety of components and the preliminary and final design and permitting should be defined with greater certainty following completion of the conceptual design phase. It is anticipated that the overall project will be broken into sub-project areas that may proceed under differing schedules because of factors such as property impacts, permitting, complexity and funding. 1 Design Services & Project Management of Downtown Riverfront Implementation October 31, 2019 PHASE 1 - CONCEPTUAL DESIGN AND ESTIMATES The conceptual design phase will include project initiation, data gathering, confirmation and refinement of the findings and recommendations in the Riverfront Plan. This phase will also include a variety of due diligence tasks that will help shape the schematic designs (preliminary plans) in Phase 2. Phase 1 will include developing conceptual cost estimates to determine whether the proposed improvements fall within a reasonable range of the available funding. The following tasks will be included in the Phase 1 scope of work. Estimated Duration: 20 weeks 1.1 Project Initiation & Design Criteria VHB will organize a project initiation meeting with City staff, invited officials and TIF Board members, and key representatives from the various disciplines of the design team. This meeting will serve to acquaint or reacquaint, ail parties, confirm communication protocols, discuss schedule and near-term milestones, and to essentially kick off the first phase of design. VHB will hold subsequent internal kickoff meetings, working meetings and site reviews with VHB staff and subconsultants to advance this phase in a coordinated fashion. Another important early action will be drafting design criteria for all aspects of the conceptual design for City approval. Estimated Duration: 2 weeks 1.2 Property and Topographic Surveys This task will consist of boundary survey and existing conditions survey including base plan production. This work will be performed by VHB's subconsultant Hayner/Swanson, Inc. (HSI). 1.2.1 Standard Boundary Survey HSI shall perform a "Standard Boundary Survey" Urban classification of the 17 properties located adjacent to the Nashua River between Broad Street and Main Street. The City also identified 10 additional properties that will be surveyed east of Main Street Those parcels are outside the existing TIF district but an extension of the riverfront improvements east of Main Street is reasonably foreseeable and the City feeis it is prudent to conduct the additional boundary survey in that area now. Those parcels are therefore included with this scope of work and associated fee. HSI will utilize historic data, where possible, to compile the previous surveys with the current surveys necessary under the Contract. The survey shall include the following: 1. Title research at the Hillsborough County of Deeds. Design Services & Project Management of Downtown Riverfront implementation October 31, 2019 2. Control survey locating the monuments and historic control to tie the properties together. 3. Location of monumentation necessary to determine the boundary lines. 4. Right of Way research at the City Clerk's and Engineer's offices necessary in determining the right of way limits of roads within and adjacent to the project limits. 5. Boundary analysis and determinations by HSI's licensed land surveyor. 6. Computations and compilations of the survey data. 1.2.2 Existing Conditions Survey and Plan A. HSI shall perform a Topographic Existing Conditions survey of portions of properties between Broad Street Parkway and Main Street as outlined in Exhibit B.l attached. The survey includes approximately 9 acres and 5,000 LF of road and river bank locations. The survey shall include the following: 1. Location and elevation of existing structures. 2. Elevations, locations, size of existing sewerage and drainage utilities within the survey area. 3. Location of existing utilities (well, gas, telephone and electric). 4. Location of edge of pavement of abutting streets. 5. Location of existing features (tree lines, signs, walls, etc.). 6. Location of wetland flagging provided by VHB wetland scientists. B. Upon completion of the survey HSI shall prepare 1"=40' scale base map for use for design of the proposed riverfront improvements by other project team members. These tasks assume adequate monumentation exists on or near the property to make an accurate boundary determination. If adequate monumentation does not exist, additional research and field work may be necessary. VHB will contact the City prior to HSI performing any additional work to discuss the costs associated with any additional work and a mutually agreed upon Contract Amendment shall be executed prior to continuation of the work. Note that in order to perform their work, HSI staff may need to access abutting properties. Although HSI will make every effort to locate the potential encroachments and boundary monuments without trespassing on abutting properties, it is advised that the City obtain verbal or written permission for temporary access by the field crews. If physical access is necessary, but denied by the abutters, then the City may want to seek legal advice on how to proceed. DELIVERABLES HSI's New Hampshire Licensed Land Surveyor shall sign and stamp the final plans and mail up to six (6) prints to the City and project team. In addition, HSI will provide an AutoCad drawing file with the associated survey data for use by the design team and the City. 3 Design Services & Project Management of Downtown Riverfront Implementation October 31, 2019 In the event additional topographic and/or bathymetric survey requirements are identified as design development proceeds, they will be addressed in subsequent contract amendments. Lead Consultant: HSI Support from: VHB, Halvorson Duration: Phased over 14 weeks 1.3 Environmental Documentation During this conceptual phase VHB will supplement the high-level, GlS-based environmental resource data gathering that was completed for the Riverfront Plan with detailed documentation and delineation. VHB wetland scientists will complete the required resource delineation and documentation along the shoreland for survey by HSI. Environmental resource and constraint information will be supplemented using a combination of database research and communication with local, state, and federal agencies. VHB will also review all relevant documentation that the City may have compiled from the private developments that surround the riverfront. Lead Consultant: VHB Support from: Halvorson Estimated Duration: 3 weeks, pending ensuing winter conditions 1.4 Conceptual Design VHB will work closely with Halvorson and H.L. Turner to develop conceptual design plans that include more detail than the schematics and illustrations that were in the Riverfront Plan. We expect that the plans will initially be shown on ortho photos amended with available GIS information and the City's 2-foot contours since ground survey will be ongoing during the early conceptual design phase. VHB and Halvorson will transition to using the ground survey information as it becomes available from HSI. As the design progresses the design team will be mindful of the "Six Big Ideas" that were defined during the Riverfront Plan: Connectivity, Environmental Stewardship, Access to the River, Recreation and Green Space, Flood Resiliency and Economic Development Early during the conceptual design phase, the project team will complete due diligence efforts to better understand all relevant constraints and opportunities within the project limits. The project team will also vet design alternatives during this phase with input from the City, other stakeholders and the public as appropriate. Deliverables during this phase will include sketch plans and design graphics of sufficient detail to convey the intended improvements. The design team will also develop approximately eight (8) 3D renderings of specific project features to illustrate the envisioned improvements to the public and other stakeholders. Design Services & Project Management of Downtown Riverfront implementation October 31, 2019 Following are descriptions of the various project components as they are currently understood along with proposed roles and responsibilities of the applicable design team members for each component. The below map provides a key to each of the primary numbered project components. Estimated Duration: 16 weeks 1.4.1 - New Access at Factory St. Extension: Task: Define the accessible route from Clock Tower Place to Factory Street Extension. This may require ramps and/or creative use of the available space to satisfy ADA requirements. Product: Provider up to two (2) design alternatives including plans, profiles, and sections as appropriate to define the proposed improvements and to illustrate proposed grading. Lead Project Team Consultant VHB Support from: HSI, Haivorson 5 Design Services & Project Management of Downtown Riverfront Implementation October 31, 2019 1.4.2 - Existing ADA Ramp and Cotton Transfer Pedestrian Bridge: Task: The project includes no significant changes to the existing south side ramp and ped bridge. Elements that may be included in this existing project facility include lighting and signage. Lumen Design Studio has already included the Cotton Transfer Bridge in their existing contract with the City and minimal additional effort is required during Phase 1 of this project Lead Consultant: VHB Support from: Haivorson, Lumen Design Studio, Fitzemeyer & Tocci 1.4.3 - Redesign of Factory St Extension: This area will include modifications to the existing Factory St Extension to better accommodate pedestrians and bicyclists, but to continue to provide access for emergency vehicles and maintenance operations. The improvements are expected to include lighting, signage, street furniture and possibly new pedestrian railings and river's edge enhancements. Care will be taken to maintain some trees and protect the stability of the existing walls. The design team will also evaluate replacing existing roadway paving with new materials that would reinforce the design aesthetic of the Riverwalk System and potentially allow stormwater infiltration. The design may include an over-water section of path to preserve parking in the vicinity of Perk de la Renaissance. The existing building in the vicinity of the Cotton Transfer Bridge may also be repurposed for activities such as boat rentals, or possibly removed. The work in this segment will include close coordination with the property owner. Product: Provide up to two (2) design alternatives including plans, profiles, critical sections, and precedent Images as appropriate to define the proposed improvements. Lead Consultant: VHB Support from: Haivorson 1.4.4 - Redesign Parking Lot + Renaissance Park: The conceptual design efforts in this area will include further development to test the concept ideas in the Riverfront Plan. The design may include filling lands adjacent to Water Street to create an amphitheater, new pathways, revised parking, waterfront plazas and landscape enhancements that include planting, hardscape, street furnishings and lighting. This area may also be explored for potential flood mitigation (excavation) and a cantilevered overlook that would take advantage of the prominent riverfront location. Mil I vhb Design Services & Project Management of Downtown Riverfront implementation October 31, 2019 Halvorson may also consider water features (fountain) for further design by specialty consultants by amendment. Product: Prepare up to three (3) design alternatives including plans, profiles, critical sections, and precedent images as appropriate to define the proposed improvements. Lead Consultant: Halvorson Support from: VHB, HLT 1.4.5 - New Cantilevered Boardwalk 8i Ramp: This important sub area includes the exploration of a new cantilevered ramp that would connect the lower Renaissance Park to the upper level Main Street and park. The expectation is that the boardwalk structure would be similar to the existing cantilevered boardwalk at the Peddler's Daughter building. This may include a ramp and/or a stair system to account for the grade change. If determined feasible, this element would be advanced through design. If determined infeasible, this element would be removed and possibly supplemented by sidewalk enhancements that connect Renaissance Park via Water Street to Main Street. Due diligence efforts by HL Turner during this phase will include interior building inspections to determine the potential for attaching the cantilevered boardwalk to the building. Product: Plans and sections and precedent images as appropriate to define the proposed improvements. Lead Consultant: HL Turner Support from: VHB, Halvorson, Lumen Design Studio, Fitzemeyer & Tocci 1.4.6 - Renovation to Bicentennial Park: Renovations to this small park adjacent to Main Street may include updates that refresh the streetscape materials and furnishings to tie together the aesthetics of the Riverfront design with the Park. There may be opportunities to update how public art is displayed in the park and lighting and ADA modifications may also be appropriate. The work does not include modifications to the existing railings or retaining walls other than modifications that may be part