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THE CITY OF NASHUA “The Gate City’

Economic Development

To: L. Wilshire, President
From: T. Cummings, Director
Ce: Members of the Board of Aldermen

Date: July 8, 2020
Re: Communication ~ Approval & Place on File - A Contract for NAI Norwood to assist as

necessary on a case by case basis with the advisory and procurement/disposition of commercial real
estate

The City has various commercial real estate needs from on-call advisory services to disposition
or even the procurement of commercial real estate. The contract before you retains a local
commercial brokerage firm to assist the City as necessary as a retained commercial broker.

For your review and consideration is a copy of the Professional Services Contract related to the
services as anticipated with Exhibits outlining the scope and basis for fees, is attached. The
contract is the City’s standard Professional Services contract.

In 2019 the city released an RFP seeking proposals for the aforementioned services. Three
responses were submitted to the City and a small review team consisting of the City’s
Corporation Counsel, Administrative Services Director and the Director of Economic
Development Director met and interviewed two of the three groups. At the conclusion of the
process it was decided NAI Norwood would be the best group to provide advisory and brokerage
services. Coincidently, they were the only local group to submit and the lowest proposed fee.

The contract is before the Board of Aldermen because it is envisioned to be multi-year. I am
requesting the approval of the Board of Aldermen for the award of the attached contract.

smn

CONTRACT FOR PROFESSIONAL SERVICES

REP 0019-060419

PROFESSIONAL CONSULTING SERVICES FOR
REAL ESTATE BROKERAGE & MARKETING SERVICES

A CONTRACT BETWEEN
THE CITY OF NASHUA, 229 MAIN STREET, NASHUA, NH 03061-2619

AND

NAI Norwood GROUP
NAME AND TITLE OF SERVICE PROVIDER

HITH A PRINCIPAL ADDRESS AT

116 SOUTH RIVER Roap 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;

WHEREAS, it is deemed that the services of the Service Provider herein specified are
necessary, desirable and in the best interests of the City of Nashua; and

WHEREAS, Service Provider represents it is 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 (together, the “Contract” or “contract’”):

Exhibit A-- General Conditions for Contracts
Exhibit B—Summary & Scope of Work

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

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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 work described and attached hereto as Exhibit B, Summary & Scope of Work.

3, PERIOD OF PERFORMANCE. Service Provider shall perform and complete all work within one
(1) year of the effective date of the Contract and can be extended for up to two (2) one-year
(i-year) periods upon written agreement of both parties. The time periods set forth may only
be altered by the parties by a written agreement 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 in Exhibit B, Summary &
Scope of Work for the compensation provided in Exhibit B.

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, if applicable.

If applicable, 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 in accordance with this
Agreement. The City will pay Service Provider all undisputed portions of Service Provider's
invoices within 30 days of receipt by the City of the submitted invoice forms and progress
reports, unless otherwise collected at settlement as outlined in Exhibit B. The City will make no
payments until the invoice forms and progress reports have been submitted and approved. If the
City disagrees with any portion of an invoice, it shall notify Service Provider in writing of the
amount in dispute and the specific reason for the objection within 10 days of the receipt of
invoice. The City shall pay the undisputed portion of the invoice as specified above.

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5. EFFECTIVE DATE OF Contract. The Contract shall become effective upon approval by the
City of Nashua Board of Aldermen.

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:

CITY REPRESENTATIVE: REPRESENTATIVE:
Tim Cummings, Director Chris Norwood, President
Economic Development Division NAI Norwood Group
Office of the Mayor — City Hall

229 Main Street 116 South River Road
Nashua, NH 03060 Bedford, NH 03110

City of Nashua may add additional POCs
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.
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City of Nashua, NH (signature) Service Provider (signature)
' ; . L
James W. Donchess, Mayor Chas Me howe rei. ?
(Prinied Name and Title) (Printed Name and Title)
4/ 6/ze
Date Date

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Exyipit A TABLE OF
CONTENTS GENERAL
CONDITIONS
DEFINITIONS

