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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 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.

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.

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. Hf 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.

. 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.

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
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.

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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.

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.

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.

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, 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 Professionai
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

GC 8 of 11

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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.

PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS Professional Engineer expressly agrees that
ail 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. The City of Nashua shal] have the right to reproduce any

such materials.

Professional Engineer 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. 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 shal! 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, 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, 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 Director of
Economic Development or other designated official accepts and approves the notice of completion.

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 harmiess the City of Nashua
from any jiability on account of any and all such taxes, levies, duties, assessments, and deductions.

GC 9 of 11

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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.

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 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.

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.

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

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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 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.

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.

TIME IS OF THE ESSENCE Time is expressly made of the essence with respect to this agreement
and the dates prescribed in it.

GC I1 of Ll

Exhibit B

AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN
VANASSE HANGEN BRUSTLIN, INC.
AND
THE CITY OF NASHUA, NEW HAMPSHIRE

DOWNTOWN RIVERFRONT PROJECT
December 30, 2021

The following expands services under the existing agreement between the City of Nashua and
Vanasse Hangen Brustlin, inc. (VHB) for the Nashua Downtown Riverfront Project dated
12/12/2019. This agreement is subject to the terms and conditions of the original contract.

SCOPE OF SERVICES

This agreement includes the following scope of work.

ENVIRONMENTAL ANALYSIS AND PERMITTING

The project will require work below the top of bank of the Nashua River, which would trigger a
Prime Wetland review by the NH Department of Environmental Services (NHDES} Wetlands
Bureau under RSA 482-A. Additionally, any structure or fill below ordinary high water would
require authorization by the US Army Corps of Engineers under Section 404 of the Clean Water
Act. The Corps permit will, in turn, trigger the need to demonstrate compliance with Section 106
of the National Historic Preservation Act. We note that the Nashua River is subject to an urban
exemption from the NHDES Shoreland Program under RSA 483-B. To expedite design and
construction, it is likely that the project would be constructed in two to three phases:

e Project components that can be constructed entirely outside of the jurisdiction of the
NHDES, Army Corps, and NHDHR. These will likely include the Cotton Transfer Bridge
ADA ramp, the redevelopment of Bicentennial Park, redevelopment of the driveway
behind the Clocktower apartment building, portions of the multiuse path along the
south side of the Nashua River from Main Street to Temple Street, and possibly other
smaller components that do not impact the resource area.

¢ Boardwalks, the New Pedestrian Bridge across the Nashua River, and trail improvements
resulting in work below the top of bank requiring temporary and permanent impacts
(such as piers) in the bed and banks of the Nashua River.

e Renaissance Park Redevelopment - The redevelopment of the park will likely include
rehabilitation and/or replacement of existing walls and banks that retain the park along
the Nashua River.

Because the project will be implemented in phases, we understand that the regulatory process
may proceed in phases accordingly. Additionally, VHB understands that the project will require
excavation within areas of urban fill, and that areas of known contamination occur within or
adjacent to the project area. For this reason, VHB will provide an assessment of potential soil

and groundwater management issues as part of this scope.

Task 1. Prime Wetland Boundary Coordination

The existing prime wetlands mapping of the Nashua River is inaccurate in certain areas of the
project limits, extending substantially outside of the banks of the river in certain locations. To
clarify NHDES jurisdiction, and in keeping with NHDES guidance on this issue, VH8 will prepare @
submittal pursuant to Env-Wt 703.05 to clarify the boundary of the prime wetland. VHB will
prepare an overlay map of the official prime wetland boundary together with the field
delineation previously completed by our wetland scientists and will coordinate with the Nashua
Conservation Commission to obtain their concurrence with the revised mapping. This
information will be submitted to the NHDES Wetlands Bureau for review and approval prior to

completing the permit applications.

Task 2. Wetland Mitigation Support

Because the project will impact a prime wetland, NHDES will require compensatory mitigation.
VHB will therefore develop a project mitigation proposal, in consultation with the City, following

the criteria at Env-Wt 801.03. This effort would:

e Document that on-site mitigation is not practical, given the constraints of the existing
infrastructure and property boundaries.

e Evaluate whether the project can incorporate other forms of off-site permittee-
responsible mitigation such as creation, restoration, or preservation, in consultation with
the Nashua Conservation Commission.

e If needed, VHB will produce a high-level conceptual pian for a permittee-responsible
mitigation proposal. This plan would include information sufficient to allow for
preliminary NHDES review, but is not intended to include full mitigation design (e.g., the
documentation required by Env-Wt). This task assumes that NHDES would allow final
design of any such mitigation to occur following permit approval.

e If permittee-responsible mitigation is determined not practical, develop an analysis of in-

lieu fee mitigation.

vhb

As part of this task, VHB will arrange for up to three pre-application meetings with the
Conservation Commission and/or their representative and NHDES pursuant to Env-Wt 311.02.