of the cantilevered boardwalk in area 5 above. Product: Provide two (2) design alternative including plans, sections, sketches and precedent images as appropriate to define the proposed improvements. Lead Consultant: Halvorson Support from: Lumen Design Studio, Fitzemeyer & Tocci, VHB 7 Mil ! Vhb Design Services & Project Management of Downtown Riverfront implementation October 31, 2019 1.4.7 - New Cantilevered Boardwalk: This important sub area includes the exploration of a new cantilevered boardwalk that would connect Main Street to the existing trail in area 9. The expectation is that the boardwalk structure would be similar to the existing cantilevered boardwalk at the Peddler's Daughter building. If determined feasible, this element would be advanced through design. If determined infeasible, this element would be removed and possibly replaced by pedestrian enhancements in sub-area 8. Due diligence efforts by HL Turner during this first phase will include interior and exterior building inspections to determine the potential for attaching the cantilevered boardwalk to the building. Product: Plans, sections, sketches and precedent images as appropriate to define the proposed improvements. Lead Consultant: HL Turner Support from: Halvorson, VHB, Lumen Design Studio, Fitzemeyer 8l Tocci 1.4.8 - Multipurpose Path adjacent to Railroad The potential to introduce a multipurpose path area adjacent to the existing Railroad to provide a formal multimodal connection to Main Street by Riverside Barbeque Company will be studied in this sub-area if it appears that the cantilevered boardwalk in the above section will not be feasible. This study will explore an accessible route from Main Street, paralleling the tracks heading east towards the parking lot and existing trail. This would likely involve redefining the paved surfaces to clearly demarcate the multiuse path apart from the railroad track, relying on obtaining rights to do so. If determined to be feasible, this would be advanced through design development only if it is determined that the cantilevered boardwalk alternative is not feasible. Product: Provide plans, typical cross sections, and sketches as appropriate to define the proposed improvements. Lead Consultant: VHB Support from: Halvorson 8 Design Services & Project Management of Downtown Riverfront implementation October 31, 2019 1.4.9 - Multipurpose Trail This subarea includes updates to the existing trail that may include: reconstruction and repaying of the trail if necessary or desired, pedestrian lighting, trail furnishings, small plazas for overlooks, and selected locations for public art. This may also include screening of the power substation. VHB will rely on information from HL Turner related to fioodplain elevations and restrictions and will likely avoid adding fill as part of any trail enhancements if possible. VHB will also examine potential landscape enhancements along the river's edge to enhance aesthetics and control invasives. Product: Plans, typical cross sections; sketches and one (1) perspective as appropriate to define the proposed improvements. Lead Consultant: VHB Support from: Halvorson, HL Turner, Lumen Design Studio, Fitzemeyer & Tocci 1.4.10 - New Floating Dock + Access Ramp. This area will include the assessment and conceptual design of a new pedestrian ramp and floating dock to provide improved river access. The ramp and dock are envisioned to be floating to avoid concerns with filling within the fioodway, and removable to prevent winter damage. HL Turner will conduct early due diligence to determine the configuration and feasibility of this structure. Product: Plans, sections and sketches as appropriate to define the proposed improvements. Lead Consultant: HL Turner Support from: VHB, Halvorson 1.4.11 - Existing Trail Improvements This sub area may include updates to the existing trail that would include: reconstruction and repaving of the trail where appropriate or necessary, lighting, trail furnishings, small plazas for overlooks or pause places, and selected locations for public art. This area may be explored for potential flood storage in upland areas if flood mitigation is needed due to proposed filling elsewhere. Product: Plans, typical cross sections, sketches and one (1) perspective as appropriate to define the proposed improvements. 9 Design Services & Project Management of Downtown Riverfront implementation October 31, 2019 Lead Consultant: VHB Support from: Halvorson, HL Turner 1.4.12 - Riverbank Restoration + New Access This sub area will iikely include enhancing the space between the paved trail and the water's edge. VHB will examine potential improvements along the river's edge to enhance aesthetics, improve visibility and access to the river, conduct bank stabilization, and potentially treat stormwater. There may also be opportunities for small overlooks, and selected locations for display of public art, signage and lighting. The City is currently addressing the invasives problem in advance of this project, but there may be opportunities to modify the ground cover on the banks to mitigate invasives long term. VHB will rely on guidance from HL Turner on floodplain elevations and restrictions on filling. Product: Include up to two (2) design alternatives Including plans, typical cross sections, sketches and one (1) perspective as appropriate to define the proposed improvements. Lead Consultant: VHB Support from: HL Turner, Halvorson 1.4.13- ADA Accessible Ramp to Cotton Transfer Bridge An ADA accessible bike/pedestrian ramp will be developed to connect the ground level multiuse path up to the Cotton Transfer pedestrian bridge. The intent will be to utilize similar design elements as the existing ADA ramp on the opposite side of the river. The work will be done with consideration for avoiding impacts to the floodplain and floodway. VHB will complete the design with input from Halvorson and will coordinate with Lumen Design Studio and Fitzemeyer & Tocci for lighting the structure. This project component may be a good candidate for an accelerated schedule and "early success" assuming environmental permitting will not hold it back. Product: Provide up to two (2) design alternatives including plans, sections and sketches as appropriate to define the proposed improvements. Lead Consultant: VHB Support from: HL Turner, Lumen Design, Fitzemeyer & Tocci 10 Design Services & Project Management of Downtown Riverfront implementation October 31, 2019 1.4.14 - Concept Design for Trail This sub area includes the conceptual design of a future trail that wiil connect westerly toward the broad Street Parkway and possibly beyond. The design will also account for a potential future multi-use bridge connection across the river, including planning for likely structure support locations. This area will require close coordination with the land owner to determine how the trail would integrate into their development plans. Product: Provide up to two (2) design alternatives including plans, typical cross sections, and sketches as appropriate to define the proposed improvements. Lead Consultant: VHB Support from: Halvorson, HSI 1.5 River Hydrology Any of the design that would result in fill within the floodplain and floodway must be coordinated with HL Turner since they will maintain the river hydraulics model. HL Turner will develop 2-, 5-, 10-, 50-, 100- and 500- year peak Nashua River flows using data/analysis of stream flow records from the USGS' Peppered, MA gage, transposed downriver to the project site. HL Turner will create a project design river hydraulic model using the current effective FEMA HEC-RAS model, and determine flow-water surface elevation profiles for the 2-through 500-year peak river flows, and the FEMA regulatory floodway zone. Based on the agreed upon project design flood resiliency and structural criteria, HL Turner will select and insert the design Concept Plan features into the project design hydraulic river model. HL Turner will provide VHB and the Project Team the results of the hydraulic impacts (i.e. water surface elevation rises, floodway impacts and river velocity increases) identifying impacts and recommendations on how to deal with the impacts (i.e. removal or reorientation of certain plan features). Lead Consultant: HL Turner Support from: VHB, Halvoson Estimated Duration: 10 weeks 1.6 Lighting It is understood that the majority of the conceptual Riverfront lighting design has already been advanced under an existing City contract by Lumen Design Studios with support from Fitzemeyer & Tocci for power supply. There may still be a need to involve these team members 11 Design Services & Project Management of Downtown Riverfront implementation October 31, 2019 as the conceptual design of the entire project progresses. It will be important to integrate their current lighting designs into any new work planned under this project. The current understanding is that most if not all of the proposed Riverfront lighting will be built as part of this project. Product: Plans, details and Images to Illustrate the proposed conceptual Improvements. Lead Consultant: Lumen Design Studio Support from: Fitzemeyer & Tocci, VHB Estimated Duration: 8 weeks 1.7 Wayfinding The City is currently advancing a downtown wayfinding plan designed by others. For the Riverfront project VHB will at most identify the conceptual recommended locations for wayfinding signage during the conceptual stage, but actual wayfinding sign development will be advanced in a later phase. For Phase 1 the wayfinding efforts will only include identifying conceptual sign placement locations and potential general content. Lead Consultant: VHB Support from: Halvorson Estimated Duration: 1 week, toward the end of Phase 1 1.8 Permitting Considerations Permit applications will be prepared after Phase 2, but during Phase 1 the design team will be cognizant of the potential permitting implications of every aspect of the design when important design decisions are being made. Section 7 of the Riverfront Plan included a relatively exhaustive evaluation of the permitting landscape for this project. As the design progresses, however, VHB environmental specialists will advise the design team relative to any permitting implications. In addition, The HL Turner Group will provide crucial input on any in-stream or shoreline work that could potentially affect flood levels. If sub-projects are identified for accelerated schedules it will be important to demonstrate that they have independent utility and can be permitted on their own rather than waiting for the entire project to be permitted. Lead Consultant: VHB Support from: HL Turner, Halvorson Estimated Duration: throughout Phase 1 1.9 Conceptual Cost Estimating VHB will manage and assemble cost estimates for each of the project components from the design team members in their respective disciplines. The HL Turner Group will provide costs for 12 Design Services & Project Management of Downtown Riverfront Implementation October 31, 2019 the proposed boardwalk and in-water features, and VHB and Halvorson will provide costing for site-civil, ADA ramp, paths, streetscape, and landscape features. Cost estimates will be conceptual at this early stage and based on major items and appropriate contingencies. We anticipate aligning the cost estimates with each of the so called "sub-projects" that evolve from the conceptual design such that they could easily be advanced on different tracks to construction if a need arises due to funding or permitting constraints or a desire by the City to break out individual projects. The design team will recommend contingency amounts in light of rapidly rising construction pricing. Experienced engineering and design staff will perform quality reviews of the estimates to help ensure that relevant factors affecting price are considered. VHB will also advise the City on potential risk factors associated with various project components because of the relatively limited design development during the conceptual design phase. Product: Itemized conceptual construction cost estimates broken down by sub-project areas. Lead Consultant: VHB Support from: AH Estimated Duration: 3 weeks at the end of phase 1 1.10 Public Engagement The proposed approach to public engagement during Phase 1 will be multipronged and relatively low key, as advised by the City. We do not envision holding workshops since there was heavy public involvement during the development of the Riverfront Plan. For Phase 1 we instead propose to hold one public meeting that will essentially be a project update and an opportunity for additional input and interaction. We also propose to participate in one City Leaders meeting at which the design team will present to the City's leadership and internal stakeholders. Design team members will also opportunistically attend other events in the City to show a presence and to informally interact with the public. The level of effort for this task is assumed to be minimal and would typically include staffing a table with project graphics at events such as farmer's markets or other seasonal public events. Attendance at two events is assumed. The last method of engagement would include posting project information on the city's website, as opposed to using the services of a third-party public relations firm such as co-Urbanize. We assume attendance at up to three public events during the Conceptual phase. The design team understands the importance of economic development and will provide the City with graphics and other collateral materials that can be used to promote the riverfront project to developers and prospective tenants. This will include renderings and 3D visualizations Design Services & Project Management of Downtown Riverfront implementation October 31, 2019 that will have already been developed as part of the conceptual design and specifically for the public engagement process and will also be used for social media during this phase. Lead Consultant: VHB Support from: Halvorson, HSI Estimated Duration: Continuous, and public and stakeholder meetings in second half of Phase 1. 