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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, Independent Contractor shall
receive all amounts due and not previously paid to Independent Contractor for work
satisfactorily completed in accordance with the contract prior to the date of the notice and
compensation for work thereafter completed as specified in the notice. No amount shall be allowed
or paid for anticipated profit on unperformed services or other unperformed work.

B. TERMINATION FOR CAUSE This agreement may be terminated by the City of Nashua on 10
calendar day’s written notice to Independent Contractor in the event of a failure by Independent
Contractor to adhere to any or all the terms and conditions of the contract or for failure to
satisfactorily, in the sole opinion of the City of Nashua, to complete or make sufficient progress
on the work in a timely and professional manner. Independent Contractor shall be given an
opportunity for consultation with the City of Nashua prior to the effective date of the
termination. Independent Contractor may terminate the contract on 10 calendar days written notice
if, through no fault of Independent Contractor, the City of Nashua fails to pay Independent
Contractor 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, Independent Contractor shall:

1. Immediately discontinue work on the date and to the extent specified in thenotice.

2. Provide the City of Nashua with a list of all unperformed services.

3. Place no further orders or sub-contracts for materials, services, or facilities, other than
as may be necessary or required for completion of such portion of work under the
contract that is not terminated.

4. Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the 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, Independent Contractor shall receive all amounts due and
not previously paid to Independent Contractor for work satisfactorily completed in accordance
with the contract prior to the date of the notice, less all previous payments. No amount shall be
allowed or paid for anticipated profit on unperformed services or other unperformed work. Any
such payment may be adjusted to the extent of any additional costs occasioned to the City of
Nashua by reasons of Independent Contractor's failure. Independent Contractor 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 Independent Contractor until such time as the exact
amount of damages due to the City of Nashua is determined. All claims for payment by the
Independent Contractor must be submitted to the City of Nashua within 30 days of the effective
date of the notice of termination.

GC 5 of 13

10.

If after termination for the failure of Independent Contractor 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 Independent Contractor 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 Independent Contractor such that Independent
Contractor receives total compensation in the same amount as it would have received in the
event of a termination-at-will.

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 Independent Contractor shall cease conducting business, the City of
Nashua shall have the right to solicit applications for employment from any employee of the
Independent Contractor 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 Independent Contractor's principals, officers, employees, agents,
subcontractors, consultants, vendors, or suppliers are expressly recognized to be within
Independent Contractor's control.

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 a City of Nashua Representative and the Independent Contractor’s
Representative. At all times, the Independent Contractor_shall carry on the work under this
contract and maintain and complete work in accordance with the requirements of the contract or
determination or direction of the City of Nashua. If the parties are unable to resolve their dispute
as described above within 30 days, if requested in writing by either the City of Nashua or the
Independent Contractor_within 14 days after the 30 days described above , the parties shall attempt
to resolve the dispute by entering into structured non-binding negotiations with the assistance of
a mediator on a without prejudice basis. The mediator shall be appointed by agreement of the
parties, which agreement shall not be unreasonably withheld. If the parties cannot agree to a
mediator within 30 days or the dispute cannot be settled within a period of thirty (30) days with
the mediator, 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.

NO DAMAGES FOR DELAY Apart from a written extension of time, no payment, compensation,

or adjustment of any kind shall be made to Independent Contractor for damages because of
hindrances or delays in the progress of the work from any cause, and Independent Contractor

GC 6 of 13

agrees to accept in full satisfaction of such hindrances and delays any extension of time that the
City of Nashua may provide.

11. INSURANCE Independent Contractor shall carry and maintain in effect during the performance of
services under this contract:

General Liability insurance in the amount of $1,000,000 per occurrence; $2,000,000
aggregate;

$1,000,000 Combined Single Limit Automobile Liability; * c must incl
ll owned, non-own nd hir hicles ;

Workers' Compensation Coverage in compliance with the Stateof New | Hampshire
statutes, $100,000/$500,000/$100,000.

Independent Contractor 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 Independent Contractor are intended to and shall not in any
manner limit or qualify the liabilities and obligations assumed by Independent Contractor
under this contract. The City of Nashua shall not maintain any insurance on behalf of
Independent Contractor. Subcontractors are subject to the same insurance requirements as
Independent Contractor and it shall be the Independent Contractor’s responsibility to ensure
compliance of this requirement.

Independent Contractor will provide the City of Nashua with certificates of insurance for
coverage as listed below and endorsements affecting coverage required by the contract. 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. Emplovers’ Liability and Auto Liability policies must name the City of Nashua
as_an additional insured and reflect on the certificate of insurance. Independent Contractor 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) &
insurance.

If aggregate limits of less than $2,000,000 are imposed on bodily injury ad
property damage, Independent 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 Independent Contractor of 6
responsibilities or limit the amount of its liability to the City of Nashua or other

persons, and Independent Contractor is encouraged to purchase such additional

insurance, as it deems necessary.

GC 7 of 13

12.

13.

14.

15.

The insurance provided herein is primary, and no insurance held or owned by the City &
Nashua shall be called upon to contribute to a loss.
Independent Contractor is responsible for and required to remedy all damage or loss b
any property, including property of the City of Nashua, caused in whole or part by
Independent Contractor or anyone employed, directed, or supervised by Independent
Contractor.

INDEMNIFICATION Regardless of any coverage provided by any insurance, Independent
Contractor 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 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 Independent Contractor or
of anyone acting under its direction or control or on its behalf in connection with or incidental to
the performance of this contract. Independent Contractor’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.

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 Independent Contractor 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 Independent Contractor 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 Independent Contractor. Independent Contractor shall have no claim of any
sort to the unexpended funds.