Task 3. Stream Geomorphic Assessment

Although the project area is in a highly-modified reach of the Nashua River, NHDES has advised
that the proposed new pedestrian bridge will need to comply with Env-Wt 900. Therefore, a VHB
water resources scientist will conduct a geomorphic assessment of Nashua River at the
proposed new pedestrian bridge crossing as required by NH Administrative Rule Env-Wt 904.01
and 904.08. VHB will document field conditions at the proposed crossing and will attempt to
determine bank full width and depth and flood prone width, and will complete the
corresponding NHDES Wetiands Permit Application Stream Crossing Worksheet as needed. VHB
anticipates that an appropriate reference reach may be lacking, and may employ regional
regression equations in making bankfull determinations if needed. VHB understands that
bathymetry will be provided by others. This field work will allow VHB to address the
requirements for stream crossings as outlined in NH Administrative Rule Env-Wt 900 during

permitting of the proposed bridge if required.

Task 4. Rare Species Coordination

VHB will identify state-listed rare species using the NH Natural Heritage Bureau's Online Data
Check Tool and the USFWS IPaC. Our team will consult with the NH Natural Heritage Bureau and
the NH Fish & Game Department Non-Game Program to address recommended avoidance
measures if any rare species are identified. Generally, these avoidance measures can be
negotiated without extensive field surveys. However, if additional field surveys or mitigation
plans are required, VHB’s biologists would be available to conduct field surveys as needed.

Task 5. NHDES Wetlands Permit Application

Because wetland impacts appear to be unavoidable, the project team would develop up to two
wetlands permit applications according to RSA 482-A. Elements of the permit applications will

include:
° Wetlands Permit Application Form
e Project Narrative, including brief Alternatives Analysis
* Attachment to the Wetlands Permit Application addressing review criteria
° USGS Site Location Map
e Evidence of Natural Resource Agency Review
e Representative Site Photographs
e Tax Map, Abutters List, and Abutters Notifications
e Existing Conditions Plan

° Project Permitting Plan Set (i.e, complete 60% design plans set, including grading
plans, cross-sections and details)

° Wetlands Impact Plans

° Mitigation Proposal

. Supplementary Information required for Prime Wetlands applications in Env-Wt
704.03

We assume that each application will be classified as a major impact under Env-Wt 407 and that
a public hearing will be required pursuant to Env-Wt 704.04. An initial client draft of the permit
application will be submitted to the Client for review and comment prior to finalization and
submittal to NHDES. Because the permit application fee cannot be calculated at this time, our

proposed fee does not include this cost.

VHB assumes that the City will be responsible for determining ownership of the bed of the river
and for coordinating with affected property owners to obtain easements, written permission, or

signatures on the application form as appropriate.
Task 6. US Army Corps of Engineers, Clean Water Act, Section 404 Permitting

Based on our experience with similar projects in NH, VHB expects that the Corps will authorize
the project via the Statewide Programmatic General Permit (i.e., the project will not require an
individual permit). We will prepare wetland project plans in the standard US Army Corps of
Engineers format (no larger than 11 X 17 in with bar scale) for the Corps’ records and will
complete the Corps’ “Appendix B" document relative to indirect and cumulative impacts for

submittal to the Corps.
Task 7. Alteration of Terrain Coordination

At this time, it appears that the area of significant ground disturbance associated with the
project will exceed the 50,000 square foot Alteration of Terrain (AoT) permit trigger for projects

located within Protected Shoreland.
Assuming the permit is required, VHB will develop sediment and erosion control plans which will
be submitted with the AoT permit application. (Note: VHB assumes the Stormwater Pollution

Prevention Plan (SWPPP) and Construction General Permit (CGP) Notice of !ntent will be
prepared and submitted by the selected contractor(s).] The plans will rely on site-specific

information. Under this task, VHB will:
° Prepare temporary and permanent stormwater management and erosion control plans in
accordance with NHDES and United States Environmental Protection Agency (USEPA)

regulations,