1.12 Phase 1 Project Meetings The design team will attend regularly scheduled project meetings with the City at which a range of design and project development topics will be discussed. These meetings will generally be bi- weekly conference calls, with an assumed three (3) face-to-face meetings with key design team and City staff members for when plans, graphics and complex subjects will be reviewed. One (1) stakeholder meeting is included as well. We also envision informal drop-in meetings as needed and sharing desktops electronically to seek answers quickly during the design. One (1) working Design Team Meeting is included near the start of the project to collaboratively work through detailed design scope and tasks. We assume there will be eight (8) scheduled project coordination calls with the City during Phase 1. Lead Consultant: VHB Support from: All Estimated Duration: Throughout Phase 1 COMPENSATION VHB and its subconsultants will perform the Scope of Services on a time and materials basis. The estimated Upset Limit for this Scope of Services is $ 437,653. including labor, overhead, profit and direct expenses. VHB direct expenses will be billed at their actual cost without markup and VHB's subconsultantVHB s will be billed at their actual costs plus $5 %138,690 administrativ. e fees. Halvorson design $ 68,455. H.L Turner $ 99,500. Hayner/Swanson Inc (HSI) $ 82,100. Lumen Design Studio $ 8,550. Fitzemeyer & Tocci $ 26,158. Administrative Fees on VHB Subconsultants (5%) $ 14,200. PHASE 1 CONTRACT AMOUNT: $ 437,653. 14 THE CITY OF NASHUA 'The Gate City Financial Services Purchasing Department November 21, 2019 Memo #20-059 TO: MAYOR DONCHESS FINANCE COMMITTEE SUBJECT: CONTRACT FOR WET WEATHER INFLUENT SCREENING UPGRADE- CONSTRUCITON ENGINEERING SERVICES (VALUE: $148,800) DEPARTMENT: 169 WASTEWATER; FUND: WASTEWATER Please see the attached communication from David L. Boucher, Superintendent Wastewater Department dated November 21, 2019 for the information related to this contract. Pursuant to NRO § 5-83 Professional Services (A) In the purchase of accounting, architectural, auditing, engineering, legal, medical and ambulance services and purchases of independent professional consultant services for personnel, data processing, actuarial, planning, management and other comparable purchases competitive bidding shall not be required. The Superintendent Wastewater Department, the Board of Public Works (November 21, 2019 meeting) and the Purchasing Department recommend the award of this contract in an amount of $148,800 to Wright-Pierce of Thompson, ME. Dan Kooken Purchasing Manager Ce: D Boucher L Fautuex 229 Main Street • Nashua, New Hampshire 03061 • Phone (603) 589-3330 • Fax (603) 589-3233 City of Nashua, Public Works Division To: Board of Public Works Meeting Date: November 21, 2019 From: David L. Boucher, Superintendent Wastewater Department Re: Wet Weather Influent Screening Upgrade - Construction Phase Services C. Motion: To approve the contract with Wright Pierce of Thompson, ME in an amount not to exceed $148,800 for construction administration services for the Wet Weather Influent Screening Upgrade Project. Funding will be through: Department: 169- Wastewater; Fund: Wastewater; Activity: Wet Weather Influent Screening Upgrade. Attachments: Wright Pierce Engineering Cost Summary Discussion: The Wet Weather Influent Screening Upgrade Project was designed by Wright Pierce and involves the replacement of the 2 existing screen and rakes along with other upgrades to the Wet Weather Facility. The project was recently bid and Waterline Industries Corporation was the low bidder. The project will require construction management and Wright Pierce was asked to provide a scope and cost proposal for this service. Construction is estimated to last 11 months and Wright Pierce's services will include residential engineering and construction administration. Their cost proposal of $148,800 is approximately 12% of the $1,237,677 construction costs. These costs are considered reasonable since construction services are typically 10 to 12% of construction costs. EXHIBIT: FEE SCHEDULE COST OR PRICE SUMMARY FORMAT FOR SUBAGREEMENTS UNDER THE STATE REVOLVING FUND PROGRAM Form Approved DES 3/96 PART 1 - GENERAL 1. APPLICANT - 2. GRANT/LOAN NO. City of Nashua SAG 3. NAME OF CONTRACTOR OR SUBCONTRACTOR - 4. DATE OF PROPOSAL Wriqht-Pierce 10/28/2019 5. ADDRESS OF CONTRACTOR OR SUBCONTRACTOR ( Include ZIP ) 6. TYPE OF SERVICE TO BE FURNISHED 230 Commercial Way, Suite 302, Portsmouth, NH 03801 Nashua WWTF -WWFTF Screen Upgrade - Construction Administration, Resident Services, O&M Manual, Record Drawings, and Start-UD Services PART II - COST SUMMARY HOURLY ESTIMATED 7. DIRECT LABOR (Specify labor categories) HOURS RATE COST TOTAL Princlpal-in-Charge 4 $69.00 $276.00 Project Manager 70 $58.00 $4,060.00 Technical Advisor 16 $38.00 $608.00 Lead Project Engineer 318 $34.00 $10.812.00 Project Engineer 186 $28.00 $5.208.00 Sr. Project Engineer - Civil 0 $45.00 $0.00 Sr. Project Architect 12 $38.00 $456.00 Sr. Project Engineer - Structural 66 $60.00 $3.960.00 Project Engineer - Mechanical 5 $42.00 $210.00 Sr. Project Engineer - instrument. 66 $43.00 $2.838.00 Sr. Project Engineer - Electrical 52 $60.00 $3.120.00 CADD Operator 46 $28.00 $1,288.00 Admin. Assistant 34 $22.00 $748.00 Resident Project Representative 480 $28.00 $13.440.00 DIRECT LABOR TOTAL: $47,024 ESTIMATED 8. INDIRECT COSTS (Specify indirect cost pools) RATE X BASE = COST 167.97% 47,024.00 $78,986.21 INDIRECT COSTS TOTAL: $78,986 9. OTHER DIRECT COSTS a. TRAVEL FSTIMATFD COST (1) TRANSPORTATION 1 S3.643.54 $3.643.54 (2) Resident Services - Transportation allowance 1 $4,583.32 $4.583.32 TRAVEL COSTS TOTAL: $8,226.86 b . EQUIPMENT, MATERIALS, SUPPLIES ESTIMATED (Specify categories) QTY COST COST Printing, postage, telephone, fax, etc. 1 $1,961.91 $1.961.91 EQUIPMENT SUBTOTAL: $1.961.91 c. SUBCONTRACTS ESTIMATED COST Material Testing - SW Cole $0.00 Resident Services $0.00 $0.00 SUBCONTRACTS SUBTOTAL : $0.00 d. OTHER (Specify categories) ESTIMATED QTY COST COST Resident Project Representative OTHER SUBTOTAL : $0.00 e. OTHER DIRECT COSTS TOTAL : $10.189 10. TOTAL ESTIMATED COST $136,199 11. PROFIT 512,601 12. TOTAL PRICE $148,800.00 ENGINEERING CONSTRUCTION PHASE CONTRACT FOR PROFESSIONAL SERVICES FOR TREATMENT WORKS CITY OF NASHUA, NEW HAMPSHIRE This AGREEMENT made and entered into at HILLSBOROUGH County, New Hampshire, this day of 2019, by and between City/Tewfrof NASHUA, NEW HAMPSHIRE Hereinafter called the OWNER, and WRIGHT-PIERCE hereinafter called the ENGINEER. WITNESSETH: WHEREAS, the OWNER intends to construct Treatment Works in accordance with the contract —drawing - •• s and bidding- document— — s for the "Wet Weather Flow Treatment Facility• - Influent Screening*** Upgrade" dated September 2019, Hereinafter called the PROJECT, and WHEREAS, professional sanitary engineering services will be required for construction administration, resident engineering and related services, and WHEREAS, such services are of a distinct professional nature and hence not subject to the bidding process, NOW THEREFORE, in consideration of these premises and of the mutual covenants herein set forth, the OWNER hereby employs the ENGINEER to furnish the following engineering services in connection with the proposed PROJECT; and it is agreed by and between the OWNER and the ENGINEER as follows: Construction Phase Engineering 08/20/07 ENGINEERING CONSTRUCTION PHASE CONTRACT Page 2 of 6 For Professional Services for Treatment Works I. Services to be Performed by the ENGINEER i. Observing and reporting perfor- mance and qualifying tests required by A. Upon execution of this AGREEMENT, the EN- specifications. GINEER shall proceed with the general administration of construction and (full or part-time) inspection by qualified personnel of the contractor's work to assure j. Keeping daily records of construc- compliance with the contract documents and any tion progress and compiling same into coincident or subsequent changes or change orders for progress reports for submission to the the construction of the treatment works for the OWNER and DIVISION. (Town/City) of Nashua, New Hampshire Wet Weather Flow k. Verifying and keeping records of Treatment Facility - Influent Screening Upgrade . construction items of work accomplished for use as a basis of checking contractors1 Said services shall include, but shall not necessarily be monthly estimates. limited to: I. Consultation and advice during 1. General Construction Administration construction. a. Updating and modifications of m. Determination of need for and contract documents to meet changed site preparation of change orders for approval and project conditions or variations in by the OWNER and DIVISION based on State or Federal requirements. conditions found during construction and/or additions or modifications to the b-. Assistance in securing construction work requested by the OWNER and ap- bids-,-eonduct-bid-open'ing7-tabulation-and proved by the ENGINEER and the DIVI- analysis of bids, and recommendation SION and implemented at a price recom- regarding-award • of contract;- A copy of mended by the ENGINEER as equitable. the bid analysis will be furnished to the For change order items exceeding Department of Environmental Services, $10,000, the ENGINEER shall prepare an Water—Division—hereinafter called the independent cost estimate. DIVISION, and EPA. (Where applicable) n. Determination of "equality" for c. Completion of formal contract substitution of materials and equipment documents for the award of contracts. specified and securing DIVISION ap- proval thereof. d. Checking detail construction, shop and erection drawings submitted by the e: Provide and maintain construction contractor. control lines-and-grades;—For sewers •• offset lines and grade elevations, with cut e. Reviewing laboratory, shop, and depths atmanholes-at-t-reatment plant and mill test reports of materials and equip- pumping station sites base lines for ment. layout and boae-bmark-s? f. Preparation of drawings and p. Preparation of application, support- technical material as required ing and associated documents for Federal, supplementing and/or clarifying the State, and other grant or loan programs, contract documents. including monthly—reimbursement re- UUCalii/in ¿>f fpJ g. Review, verification, and approval of estimates for periodic and final pay- q. Preparation of certificate of sub- ments to the contractors for submittal to stantial completion and contract comple- the OWNER and the DIVISION. tion. h. Periodic inspection of work and r. Assist the OWNER in obtaining final inspection. the required project related approvals of State and Federal agencies. 2. Resident Inspection and Other Special Services Construction Phase Engineering 08/20/07 ENGINEERING CONSTRUCTION PHASE CONTRACT Page 2 of 6 For Professional Services for Treatment Works required to perform work under this AGREE- a. The ENGINEER agrees to provide MENT. at least one Registered Professional-Civil Engineer Resident Project C. The OWNER also agrees to comply with DI- Representative (RPR) on the project site VISION and Federal (Where applicable) requirements and one-or-more-inspectors as necessary as they relate to this project. (feH—OF—part time) to assist the ENGINEER in the work of General III. Compensation to be Paid the ENGINEER Administration as described under 1(A) and in observing construction activity for A. Method of Payment Amount of Fee compliance with the contract documents and any associated change orders. The 1. Payment to the ENGINEER, for services DIVISION shall be notified in writing of rendered, shall be according to the following the name of the RPR Resident Engineer, schedule: assistaat—engineers,—and—construction inspectors, and shall be provided with a Statements will be rendered (with modi- brief history of the RPR's Resident End fications if necessary) monthly with bill- nee*^ construction experience. The RPR ing by the hour and actual direct labor Resident Engineer and his inspeet-ors rates times a net multiplier of 2.9477 shall be in the employ of and under direct (Indirect Rate of 167.97% with mark- control of the ENGINEER. It is further up of 10%) rate by labor category with agreed that failure of the RPR Resident mark-up and incidental expenses in ac- Engineer- to administer the PROJECT to cordance with the attached fee schedule. the satisfaction of the DIVISION or OWNER is deemed to be sufficient basis 2. The OWNER agrees to pay and the for his removal from the PROJECT and ENGINEER agrees to accept for all services replacement. under this AGREEMENT, a fee not to exceed One-hundred-forty-eight thousand, b. The ENGINEER agrees to provide eight hundred Dollars supervision of initial start-up and opera- tion and for services during the twelve- ($148.800.00) month warranty period and to prepare the Project Performance Certification and B. Limits of All Payment associated documentation. 