COMPENSATION Review by the City of Nashua of Independent Contractor's submitted invoice
forms for payment will be promptly accomplished by the City of Nashua. If there is insufficient
information, the City of Nashua may require Independent Contractor to submit additional
information. Unless the City of Nashua, in its sole discretion, decides otherwise, the City of
Nashua shall pay Independent Contractor in full within 30 days of approval of the submitted
invoice forms.

COMPLIANCE WITH APPLICABLE LAWS Independent Contractor, 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. Independent
Contractor shall, throughout the period services are to be performed under this contract, monitor

GC 8 of 13

16.

17.

18.

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.

NONDISCRIMINATION If applicable or required under any federal or state law, statute, regulation,
order, or other requirement, Independent Contractor agrees to the following terms. Independent
Contractor 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. Independent Contractor 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, Independent Contractor'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.

Independent Contractor 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 Independent Contractor under this contract.

In connection with the performance of work under this contract, Independent Contractor 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.

Independent Contractor 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 Independent Contractor shall constitute a material breach of the contract.

ENDORSEMENT Independent Contractor shall seal and/or stamp and sign _ professional
documents including drawings, plans, maps, reports, specifications, and other instruments of
service prepared by Independent Contractor or under its direction as required under the laws of the
State of New Hampshire.

ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING Independent Contractor 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.

GC 9 of 13

19.

20.

21.

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 theparties.

CITY INSPECTION OF CONTRACT MATERIALS The books, records, documents and accounting
procedures and practices of Independent Contractor 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-Beard-ef Public _Works, Corporation Counsel, and, if applicable, the

Comptroller General of the United States, or any authorized representative of those entities.

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 Independent
Contractor 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
Independent Contractor's expense, by Independent Contractor to the City of Nashua upon
completion, termination, or cancellation of this contract. Alternatively, if the City of Nashua
provides its written approval to Independent Contractor, 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 Independent Contractor in the performance of its obligations under this contract must
be retained by Independent Contractor 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 Independent Contractor shall
promptly remit and deliver the materials, at Independent Contractor's expense, to the City of
Nashua. Independent Contractor shall not use, willingly allow or cause to have such materials used
for any purpose other than the performance of Independent Contractor's obligations under this
contract without the prior written consent of the City of Nashua.

PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS Independent Contractor expressly agrees
that all documents ever submitted, filed, or deposited with the City of Nashua by Independent
Contractor (including those remitted to the City of Nashua by Independent Contractor 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 Independent Contractor 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 Independent Contractor. The City of Nashua shall have the night to reproduce
any such materials.

GC 10 of 13

22.

23.

24.

Independent Contractor 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 of Nashua 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. Independent Contractor
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 Independent Contractor infringes any copyright or that any equipment,
material, or process (or any part thereof) specified by Independent Contractor infringes any patent.

Independent Contractor 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.

FINAL ACCEPTANCE Upon completion of all work under the contract, Independent Contractor
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 Independent Contractor in writing that the whole of the work was
completed on the date indicated in the notice or provide Independent Contractor with a written
list of work not completed. With respect to work listed by the City of Nashua as incomplete,
Independent Contractor 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 Puble-WerksLibrary Trustees or other designated official accepts
and approves the notice of completion.

TAXES Independent Contractor 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. Independent Contractor 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.

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.

GC 11 of 13

25.

26.

27.

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.

PROHIBITED INTERESTS Independent Contractor 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. Independent Contractor 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 Independent Contractor. If any such interest comes to the attention
of Independent Contractor at any time, a full and complete disclosure of the interest shall be
immediately made in writing to the City of Nashua. Independent Contractor also warrants that it
presently has no interest and that it will not acquire any interest, direct or indirect, which would
conflict in any manner or degree with the performance of services required to be performed
under this contract. Independent Contractor 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 Independent Contractor (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, Independent Contractor shall refund to the City of Nashua any profits realized
under this contract, and Independent Contractor 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.

Independent Contractor warrants that no gratuities (including, but not limited to, entertainment or
gifts) were offered or given by Independent Contractor 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.

THIRD PARTY INTERESTS AND LIABILITIES The City of Nashua and Independent Contractor,
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 Independent Contractor.

GC 12 of 13

28.

29.

30.

31.

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.

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.

MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT This contract constitutes the entire
contract between the City of Nashua and Independent Contractor. 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.

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 13 of 13

City of Nashua

Purchasing Department
Administrative Services Division (603) 589-3330
229 Main Street - Nashua, NH 03060 Fax (603) 594-3233

June 28, 2022
Memo #23-295

TO: Mayor Donchess
Finance Committee

SUBJECT: Central Irrigation System in the amount not to exceed $85,850 funded from 81100
Capital Improvements

Please see attached communications from Bryan Conant, Superintendent of Parks & Recreation, dated June
16, 2022 for project specific details related to this purchase. Below please find a summary of the purchase
approval request:

Item: Central Irrigation System to include Installation
Value: not to exceed $85,850
Vendor: Corbett Incorporated

Department: 177 Parks & Recreation
Source Fund: 81100 Capital Improvements

Ordinance: Pursuant to § 5-84 Special purchase procedures. A/(5) Purchases from a sole
manufacturer, where it is determined to be more efficient and economical to
reduce costs of maintenance of additional repair parts, supplies or services.

The Board of Public Works (6/16/2022 BPW meeting), Division of Public Works: Parks & Recreation, and
the Purchasing Department respectfully request your approval of this contract.

Regards,
Kelly Parkinson

Purchasing Manager

Ce: B Conant
C O'Connor