SERVICE PROVIDER STATUS AND PROVISION OF WORKERS’
COMPENSATION COVERAGE

STANDARD OF CARE

Ciry REPRESENTATIVE
CHANGES TO SCOPE OF WORK
CITY COOPERATION

DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR
DISCREPANCIES

‘TERMENATION OF CONTRACT

DISPUTE RESOLUTION

No DAMAGES FOR DELAY

INSURANCE

INDEMNIFICATION

FISCAL CONTINGENCY

COMPENSATION

COMPLIANCE WITH APPLICABLE LAWS
NONDISCREMINATION

FEDERAL SUBCONTRACTING REQUIREMENTS
ENDORSEMENT

ASSIGNMENTS, TRANSFER, DELEGATION, OR SUBCONTRACTING
CITY INSPECTION OF CONTRACT MATERIALS
DISPOSITION OF CONTRACT MATERIALS

PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS
FINAL ACCEPTANCE

TAXES

NoON-WAIVER OF TERMS AND CONDITIONS

RIGHTS AND REMEDIES

PROHIBITED INTERESTS

THIRD PARTY INTERESTS AND LIABILITIES

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SURVIVAL OF RIGHTS AND OBLIGATIONS
SEVERABILITY
MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT

CHOICE OF LAW AND VENUE

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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 shali perform all work under this contract as a Service Provider, maintaining control over
all its consultants, sub consulfants, 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 surance 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 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 maintamed 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. Service Provider’s work shall be performed with the degree of professional skill, care,
diligence, and sound practices and judgment ihat 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 loca! 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
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

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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, CrTY 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
City, in its sole discretion, determines that time is critical or public health and safety are of
concer. Any verbal approval shall be confirmed in writing no later than the next business day.
Any change undertaken without prior City approval shall not be compensated and is, at the City's
election, sufficient reason for contract termination.

6. Ciry 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 City board or committee

action ina 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.
The City shall furnish to Service Provider all information and technical data in the City’s
possession or contra] reasonably required for the proper performance of the services. Service
Provider shall be entitled to reasonably rely without independent verification upon the
information and data provided by the city or obiained from generally accepted sources within the
industry, except to the extent such verification by Service Provider is expressly required as a
defined part of the Services.

Service Provider will endeayor in good faith, as needed, to obtain from the appropriate
authorities their interpretation of applicable codes and standards and will apply its professional
judgment in interpreting the codes and standards as they apply to the Project at the time of
performance of the Services. Notwithstanding the above, the Parties agree that, as the Project
progresses, such codes or standards may change or the applicability of such codes or standards
may vary from Service Providers original interpretation through no fault of Service Provider and
that additional costs necessary to conform to such changes or interpretation during or after
execution of the Services will be subjected to an equitable adjustment in the Compensation and
Project Schedule.

All future questions Service Provider may have concerning interpretation or clarification of this
contract shall be submitted in within 10 calendar days of their arising. The contract shall state
clearly and in full detail the basis for Service Provider’s question or portion. The City
representative shall render a decision with 15 calendar days. The City’s decision on the matter is
final. At all times, Service Provider shall carry on the work under this contract and maintain
and complete work in accordance with the requirement of the contract or determination of the
City. Service Provider is responsible, pursuant to the standard of care, for requesting clarification
or interpretation in the event it discovers a conflict, error or omission or discrepancy in the
contract documents, and is liable for its direct costs or expense to the extent caused by its failure
to do so.

Service Provider shail be responsible for its performance and that of Service Provider's lower-
tier subcontractors and vendors,

8, TERMINATION OF CONTRACT

A. TERMINATION, ABANDONMENT, OR SUSPENSION AT WILL. The City, in its sole
discretion, shail have the right fo terminate, abandon, or suspend al! or part of the project and
contract at will. Ifthe City chooses to terminate, abandon, or suspend all or part of the project, it
shall provide Service Provider 10 day’s written notice of its intent to do so.

[f 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:

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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
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 atter 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, ihe termination 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.

Cc. 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.