1. The ENGINEER further agrees that the c. Preparation of an Operation and following fee for his services under I (A)(1), for Maintenance Manual for approval by the Construction Administration on this PROJECT, DIVISION. After DIVISION approval, (exclusive of work performed by resident engi- the ENGINEER agrees to supply five (5) neering staff) is adequate to complete the work sets of the completed manual, one (1) of and shall not exceed which will be for the DIVISION. Seventy-five thousand, seven hundred d. Preparation of record drawings of Dollars the work as constructed. Three (3) sets of ($75.700.00) prints to be furnished, one (1) of which shall be for the DIVISION. 2. Payment to the ENGINEER for resident engineering and other special services shall be II. The OWNER'S Responsibilities as follows: A. Assist the ENGINEER by placing at his dis- a. Resident engineering and support- posal all available information pertinent to the PRO- ing staff (as agreed to by the OWNER and JECT, including previous reports and other data rela- tive to the reports. DIVISION) as described under I (A)(2- )(a) for a period of 60 working days, an B. Make provisions for the ENGINEER to enter amount not to exceed upon public and private lands, municipal Forty-four thousand, two facilities and industrial establishments as hundred Dollars Construction Phase Engineering 08/20/07 ENGINEERING CONSTRUCTION PHASE CONTRACT Page 2 of 6 For Professional Services for Treatment Works ($44.200.00) Jeffrey R Pinnette. PE, Wright-Pierce (name and address) Overtime shall be converted to equivalent 230 Commercial Way. Suite 301. Portsmouth, NH fractions of 8-hour days. If the number of working days for inspection personnel 03801 stated above is not sufficient to provide adequate inspection of the PROJECT, it * Resume clearly describing the candidate's is agreed that the additional cost of qualifications for the assignment is appended resident services may be negotiated with for convenience of reference. the OWNER and the DIVISION. Any proposed change in identity of the Project b. For supervision of initial start-up Engineer on the PROJECT shall first be approved by and operation of the project and Project the DIVISION before transfer of responsibility is Performance Certification as described made. Failure of the Project Engineer to administer the under I (A)(2)(b), during a period of PROJECT to the satisfaction of the OWNER and/or twelve (12) months, an amount not to ex- DIVISION is deemed sufficient basis for his removal ceed and replacement. Seventeen thousand, one hundred B. The ENGINEER agrees to be solely responsible Dollars for all bills or claims for payment for services rendered by others and for all services and materials employed ($17,100.00) in his work, and to indemnify and save harmless the c. For preparation of the Manual as OWNER, and all the OWNER'S officers, agents and described under I (A)(2)(c) and instruc- employees against all suits, claims or liability of every tions on its use, an amount not to exceed name and nature arising out of or in consequence of Six thousand Dollars the negligent acts or failures to act of the ENGINEER or others employed by him in the performance of the ($6,000.00) work covered by this AGREEMENT. & For special services, an amount C. The ENGINEER further agrees to procure and equal to the actual cost of 3iiefe-^¥orle maintain at his expense such workmen's compensation The actual cost shall include compens- insurance as is required by the statutes and public ation to the ENGINEER for his work on liability insurance in amounts adequate to provide these services. The ENGINEER also as- reasonable protection from claims for bodily injury, sures the OWNER that the moneys to bo death or property damage which may arise from his paid uader-this-rtem-are adequate-for-the performance and the performance of his employees work-proposed-aad-shall-not-exeeed under this AGREEMENT. Dollars mm D. All documents, including original drawings, de- sign calculations, work sheets, field notes, estimates, e. For preparation of the Record and other data shall remain the property of the OWN- Drawings as described under I (A)(2)(d), ER; they shall be transmitted to the OWNER in clean an amount not to exceed and orderly condition on demand by the OWNER; Five thousand, eight hundred Dollars however, these may be left in the possession of the ENGINEER at the OWNER'S discretion. ($5,800.00) E. The ENGINEER shall not sublet, assign or IV. Additional Covenants transfer any part of the ENGINEER'S services or obligations (except special services) under this A. The ENGINEER agrees to provide in active AGREEMENT without the prior approval and written charge of this PROJECT for the life of the contract a consent of the OWNER, and the contract shall be Project Engineer who is a permanent employee of the binding upon and inure to the benefit of the parties, ENGINEER and who a "qualified project engineer" is their successors and assigns. as defined under the DIVISION'S "Rules and Regula- tions for the Prequalification of Consulting Engi- F. It is further agreed that before any construction neers." The Project Engineer shall be* is undertaken the ENGINEER will assist the OWNER Construction Phase Engineering 08/20/07 ENGINEERING CONSTRUCTION PHASE CONTRACT Page 2 of 6 For Professional Services for Treatment Works or his authorized agent in providing the DIVISION AGREEMENT, without fault on the part of the with clear documentation certifying that the purchases ENGINEER, the ENGINEER shall benentitled of land have been secured to provide for location of te—compensation—as—determined—by—fee the treatment works and other associated structures DIVISION for all work performed to the and equipment as shown on the construction plans or satisfaction of the DIVISION and the OWNER, described in the specifications. Similar documentation and pursuant to-this-AGREEMENT. In order shall be submitted on approvals from the State High- that the ENGINEER shall receive payment way Department regarding location of the treatment under termination "notice, all plans, drawings; works and other project related facilities within rights- tracings—field notes, estimates, specifications; of-way and other lands under its jurisdiction. proposals, sketches, diagrams, and-calculations, together with all other-materials and data pre- G. The ENGINEER also agrees to provide in active pared in connectioi~Fwith-the-PROJECT shall be residence and -full-or part time control at the site of the transmitted to die OWNER in a- form acceptable proposed construction a DIVISION approved RPR to the OWNER and DIVISION. registered civil engineer and DRTSJ-QN—approved inspectors (full time-er-part-t-ime) as needed with the experience and other approved background to V. OWNER'S Terms and Conditions assist the ENGINEER in the work of General Administration and to assure contractor's Exhibit A - City of Nashua Professional Services conformance with the plans and specifications and General Terms and Conditions is hereby incorporated any approved coincident or subsequent changes or by reference as if fully set forth herein. change orders related to the PROJECT. The Resident registered Engineer for the life of this contract shall be J. Wiley Little. Wright-Pierce 230 Commercial Way. Suite 301. Portsmouth. Nil 03801 (Name and Address) (Append resume describing Candidate's qualifications) Any Proposed change in the identity of the resident engineer on this PROJECT must first be approved by the DIVISION before transfer of responsibility is made. Additionally, if it is found by the DIVISION that a resident engineer (or inspector) cannot or will not administer the PROJECT in a manner satisfactory to the DIVISION, the ENGINEER agrees to replace him promptly upon receipt of a written request from the DIVISION with a qualified resident engineer who will acceptably administer the PROJECT. It is further agreed that failure of the ENGINEER to abide by the above covenant is sufficient cause for removal from the DIVISION'S Roster of Prequalified Engineers. A: Tho-OWNER-shall-have the right at any time for any reason whatsoever to interrupt or terminate the work required of the ENGINEERrunder-this AGREEMENT, with a seven (7) day written notic-c- of—sueh—interruption- or termination transmitted to the ENGINEER by the OWNER. ÌB—fee—event—e£—teffmnatiea—ef—feia Construction Phase Engineering 08/20/07 ENGINEERING CONSTRUCTION PHASE CONTRACT Page 6 of 6 For Professional Services for Treatment Works IN WITNESS WHEREOF, the parties hereto have affixed their hand and seals at HILLSBOROUGH County, New Hampshire, the day, month, and year first above written. ENGINEER: WRIGHT-PIERCE By: (Authorized Representative*) Date: OWNER: CITY OF NASHUA By: (Authorized Representative) Date: APPROVED: ** DEPARTMENT OF ENVIRONMENTAL SERVICES Water Division By: (Authorized Representative) Date: * Signatures should be supported by appropriate document. ** It is agreed that as an act in furtherance of its statutory authority to approve engineering agreements for treatment works, the DIVI- SION'S approval does not impose any contractual obligation or liability on the State of New Hampshire, the Department of Environ- mental Services or the Division. I Construction Phase Engineering 08/20/07 WRIGHT-PIERCE WATER ~ WASTEWATER ~ STORMWATER ~ INFRASTRUCTURE Engineering a Better Environment WRIGHT-PIERCE CERTIFICATE OF VOTE I, Ryan T. Wingard, hereby certify that I am the duly elected Clerk of Wright-Pierce. I certify that the following is a true copy of a vote taken at a meeting of the board of directors of the corporation, duly called and held on April 3, 2019. at which a quorum of the board was present and voting. VOTED: That any one or all of the following officers of Wright-Pierce, on behalf of the corporation, are authorized to execute all Wright-Pierce contracts, both service agreements and general contractual obligations: John W. Braccio, President/CEO Paul F. BirkeL Vice President Richard N. Davee, Vice President Walter J. Flanagan III, Vice President Michael D. Giggey, Vice President Steven C. Hallowell, Vice President John R. Nelson, Vice President/Treasurer/CFO Christopher N. Pierce, Vice President Richard G. Protasowicki, Vice President Timothy R. Vadney, Vice President Ryan T. Wingard. Vice President/Clerk 1 hereby certify that said vote has not been amended or repealed and remains in full force and effect. Attest: Seal Date: Q-ZS-FòL'} Recognized for Engineering Excellence - Selected for Service & Value 600 Federai Street, Suite 2151 www.wright-pierce.com Andover, MA 01810 Phone: 978.415.6800 J Fax: 978.470.3558 EXHIBIT: FEE SCHEDULE COST OR PRICE SUMMARY FORMAT FOR SUBAGREEMENTS UNDER THE STATE REVOLVING FUND PROGRAM Form Approved DES 3/96 1 PART 1 - GENERAL | 1. APPLICANT- 2. GRANT/LOAN NO. City of Nashua SAG 3. NAME OF CONTRACTOR OR SUBCONTRACTOR - 4. DATE OF PROPOSAL Wriaht-Pierce 11/15/2019 5. ADDRESS OF CONTRACTOR OR SUBCONTRACTOR ( Include ZIP ) 6. TYPE OF SERVICE TO BE FURNISHED 230 Commercial Way, Suite 302, Portsmouth, NH 03801 Nashua WWTF -WWFTF Screen Upgrade - Construction Administration, Resident Services, O&M Manual, Record Drawings, and Start-uo Services j PART II-COST SUMMARY | HOURLY ESTIMATED 7. DIRECT LABOR (Specify labor categories) HOURS RATE COST TOTAL Principal-in-Charge 4 $69.00 $276.00 • . Project Manager 70 $58.00 $4,060.00 • • : " Technical Advisor 16 $38.00 $608.00 Lead Project Engineer 318 $34.00 $10,812.00 Project Engineer 186 $28.00 $5,208.00 Sr. Project Engineer - Civil 0 $45.00 $0.00 Sr. Project Architect 12 $38.00 $456.00 Sr. Project Engineer - Structural 66 $60.00 $3,960.00 Project Engineer - Mechanical 5 $42.00 $210.00 MîilfilSÂSf Sr. Project Engineer - Instrument. 66 $43.00 $2,838.00 Sr. Project Engineer - Electrical 52 $60.00 $3,120.00 . CADD Operator 46 $28.00 $1,288.00 Admin. Assistant 34 $22.00 $748.00 Resident Project Representative 480 $28.00 $13,440.00 DIRECT LABOR TOTAL: $47,024 ESTIMATED 8. INDIRECT COSTS (Specify indirect cost pools) RATE x BASE = COST 167.97% 47,024.00 $78,986.21 INDIRECT COSTS TOTAL: • $78,986 |9. OTHER DIRECT COSTS a. TRAVEL ESTIMATED COST (1) TRANSPORTATION 1 $3,643.54 $3,643.54 (2) Resident Services - Transportation allowance 1 $4,583.32 $4,583.32 TRAVEL COSTS TOTAL: $8,226.86 b . EQUIPMENT, MATERIALS, SUPPLIES ESTIMATED (Specify categories) QTY COST COST Printing, postage, telephone, fax, etc. 1 $1,961.91 $1,961.91 wzzmmm m^mmm EQUIPMENT SUBTOTAL: $1,961.91 m^tmitm c. SUBCONTRACTS ESTIMATED COST • Material Testing - SW Cole $0.00 Resident Services $0.00 • $0.00 SUBCONTRACTS SUBTOTAL : $0.00 d. OTHER (Specify categories) ESTIMATED QTY COST COST Resident Project Representative OTHER SUBTOTAL : . : -. v. - -- " $0.00 e. OTHER DIRECT COSTS TOTAL : • $10,189 10. TOTAL ESTIMATED COST $136,199 11. PROFIT $12,601 12. TOTAL PRICE $148,800.00 PART III - PRICE SUMMARY 13. COMPETITOR'S CATALOG LISTINGS, IN-HOUSE ESTIMATES, PRIOR QUOTES MARKET PROPOSED (Indicate basis for price comparison) PRICE PRICE (S) • '•i'-'.v' -:..C- W, /• . v •• ». •! •• !• •• ••• • - - - • • . - • • • • • . :: •;; ^ . .-v• • • • • . :. . ;. ; • • . PART IV - DIRECT LABOR BY CATEGORY 14. INSERT THE APPROPRIATE WORK CATEGORY IN THE TABLE BELOW. WORK CATEGORIES WOULD INCLUDE BUT NOT BE LIMITED TO THOSE CATEGORIES SHOWN IN THE CONTRACT DOCUMENTS SUCH AS DESIGN, SURVEY, SUBSURFACE, CADASTRAL, O&M MANUAL, ADMINISTRATION, INSPECTION, RECORD DWGS., START-UP, SPECIAL SERVICES, ETC. Work Estimates Average Estimated category Task O& M Hours Rate Cost Recor d Biddin g Admin . Manua l Start-u p Service s Residen t Service s Drawing s Construct . Principal-in-Charge 0 4 0 0 0 4 $ 69.00 $ 276.00 Project Manager 0 50 16 2 2 70 $ 58.00 $ 4,060.00 Technical Advisor 0 16 0 0 0 16 $ 38.00 $ 608.00 Lead Project Engineer 0 232 68 10 8 318 $ 34.00 $ 10,812.00 Project Engineer 0 120 24 30 12 186 $ 28.00 $ 5,208.00 Sr. Project Engineer - Civil 0 0 0 0 0 0 $ 45.00 $ Sr. Project Architect 0 12 0 0 0 12 $ 38.00 $ 456.00 Sr. Project Engineer - Structural 0 62 4 0 0 66 $ 60.00 $ 3,960.00 Project Engineer - Mechanical 0 5 0 0 0 5 $ 42.00 $ 210.00 Sr. Project Engineer - 0 46 16 4 0 66 Instrument. $ 43.00 $ 2,838.00 Sr. Project Engineer - 0 44 8 0 0 52 $ 60.00 $ 3,120.00 Electrical CADD Operator 0 10 0 6 30 46 $ 28.00 $ 1,288.00 Admin. Assistant 0 16 4 10 4 34 $ 22.00 $ 748.00 Resident Project 480 480 $ 28.00 $ 13,440.00 Representative 0 617 480 140 62 56 0 0 0 0 1,355 $ Total T Direct Labor Cost $ 47,024.00 comments: Page 2 of 2 TABUE B-1. SUMMARY OF ESTIMATED STAFF EFFORT (HOURS) AND COSTS BY TASK FOR HOME OFFICE SERVICES CONSTRUCTION PHASE SERVICES FOR THE NASHUA WWTF -WWFTF INFLUENT SCREEN UPGRADE NASHUA,NH Sr. Projoct Project Sr. Project Sr. Projoct Princf pal-in* Project Technical Load Projoct v Projoct Sr. Projoct Engineer-* Englnoer- Engineer' Engineer - CADD : •. Admin. .. DIRECT TASK DESCRIPTIONS Chargo Manager Advisor Englnoor Engineer Architect Structural Moclwnlcai Instrument. Electrical Operator Assistant TOTAL HOURS NON-LABOR SUBS LABOR COST TOTAL Typical Salary Rate $89.00 $58.00 $38.00 $34.00 $28.00 $38.00 $60.00 $42,00 $43.00 $60.00 $28.00 $22.00 1 Blddinq Service» 0 0 0 0 0 0 0 0 0 0 0 0 0 $0 $0 SO $0.0 0 2A Construction Administration 4 50 18 232 120 12 62 5 46 44 10 16 617 $2,987 $0 $24.688 $75,700.00 3A O&M Manual 0 2 0 10 30 0 0 0 4 0 e 10 62 $529 $0 $1,656 $6,000.00 SB Rocord Drnwlnn» 0 2 0 8 12 0 0 0 0 0 30 56 $930 $0 $1,652 $5,800.00 3C start-up 0 16 0 68 24 0 4 0 16 6 0 4 140 $1,158 $0 $5/408 $17,100.00 TOTAL HOURS 4 70 16 318 188 12 66 5 68 52 46 34 875 $5.605 $0 $33.584 $104,600.00 Direct Labor $33,584 Indirect Labor $56.411 Non-Labor $5,605 Subcontractor SO Sub Markup $0 Fixed Fes $9,000 Total Foo $104.600.00 TABLE B-2. SUMMARY OF ESTIMATED STAFF EFFORT (HOURS) AND COSTS BY TASK FOR FIELD OFFICE SERVICES CONSTRUCTION PHASE SERVICES FOR THE NASHUA WWTF -WWFTF INFLUENT SCREEN UPGRADE NASHUA, NH Resident Project Admin DIRECT TASK DESCRIPTIONS Representative Assistant RPR Assistant TOTAL HOURS NON-LABOR SUBS LABOR COST Labor Billing Rate $28.00 2B Resident Services 480 0 0 480 $4,583 $0 $13,440 60 days, 8 hrs/d on avg TOTAL HOURS 480 0 0 480 $4,583 $0 $13,440 TASK ZB Direct Labor $13,440.00 indirect Labor $22,575.17 Non-Labor $4,583.32 Subcontractor $0.00 Sub mark-up $0.00 Fixed fee $3,602 Total Fee $44,200.00 Jeffrey Pinnette, PE SENIOR PROJECT MANAGER Project Assignment: Project Manager Experience Summary Education Mr. Pinnette is a senior project manager at Wright-Pierce with a strong background M.S., Civil Engineering, in wastewater treatment, residuals management and odor control. He is currently University of Maine serving several New England clients as project manager and senior project engineer. B.S., Environmental Engineering, Rensselaer Polytechnic Institute Relevant Project Experience Professional Registration Wastewater Treatment New Hampshire Maine Primary Clarifier Upgrade, Nashua, NH Massachusetts . HVAC Upgrade, Nashua, NH • Headworks Screening Upgrade, Nashua, NH Experience Update of Standard Operating Procedures at Nashua WWTF, Nashua, NH 35 Years Wastewater Equipment Replacement Fund Update, Nashua, NH • Grit Removal Upgrade, Nashua, NH Joined Firm 1987 Facility Plan Evaluation, Plymouth, NH Facility Plan Update, South Portland, ME Professional Affiliations • Facility Plan Update and Energy Audit, Greater Augusta Utility District, New England Water Augusta, ME Environment Association Facility Plan Amendment, Woonsocket, Rl New Hampshire Water • Process Operations Review and Optimization, South Essex Sewerage District, Pollution Control Association Salem, MA WWTF Upgrade, Peppereíí, MA Maine Wastewater Control Association • Secondary System Upgrade, Fitchburg, MA • Local Limits Evaluation, Fitchburg, MA Water Environment • Asset Management Program Development, Winnipesaukee River Basin Federation Program, NH New England Biosolids and Aeration System Upgrade, Manchester, NH Residual Association Asset Management Program Development, Fitchburg, MA • Primary and Aeration System Improvements, Greater Lawrence Sanitary District, International Association on North Andover, MA Water Quality CEPT and Interim Phosphorus Removai, Fitchburg, MA Publications POTW Optimization Study, Fitchburg, MA Denis, B.M., Pinnette, J.R. • Wet Weather Facility Upgrade, South Portland, ME Tobiason, D.F., McNeil, F, Energy Audit and Physical Asset Evaluation, Biddeford, ME and Robertson, R. "Manchester, New • Secondary System Evaluation, Greater Lawrence Sanitary District, Hampshire, Retools Its North Andover, MA Aeration System for the Next • Secondary System Capacity Improvements, Fitchburg, MA Generation" NEWEA Journal, • WWTF Capacity Evaluation, Kennebec Sanitary Treatment District, Summer 2017. Waterville, ME • WWTF Capacity Evaluation, Rockland, ME WRIGHT-PIERCE Engineering a Retler Environment Jeffre_y_ Pi n n.e.tte.r_P.E. Hankins, W.D., Richardson, • WWTF Capacity Evaluation, Lewiston-Auburn Water Poilution Control Authority, C.M, Tobiason, D.F., Eames, Lewiston, ME F., and Pinnette, J.R., "Mitigating Wet Weather • WWTF Improvements for CSO Abatement, Greater Lawrence Sanitary District, and Filamentous Bacterial North Andover, MA Issues at the Lewiston- • Aeration System Blowers, Lewiston-Auburn Water Pollution Control Authority, Auburn WWTF", WEFTEC, Lewiston, ME New Orleans, Louisiana, 2004 Wet Weather Flow Capacity, Lewiston-Auburn Water Pollution Control Authority, Lewiston, ME Hogan, R.S., Garcia, M,M., • Capita! Improvement Plan, Yarmouth, ME Pinnette, J.R., and Thayer, M.W., "Energy Self WWTF Upgrade, Manchester-by-the-Sea, MA Sufficiency for New Biosolids • Activated Sludge Secondary Treatment System Upgrade, Lewiston-Auburn Water Digestion and Drying Pollution Control Authority, Lewiston, ME Facilities," Biocycle, July 2003 Westerly WWTP Expansion, Marlborough, MA Goodwin, J. P., Amenta, S. A.R., Delo, C., Dei Vecchio, Sludge Handling & Dewatering M., Pinnette, J.R., and Pytiar, T.S., "Odor Control Advances Anaerobic Digester Mixer Replacement, Nashua, NH at CoComposting Facility," Dewatering System Improvements, Nashua, NH Biocycle, January 2000 Dewatering Evaluation, Nashua, NH Dewatering System Upgrades, Keene, NH Presentations Pinnette, J.R., "Odor Control Dewatering System and Siloxane Removal Upgrades, Lewiston-Auburn Water for Wastewater Utilities," Pollution Control Authority, Lewiston, ME MWUA Annual Trade Show, Anaerobic Digester Heating Evaluation, Winnipesaukee River Basin Program, NH Portland, Maine, February 8, Phase 1 Centrifuge Dewatering Improvements, Manchester, NH 2017 Solids Handling Master Plan, Manchester, NH Pinnette, J.R., "Value Sludge Disposal Study, Somersworth, NH Engineering: What Projects Sludge Handling Evaluation, Lebanon, NH Need It, Why It's Important, When to Start the Process, Sludge Management Cost Review, EPA and How To Do It," MeWEA Spring Conference, Bangor, Maine, April 15, 2016 Beneficial Use of Residuals • Biosolids Drying Facility, New England Fertilizer Company / Massachusetts Water Capano, D.E. and J.R. Resources Authority, Quincy, MA Pinnette, "Case Study: New Composting Facility, Hooksett, NH Evaluation and Corrective Action at the Stamford Site Assessment of Sludge Processing Facility, Synagro Northeast WPCF" NEWEA Annual Biosolids Drying Facility, New England Fertilizer Company / Greater Lawrence Conference, Boston, January Sanitary District, North Andover, MA 27, 2016 Storage Facility Preliminary Design, Lewiston-Auburn Water Pollution Control Pinnette, J.R., and Cockburn, Authority, Lewiston, ME D.L., "Planning for Climate Sludge Handling Evaluation, Boothbay Harbor, ME Change at Your Wastewater Compost Facility Study, Lewiston-Auburn Water Pollution Control Authority, Treatment Facility: What You Should Be Doing Now," Lewiston, ME NEWEA Annual Conference, Biosolids Composting Facility Evaluation, Southern Maine Boston, Massachusetts Cost Model for New Agitated Bin Composting Facility, Hartford, CT January 27, 2015 Sludge Drying Facility, Fairhaven, MA Biowaste Composting Evaluation, Lewiston, ME WRIGHT-PIERCE Engineering a Keller Environment J. Wiley Little, EIT PROJECT ENGINEER Project Assignment: Project Engineer Experience Summary Education Mr. Little joined Wright-Pierce after first working as a summer intern. His B.S., Environmental responsibilities include preparation of reports and specifications; coordination with Engineering, University of regulatory and funding agencies; construction administration; and construction New Hampshire observation. Professional Registration New Hampshire, EIT Relevant Project Experience Experience 3 Years Wastewater Treatment Primary Clarifier Upgrade, Nashua, NH Joined Firm 2016 Headworks Screening Upgrade, Nashua, NH HVAC Upgrade, Nashua, NH Wastewater Treatment Facility Upgrade, Exeter, NH Nitrogen Tracking and Accounting System, Exeter, NH Dewatering and Septage Receiving Upgrade, North Conway, NH Solids Handling Upgrade, Manchester, NH Wastewater Treatment Facility, Pepperell, MA Wastewater Collection Systems • Lafayette Road Gravity Sewer Upgrade, Hampton, NH Church Street Force Main Upgrade, Hampton, NH • Main Pump Station Force Main Upgrade, Exeter, NH • Pump Station Master Pian, Portsmouth, NH Asset Management and GIS Data Collection • GIS Sewer Mapping, Berlin, NH • GIS Utility Mapping, Rochester, NH Other • Internal Master Specification Evaluation WRIGHT-PIERCE ^ Engin to ring a Roller Unvironmcnl EXHIBIT A CITY OF NASHUA PROFESSIONAL SERVICES GENERAL TERMS and CONDITIONS 1. DEFINITIONS GC-2 2. PROFESSIONAL ENGINEER STATUS GC-2 3. STANDARD OF CARE GC-2 4. CITY OF NASHUA REPRESENTATIVE GC--3 5. CHANGES TO SCOPE OF WORK GC--3 6. CITY OF NASHUA COOPERATION GC--3 7. DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES GC-3 8. TERMINATION OF CONTRACT GC--4 9. DISPUTE RESOLUTION GC--5 10. NO DAMAGES FOR DELAY GC--6 11. INSURANCE GC--6 12. INDEMNIFICATION GC--7 13. FISCAL CONTINGENCY GC--7 14. COMPENSATION GC--7 15. COMPLIANCE WITH APPLICABLE LAWS GC--7 16. NONDISCRIMINATION GC--8 17. ENDORSEMENT GC--8 1 8. ASSIGNM ENTS, TRANSFER, DELEGATION, OR SUBCONTRACTING GC--8 19. CITY INSPECTION OF CONTRACT MATERIALS GC--9 20. DISPOSITION OF CONTRACT MATERIALS GC--9 21. PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS GC-9 22. FINAL ACCEPTANCE GC--10 23. TAXES GC--10 24. NON-WAIVER OFTERMS AND CONDITIONS GC--10 25. RIGHTS AND REMEDIES GC--10 26. PROHIBITED INTERESTS GC--10 27. THIRD PARTY INTERESTS AND LIABILITIES GC--11 28. SURVIVAL OF RIGHTS AND OBLIGATIONS GC--11 29. SEVERABILITY GC--11 30. MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT GC--11 31. CHOICE OF LAW AND VENUE GC--11 GC 1 of 11 General Terms and Conditions 1. DEFINITIONS Unless otherwise required by the context, "Professional Engineer", and its successors, transferees and assignees (together "Professional Engineer") includes any of the Professional Engineer's consultants, sub consultants, contractors, and subcontractors 2. PROFESSIONAL ENGINEER STATUS The parties agree that Professional Engineer shall have the status of and shall perform all work under this contract as a Professional Engineer, maintaining control over all its consultants, sub consultants, contractors, or subcontractors. The only contractual relationship created by this contract is between the City of Nashua and Professional Engineer, and nothing in this contract shall create any contractual relationship between the City of Nashua and Professional Engineer's consultants, sub consultants, contractors, or subcontractors. The parties also agree that Professional Engineer is not a City of Nashua employee and that there shall be no: (1) Withholding of income taxes by the City of Nashua: (2) Industrial insurance coverage provided by the City of Nashua; (3) Participation in group insurance plans which may be available to employees of the City of Nashua; (4) Participation or contributions by either the Professional Engineer or the City of Nashua to the public employee's retirement system; (5) Accumulation of vacation leave or sick leave provided by the City of Nashua; (6) Unemployment compensation coverage provided by the City of Nashua. 3. STANDARD OF CARE Professional Engineer shall be responsible for the professional quality, technical accuracy, timely completion, and coordination of all work performed under this contract. Professional Engineer warrants that all work shall be performed with the degree of professional skill, care, diligence, and sound practices and judgment that are normally exercised by recognized professional firms with respect to services of a similar nature. It shall be the duty of Professional Engineer to assure at its own expense that all work is technically sound and in conformance with all applicable federal, state, and local laws, statutes, regulations, ordinances, orders, or other requirements. In addition to all other rights which the City of Nashua may have, Professional Engineer shall, at its own expense and without additional compensation, re-perform work to correct or revise any deficiencies, omissions, or errors in the work or the product of the work or which result from Professional Engineer's failure to perform in accordance with this standard of care. Any approval by the City of Nashua of any products or services furnished or used by Professional Engineer shall not in any way relieve Professional Engineer of the responsibility for professional and technical accuracy and adequacy of its work. City of Nashua review, approval, or acceptance of, or payment for any of Professional Engineer's work under this contract shall not operate as a waiver of any of the City of Nashua's rights or causes of action under this contract, and Professional Engineer shall be and remain liable in accordance with the terms of the contract and applicable law. Professional Engineer shall furnish competent and skilled personnel to perform the work under this contract. The City of Nashua reserves the right to approve key personnel assigned by Professional Engineer to perform work under this contract. Approved key personnel shall not be taken off of the project by Professional Engineer without the prior written approval of the City of Nashua, except in the event of termination of employment. Professional Engineer shall, if requested to do so by the City of Nashua, remove from the job any personnel whom the City of Nashua determines to be incompetent, dishonest, or uncooperative. GC 2 of 11 4. CITY OF NASHUA REPRESENTATIVE The City of Nashua may designate a City of Nashua representative for this contract. If designated, all notices, project materials, requests by Professional Engineer, and any other communication about the contract shall be addressed or be delivered to the City of Nashua Representative. 5. CHANGES TO SCOPE OF WORK The City of Nashua may, at any time, by written order, make changes to the general scope, character, or cost of this contract and in the services or work to be performed, either increasing or decreasing the scope, character, or cost of Professional Engineer's performance under the contract. Professional Engineer shall provide to the City of Nashua within 10 calendar days, a written proposal for accomplishing the change. The proposal for a change shall provide enough detail, including personnel hours for each sub-task and cost breakdowns of tasks, for the City of Nashua to be able to adequately analyze the proposal. The City of Nashua will then determine in writing if Professional Engineer should proceed with any or all of the proposed change. If the change causes an increase or a decrease in Professional Engineer's cost or time required for performance of the contract as a whole, an equitable adjustment shall be made and the contract accordingly modified in writing. Any claim of Professional Engineer for adjustment under this clause shall be asserted in writing within 30 days of the date the City of Nashua notified Professional Engineer of the change. When Professional Engineer seeks changes, Professional Engineer shall, before any work commences, estimate their effect on the cost of the contract and on its schedule and notify the City of Nashua in writing of the estimate. The proposal for a change shall provide enough detail, including personnel hours for each sub-task and cost breakdowns of tasks, for the City of Nashua to be able to adequately analyze the proposal. The City of Nashua will then determine in writing if Professional Engineer should proceed with any or all of the proposed change. - Except as provided in this paragraph, Professional Engineer shall implement no change unless the City of Nashua in writing approves the change. Unless otherwise agreed to in writing, the provisions of this contract shall apply to all changes. The City of Nashua may provide verbal approval of a change when the City of Nashua, in its sole discretion, determines that time is critical or public health and safety are of concern. Any verbal approval shall be confirmed in writing as soon as practicable. Any change undertaken without prior City of Nashua approval shall not be compensated and is, at the City of Nashua's election, sufficient reason for contract termination. 6. CITY OF NASHUA COOPERATION The City of Nashua agrees that its personnel will cooperate with Professional Engineer in the performance of its work under this contract and that such personnel will be available to Professional Engineer for consultation at reasonable times and after being given sufficient advance notice that will prevent conflict with their other responsibilities. The City of Nashua also agrees to provide Professional Engineer with access to City of Nashua records in a reasonable time and manner and to schedule items that require action by the Board of Public Works and Finance Committee in a timely manner. The City of Nashua and Professional Engineer also agree to attend all meetings called by the City of Nashua or Professional Engineer to discuss the work under the Contract, and that Professional Engineer may elect to conduct and record such meetings and shall later distribute prepared minutes of the meeting to the City of Nashua. 7. DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES Professional Engineer warrants that it has examined all contract documents, has brought all conflicts, errors, discrepancies, and ambiguities to the attention of the City of Nashua in writing, and has concluded that the City of Nashua's resolution of each matter is satisfactory to Professional Engineer. All future questions Professional Engineer may have concerning interpretation or clarification of this contract shall be submitted in writing to the City of Nashua within 10 calendar days of their arising. The writing shall state clearly and in full detail the basis for Professional Engineer's question or position. The City of Nashua representative shall render a GC 3 of 11 decision within 15 calendar days. The City of Nashua's decision on the matter is final. Any work affected by a conflict, error, omission, or discrepancy which has been performed by Professional Engineer prior to having received the City of Nashua's resolution shall be at Professional Engineer's risk and expense. At all times, Professional Engineer shall carry on the work under this contract and maintain and complete work in accordance with the requirements of the contract or determination of the City of Nashua. Professional Engineer is responsible for requesting clarification or interpretation and is solely liable for any cost or expense arising from its failure to do so. 8. TERMINATION OF CONTRACT A. TERMINATION, ABANDONMENT, OR SUSPENSION AT WILL. The City of Nashua, 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 City of Nashua chooses to terminate, abandon, or suspend all or part of the project, it shall provide Professional Engineer 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 part of the project and contract. Upon receipt of notice of termination, abandonment, or suspension at will, Professional Engineer shall: 1. Immediately discontinue work on the date and to the extent specified in the notice. 2. Place no further orders or subcontracts 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. 3. • Immediately make every reasonable effort to obtain cancellation upon terms satisfactory to the City of Nashua of all orders or subcontracts to the extent they relate to the performance of work terminated, abandoned, or suspended under the notice, assign to the City of Nashua any orders or subcontracts specified in the notice, and revoke agreements specified in the notice. 4. Not resume work after the effective date of a notice of suspension until receipt of a written notice from the City of Nashua to resume performance. In the event of a termination, abandonment, or suspension at will, Professional Engineer shall receive all amounts due and not previously paid to Professional Engineer 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. B. TERMINATION FOR CAUSE This agreement may be terminated by the City of Nashua on 10 calendar day's written notice to Professional Engineer in the event of a failure by Professional Engineer 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 of Nashua, to complete or make sufficient progress on the work in a timely and professional manner. Professional Engineer shall be given an opportunity for consultation with the City of Nashua prior to the effective date of the termination. Professional Engineer may terminate the contract on 10 calendar days written notice if, through no fault of Professional Engineer, the City of Nashua fails to pay Professional Engineer for 45 days after the date of approval by the City of Nashua of any Application for Payment. Upon receipt of notice of termination for cause, Professional Engineer shall: 1. Immediately discontinue work on the date and to the extent specified in the notice. 2. Provide the City of Nashua with a list of all unperformed services. GC 4 of 11 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 Nashua 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 of Nashua 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 of Nashua to resume performance. In the event of a termination for cause, Professional Engineer shall receive all amounts due and not previously paid to Professional Engineer 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 of Nashua by reasons of Professional Engineer's failure. Professional Engineer shall not be relieved of liability to the City of Nashua for damages sustained from the failure, and the City of Nashua may withhold any payment to the Professional Engineer until such time as the exact amount of damages due to the City of Nashua is determined. All claims for payment by the Professional Engineer must be submitted to the City of Nashua within 30 days of the effective date of the notice of termination. If after termination for the failure of Professional Engineer to adhere to any of the terms and conditions of the contract or for failure to satisfactorily, in the sole opinion of the City of Nashua, to complete or make sufficient progress on the work in a timely and professional manner, it is determined that Professional Engineer had not so failed, the termination shall be deemed to have been a termination at will. In that event, the City of Nashua shall, if necessary, make an adjustment in the compensation paid to Professional Engineer such that Professional Engineer receives total compensation in the same amount as it would have received in the event of a termination-at-wil 1. C. GENERAL PROVISIONS FOR TERMINATION Upon termination of the contract, the City of Nashua may take over the work and prosecute it to completion by agreement with another party or otherwise. In the event Professional Engineer shall cease conducting business, the City of Nashua shall have the right to solicit applications for employment from any employee of the Professional Engineer assigned to the performance of the contract. Neither party shall be considered in default of the performance of its obligations hereunder to the extent that 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 Professional Engineer's principals, officers, employees, agents, subcontractors, consultants, vendors, or suppliers are expressly recognized to be within Professional Engineer's control. 9. 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 City of Nashua Representative and a Professional Engineer Representative. At all times, Professional Engineer 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 City of Nashua. 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 GC 5 of 11 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. 10. NO DAMAGES FOR DELAY Apart from a written extension of time, no payment, compensation, or adjustment of any kind shall be made to Professional Engineer for damages because of hindrances or delays in the progress of the work from any cause, and Professional Engineer agrees to accept in full satisfaction of such hindrances and delays any extension of time that the City of Nashua may provide. 11. INSURANCE Professional Engineer 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; > $ 1,000,000 Combined Single Limit Automobile Liability; ^Coverage must include all owned, non-owned and hired vehicles. > $ 1,000,000 Profession Liability; > and Workers' Compensation Coverage in compliance with the State of New Hampshire statutes, $100,000/$500,000/$100,000. Professional Engineer shall maintain in effect at all times during the performance under this contract all specified insurance coverage with insurers. None of the requirements as to types and limits to be maintained by Professional Engineer are intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by Professional Engineer under this contract. The City of Nashua shall not maintain any insurance on behalf of Professional Engineer. Subcontractors are subject to the same insurance requirements as Professional Engineer and it shall be the Professional Engineer's responsibility to ensure compliance of this requirement. Professional Engineer will provide the City of Nashua with certificates of insurance for coverage as listed below and endorsements affecting coverage required by the contract within ten calendar days after the City of Nashua issues the notice of award. The City of Nashua 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 City of Nashua as an additional insured and reflect on the certificate of insurance. Professional Engineer is responsible for filing updated certificates of insurance with the City of Nashua'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. ^ If aggregate limits of less than $2,000,000 are imposed on bodily injury and property damage, Professional Engineer 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 Professional Engineer of its responsibilities or limit the amount of its liability to the City of Nashua or other persons, and Professional Engineer 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 City of Nashua shall be called upon to contribute to a loss. GC 6 of 11 > Professional Engineer is responsible for and required to remedy all damage or loss to any property, including property of the City of Nashua, caused in whole or part by Professional Engineer or anyone employed, directed, or supervised by Professional Engineer. 12. INDEMNIFICATION Regardless of any coverage provided by any insurance, Professional Engineer agrees to indemnify and hold harmless the City of Nashua, 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 mamier 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 Professional Engineer or of anyone acting under its direction or control or on its behalf in connection with or incidental to the performance of this contract. Professional Engineer's indemnity 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. 13. FISCAL CONTINGENCY All payments under this contract are contingent upon the availability to the City of Nashua of the necessary funds. This contract shall terminate and the City of Nashua's obligations under it shall be extinguished at the end of any fiscal year in which the City of Nashua fails to appropriate monies for the ensuing fiscal year sufficient for the performance of this contract. Nothing in this contract shall be construed to provide Professional Engineer with a right of payment over any other entity. Any funds obligated by the City of Nashua under this contract that are not paid to Professional Engineer shall automatically revert to the City of Nashua's discretionary control upon the completion, termination, or cancellation of the agreement. The City of Nashua shall not have any obligation to re-award or to provide, in any manner, the unexpended funds to Professional Engineer. Professional Engineer shall have no claim of any sort to the unexpended funds. 14. COMPENSATION Review by the City of Nashua of Professional Engineer's submitted monthly invoice forms and progress reports for payment will be promptly accomplished by the City of Nashua. If there is insufficient information, the City of Nashua may require Professional Engineer to submit additional information. Unless the City of Nashua, in its sole discretion, decides otherwise, the City of Nashua shall pay Professional Engineer in full within 30 days of approval of the submitted monthly invoice forms and progress reports. 15. COMPLIANCE WITH APPLICABLE LAWS Professional Engineer, at all times, shall fully and completely comply with all applicable local, state and federal laws, statutes, regulations, ordinances, orders, or requirements of any sort in carrying out the obligations of this contract, including, but not limited to, all federal, state, and local accounting procedures and requirements, all immigration and naturalization laws, and the Americans With Disabilities Act. Professional Engineer shall, throughout the period services are to be performed under this contract, monitor for any changes to the applicable laws, statutes, regulations, ordinances, orders, or requirements, shall promptly notify the City of Nashua in writing of any changes to the same relating to or affecting this contract, and shall submit detailed documentation of any effect of the change in terms of both time and cost of performing the contract. 16. NONDISCRIMINATION If applicable or required under any federal or state law, statute, regulation, order, or other requirement, Professional Engineer agrees to the following terms. Professional Engineer will not discriminate against any employee or applicant for employment because of GC 7 of 11 physical or mental handicap in regard to any position for which the employee or applicant for employment is qualified. Professional Engineer agrees to take affirmative action to employ, advance in employment, or to otherwise treat qualified, handicapped individuals without discrimination based upon physical or mental handicap in all employment practices, including but not limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff, termination, rates of pay, or other forms of compensation and selection for training, including apprenticeship. Without limitation of the foregoing, Professional Engineer's attention is directed to "Title 41"Public Contracts and Property Management" C.F.R. Subtitle B "Other Provisions Relating to Public Contracts" Section 60 "Office of Federal Contract Compliance Programs, Equal Employment, Department of Labor" which, by this reference, is incorporated in this contract. Professional Engineer agrees to assist disadvantaged business enterprises in obtaining business opportunities by identifying and encouraging disadvantaged suppliers, consultants, and sub consultants to participate to the extent possible, consistent with their qualification, quality of work, and obligation of Professional Engineer under this contract. In connection with the performance of work under this contract, Professional Engineer agrees not to discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, age, or sexual orientation. This agreement includes, but is not limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Professional Engineer agrees, if applicable, to insert these provisions in all subcontracts, except for subcontracts for standard commercial supplies or raw materials. Any violation of any applicable provision by Professional Engineer shall constitute a material breach of the contract. 17. ENDORSEMENT Professional Engineer shall seal and/or stamp and sign professional documents including drawings, plans, maps, reports, specifications, and other instruments of service prepared by Professional Engineer or under its direction as required under the laws of the State of New Hampshire. 18. ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING Professional Engineer shall not assign, transfer, delegate, or subcontract any rights, obligations, or duties under this contract without the prior written consent of the City of Nashua. Any such assignment, transfer, delegation, or subcontracting without the prior written consent of the City of Nashua is void. Any consent of the City of Nashua to any assignment, transfer, delegation, or subcontracting shall only apply to the incidents expressed and provided for in the written consent and shall not be deemed to be a consent to any subsequent assignment, transfer, delegation, or subcontracting. Any such assignment, transfer, delegation, or subcontract shall require compliance with or shall incorporate all terms and conditions set forth in this agreement, including all incorporated Exhibits and written amendments or modifications. Subject to the foregoing provisions, the contract inures to the benefit of, and is binding upon, the successors and assigns of the parties. 19. CITY INSPECTION OF CONTRACT MATERIALS The books, records, documents and accounting procedures and practices of Professional Engineer related to this contract shall be subject to inspection, examination and audit by the City of Nashua, including, but not limited to, the contracting agency, the Board of Public Works, Corporation Counsel, and, if applicable, the Comptroller General of the United States, or any authorized representative of those entities. 20. DISPOSITION OF CONTRACT MATERIALS Any books, reports, studies, photographs, negatives or other documents, data, drawings or other materials, including but not limited to those contained in media of any sort (e.g., electronic, magnetic, digital) prepared by or supplied to Professional GC 8 of 11 Engineer in the performance of its obligations under this contract shall be the exclusive property of the City of Nashua and all such materials shall be remitted and delivered, at Professional Engineer's expense, by Professional Engineer to the City of Nashua upon completion, termination, or cancellation of this contract. Alternatively, if the City of Nashua provides its written approval to Professional Engineer, any books, reports, studies, photographs, negatives or other documents, data, drawings or other materials including but not limited to those contained in media of any sort (e.g., electronic, magnetic, digital) prepared by or supplied to Professional Engineer in the performance of its obligations under this contract must be retained by Professional Engineer for a minimum of four years after final payment is made and all other pending matters are closed. If, at any time during the retention period, the City of Nashua, in writing, requests any or all of the materials, then Professional Engineer shall promptly remit and deliver the materials, at Professional Engineer's expense, to the City of Nashua. Professional Engineer shall not use, willingly allow or cause to have such materials used for any purpose other than the performance of Professional Engineer's obligations under this contract without the prior written consent of the City of Nashua. 21. PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS Professional Engineer expressly agrees that all documents ever submitted, filed, or deposited with the City of Nashua by Professional Engineer (including those remitted to the City of Nashua by Professional Engineer pursuant to paragraph 20), unless designated as confidential by a specific statue of the State of New Hampshire, shall be treated as public records and shall be available for inspection and copying by any person, or any governmental entity. No books, reports, studies, photographs, negatives or other documents, data, drawings or other materials including but not limited to those contained in media of any sort (e.g., electronic, magnetic, digital) prepared by or supplied to Professional Engineer in the performance of its obligations under this contract shall be the subject of any application for a copyright or patent by or on behalf of Professional Engineer. Hie City of Nashua shall have the right to reproduce any such materials. Professional Engineer expressly and indefmitely waives all of its rights to bring, including but not limited to, by way of complaint, interpleader, intervention, or any third party practice, any claims, demands, suits, actions, judgments, or executions, for damages or any other relief, in any administrative or judicial forum, against the City of Nas*hua or any of its officers or employees, in either their official or individual capacity of the City of Nashua, for violations of or infringement of the copyright or patent laws of the United States or of any other nation. Professional Engineer agrees to indemnify, to defend, and to hold harmless the City of Nashua, its representatives, and employees from any claim or action seeking to impose liability, costs, and attorney fees incurred as a result of or in connection with any claim, whether rightful or otherwise, that any material prepared by or supplied to Professional Engineer infringes any copyright or that any equipment, material, or process (or any part thereof) specified by Professional Engineer infringes any patent. Professional Engineer shall have the right, in order to avoid such claims or actions, to substitute at its expense non-infringing materials, concepts, products, or processes, or to modify such infringing materials, concepts, products, or processes so they become non-infringing, or to obtain the necessary licenses to use the infringing materials, concepts, products, or processes, provided that such substituted or modified materials, concepts, products, or processes shall meet all the requirements and be subject to all the terms and conditions of this contract. 22. FINAL ACCEPTANCE Upon completion of all work under the contract, Professional Engineer shall notify the City of Nashua in writing of the date of the completion of the work and request confirmation of the completion from the City of Nashua. Upon receipt of the notice, the City of Nashua shall confirm to Professional Engineer in writing that the whole of the work was completed on the date indicated in the notice or provide Professional Engineer with a written list of work not completed. With respect to work listed by the City of Nashua as incomplete, GC 9 of 11 Professional Engineer shall promptly complete the work and the final acceptance procedure shall be repeated. The date of final acceptance of a project by the City of Nashua shall be the date upon which the Board of Public Works or other designated official accepts and approves the notice of completion. 23. TAXES Professional Engineer shall pay all taxes, levies, duties, and assessments of every nature due in connection with any work performed under the contract and make any and all payroll deductions required by law. The contract sum and agreed variations to it shall include all taxes imposed by law. Professional Engineer hereby indemnifies and holds harmless the City of Nashua from any liability on account of any and all such taxes, levies, duties, assessments, and deductions. 24. NON-WAIVER OF TERMS AND CONDITIONS None of the terms and conditions of this contract shall be considered waived by the City of Nashua. There shall be no waiver of any past or future default, breach, or modification of any of the terms and conditions of the contract unless expressly stipulated to by the City of Nashua in a written waiver. 25. RIGHTS AND REMEDIES The duties and obligations imposed by the contract and the rights and remedies available under the contract shall be in addition to and not a limitation of any duties, obligations, rights, and remedies otherwise imposed or available by law. 26. PROHIBITED INTERESTS Professional Engineer shall not allow any officer or employee of the City of Nashua to have any indirect or direct interest in this contract or the proceeds of this contract. Professional Engineer warrants that no officer or employee of the City of Nashua has any direct or indirect interest, whether contractual, noncontractual, financial or otherwise, in this contract or in the business of Professional Engineer. If any such interest comes to the attention of Professional Engineer at any time, a full and complete disclosure of the interest shall be immediately made in writing to the City of Nashua. Professional Engineer 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. Professional Engineer further warrants that no person having such an interest shall be employed in the performance of this contract. If City of Nashua determines that a conflict exists and was not disclosed to the City of Nashua, it may terminate the contract at will or for cause in accordance with paragraph 8. In the event Professional Engineer (or any of its officers, partners, principals, or employees acting with its authority) is convicted of a crime involving a public official arising out or in connection with the procurement of work to be done or payments to be made under this contract, City of Nashua may terminate the contract at will or for cause in accordance with paragraph 8. Upon termination, Professional Engineer shall refund to the City of Nashua any profits realized under this contract, and Professional Engineer shall be liable to the City of Nashua for any costs incurred by the City of Nashua in completing the work described in this contract. At the discretion of the City of Nashua, these sanctions shall also be applicable to any such conviction obtained after the expiration or completion of the contract. Professional Engineer warrants that no gratuities (including, but not limited to, entertainment or gifts) were offered or given by Professional Engineer to any officer or employee of the City of Nashua with a view toward securing a contract or securing favorable treatment with respect to the awarding or amending or making of any determinations with respect to the performance of this contract. If City of Nashua determines that such gratuities were or offered or given, it may terminate the contract at will or for cause in accordance with paragraph 8. The rights and remedies of this section shall in no way be considered for be construed as a waiver of any other rights or remedies available to the City of Nashua under this contract or at law. GC 10 of 11 27. THIRD PARTY INTERESTS AND LIABILITIES The City of Nashua and Professional Engineer, including any of their respective agents or employees, shall not be liable to third parties for any act or omission of the other party. This contract is not intended to create any rights, powers, or interest in any third party and this agreement is entered into for the exclusive benefit of the City of Nashua and Professional Engineer. 28. SURVIVAL OF RIGHTS AND OBLIGATIONS The rights and obligations of the parties that by their nature survive termination or completion of this contract shall remain in full force and effect. 29. SEVERABILITY In the event that any provision of this contract is rendered invalid or unenforceable by any valid act of Congress or of the New Hampshire legislature or any court of competent jurisdiction, or is found to be in violation of state statutes or regulations, the invalidity or unenforceability of any particular provision of this contract shall not affect any other provision, the contract shall be construed as if such invalid or unenforceable provisions were omitted, and the parties may renegotiate the invalid or unenforceable provisions for sole purpose of rectifying the invalidity or unenforceability. 30. MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT This contract constitutes the entire contract between the City of Nashua and Professional Engineer. The parties shall not be bound by or be liable for any statement, representation, promise, inducement, or understanding of any kind or nature not set forth in this contract. No changes, amendments, or modifications of any terms or conditions of the contract shall be valid unless reduced to writing and signed by both parties. 31. 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. GC 11 of 11 THE CITY OF NASHUA 'The Gate City Financial S en/ices Purchasing Department November 21, 2019 Memo #20-060 TO: MAYOR DONCHESS FINANCE COMMITTEE SUBJECT: CONTRACT FOR WET WEATHER INFLUENT SCREENING UPGRADE - CONSTRUCTION SERVICES (VALUE: $1,237,677) DEPARTMENT: 169 WASTEWATER; FUND: WASTEWATER Please see the attached communication from David L. Boucher, Superintendent Wastewater Department dated November 21, 2019 for the information related to this contract. 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 Superintendent Wastewater Department, the Board of Public Works (November 21, 2019 meeting) and the Purchasing Department recommend the award of this contract in an amount of $1,237,677 to Waterline Industries Corporation of Seabrook, NH. Dan Kooken Purchasing Manager Ce: D Boucher L Fautuex 229 Main Street • Nashua, New Hampshire 03061 • Phone (603) 589-3330 • Fax (603) 589-3233 City of Nashua, Public Works Division To: Board of Public Works Meeting Date: November 21,2019 From: David L. Boucher, Superintendent Wastewater Department Re: Wet Weather Influent Screening Upgrade B. Motion: To approve the contract with Waterline Industries Corporation of Seabrook, NH in an amount of $1,237,677 for replacing the screen and rakes in the Wet Weather Facility. Funding will be through: Department: 169- Wastewater; Fund: Wastewater: Activity: Wet Weather Facility Influent Screening Upgrade. Discussion: The Wet Weather Facility located at 2 Sawmill Road in Nashua is designed to treat flows at the wastewater facility above 50 million gallons per day. Over the years, the facility has experience issues with its two influent screens. Parts of the screen fields have become bowed allowing large material to pass through and clog pumps within the Wet Weather Facility. Another issue is that the rake mechanisms do not remove debris properly from the screen field allowing flow to back-up into the interceptor creating other issues and causing the Wet Weather Facility to be ineffective. Several interim solutions have been tried to correct the issues with little success. The Wet Weather Facility screens and rakes need to be replaced in order for the facility to operate correctly. In addition to this project, other upgrades include: improving above ground access hatches, installing access ladders partially down each screen vault and installing hoists at the wet well to aid in the maintenance of the lower portion of the screening units. This project went out to bid on September 26th. Two bids were received at the bid opening on October 28th: TBuck in the amount of $1,728,507 and Waterline Industries in the amount of $1,237,677. References provided by Waterline Industries were checked by consultant Wright Pierce and all were favorable. Wright Pierce also provided a recommendation to award the project to Waterline Industries. CITY OF NASHUA, NEW HAMPSHIRE CONTRACT DRAWINGS FOR WET WEATHER FLOW TREATMENT FACILITY INFLUENT SCREENING UPGRADE SEPTEMBER 2019 WRIGHT-PIERCE Engineering A Better Environment FOR REVIEW ..„ FOR BIDDING SEPTEMBER 2019 888.62t.8156 I www.wridit-pierce.com ' WP PROJECT Wo. 13691 Iliilllll üii [lifiii llsifpfg iiiiui illiiiiis II Hill llilüil I11fIst '111 . aims i Hill! \\n I « 5 iiiiui ¡¡Ml! = i § t i ri l l l |,, | »I'lP'liljTIIII^ l! !ililli |lili llli»!!!l!l>lllll!IIMI!l |i l l\ 1 Iii S i 3 al ä I ill5 I sil j S i 5 * ' ° 1 e CITY OF NASHUA NEW HAMPSHIRE WET WEATHER FLOW TREATMENT FACILITY WRIGHT-PIERCE ^ INFLUENT SCREENING UPGRADE K § Engineering a Better Environment JiJKL {TtLrCtlftM MI1U. tiiLfeS ANS UMVUTiO« $&B,621-Bt5& | www,wrighlere«-csm I CITY OF NASHUA, NEW HAMPSHIRE WET WEATHER FLOW TREATMENT FACILITY WRIGHT-PIERCE ^ INFLUENT SCREENING UPGRADE a Uglier Environment «TT Wt At* LA KWf |t ADO* rMIUt to* PUMUtY^I HAN eaa.felt J156 I Mww.wrixhl-piem.com ii n i i| | ii in iffli n II m imi ill I ii ' i! II HI |p I! i»!5 ii ! ħ P; LIS ifisl ^ - I II IIIII I I! I ( £I ÜIHS SSILI L nil"in ¡1 f 1 s ? 2* 1 , 5 ft'© j II » «8 CITY OF NASHUA, NEW HAMPSHIRE WET WEATHER FLOW TREATMENT FACILITY INFLUENT SCREENING UPGRADE WRIGHT-PIERCE ^ " £ a- Ert^in serin* a Hotter Environment i- «himi« moan wm, iiciso, AW **vnvyir>c»«s m>! . .. 653.62 tJ156 | wvi^.vrrijht-pktcr*com 0 iliill I ill issi sii CnV OF NASHUA, NEW HAMPSHIRE WET WEATHER FLOW TREATMENT FACIUTY WRIGHT-PIERCE ^^ INFLUENT SCREENING UPGRADE fcn^liwrinj» a ßeitr-f fnvjmnmtfnt fiU.621.fitS6 [ www.wrigM-piefCe.CDm I 5 È | J S E H SE S ì i if 3 ? li i l i ! 1 . , hMIMi IliI 1 M) \ 4 j'y m1 •i"i!"|i a f "r \ \ Q^sPjCDCDOK / ® * üll* \ \ l \ // Il Si ÌP 5 S 1 S « ' ÌII; ! P©0OS .1- eI &|o inn®8 n-n i "jsf IIP ! I 1 I j -n-n ; // il si lì É I £ I Ì il in I II I I 1 II 1 i I i i| i (O I lì I I « • Ì «o * i1 ih ili 0 ri I ' 5 ? •I ^ 1 1 ili s iSi ja" Sisr Ö $ - [ ' Vi ... :: :::;::: ffi- m iP wih CITY OF NASHUA, NEW HAMPSHIRE eoomt:..^?? WET WEATHER FLOW TREATMENT FACILITY WRIGHT-PIERCE Lm - S INFLUENT SCREENING UPGRADE fn^inerrmi; a Dotier f»vir«nmenl «¿làutCNTAnoMNom, a UMS. UMAUDMÌ. eftnTtA, loow. i Knvxxt« tutwi B38»62t J156 } www.wrighi-pkrc*.coni lis IUP fa INI il II II II ¡III p 1 u p ¡ni i 1 1 P¡M ?ä HlIs o I IHM Ö lD 5 & E» fr J-H-fc^x©® SS SS 'S Ì il st L\ IF ! äS3? SI H * ! i - Il I 1 iI i §i I i n & I : « IL L! I Hi iä ! I ;F SS PIP I 1 1 li il ! 1 5 SEg S 35 « a i ! I 1 II PI ! I f P- I 5 9 ; 1 I r S ? n E II s | c: i HS 2! I l1! ? «fillSPlfsfH! MP IE I« SiS2|S lälpB 1 2S ¡11! & !!! !5 SI Hi IO i it ? m 11 I i\i m m mm I Ml m« ¡¡¡¡¡¡11 ill ¡1 iiii ili ff! I? If* «I 5i?2 ÌPifllì s ili S* P - ü! n i t Sal lis |i I •>3 mm 1 ? II ¡IpP » è "s IF äi iä CITY OF NASHUA, NEW HAMPSHIRE Kg WET WEATHER FLOW TREATMENT FACILITY INFLUENT SCREENING UPGRADE WRIGHT-PIERCE Engineering a Iteti«? r Environ mani iUCmCALUMK«, MOTO, AUarviATIONt. aafi.621.at 56 | WH.wright-pl«fc**cofn 0 tili 1! il! , » ÜEI P >¡1 li i ih gif CITY OF NASHUA, NEW HAMPSHIRE WET WEATHER FLOW TREATMENT FACILITY WRIGHT-PIERCE INFLUENT SCREENING UPGRADE En^rtterifv* a Dotter Environment Bfl0.62t.S1S6 | www.wright*p1efcexoffl ® © B fiO a (3 to \XQ OLJT ISäiiällJ -© E3- -© -© ll -1© a -© m III ©®©©©0®Q©0 i 11111113111ä i Is "nl!s i ü 1 iiiii i" n 1 ill n !i ! 1® CITY OF NASHUA, NEW HAMPSHIRE WET WEATHER FLOW TREATMENT FACILITY INFLUENT SCREENING UPGRADE WRIGHT-PIERCE En-jineertn* flotter Environment VWTWWTWW K«* jt*ne* LiicTfctaa mimxttion RANI 8ftll.62t.81S6 | wrww.vrTighl*pitrce.<3Kn »1« * » « a •1« SI •1 = t ft > im) -1 •1 -I i »• I i$ i I r i1 i 1 e ! I 1 1 j j 1 5 fli J lb * I ! Is s * SI 1« s|s BjS j * ml 1* 1« 1« 1 «1» * »Ii t 3 3 I J i 5 s ! Mfli i i i i s i I 1 s? (• : i * A a « i » ft» 1 * II » * « a » I » t «I* - - •I- 5S S 8 8 3 £ S ! 0 S * 3 £ 3 0 5 3 D cjs £ 3 E E e S 1 . 5 2 5 3 2 2 2 3 s 2 3 % x t. 1 * v i s t s S ?? £ e % 13 3 5 I I 5 S !l 8 s iS 'I fi j ! S JE 1 | j! i s > 1 9 § 1 i si?t5 Is 8 5 5 J R s I \ a |! f I ! | l i i 5 jf 11 B f I I s I I 1 3 |a MMAsvowf/wtwoits CITY OF NASHUA, NEW HAMPSHIRE r-H.m • RAWIN G AfTMJ WET WEATHER FLOW TREATMENT FACILITY IK E- 7 WRIGHT-PIERCE INFLUENT SCREENING UPGRADE En^inecfmg a Belier f rmronmcnt w-i W rioil »Min y I-h it —1 I.ICTXM. DtlUA 1MO KTWJI ® 11«! H M—J