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#) THE CITY OF NASHUA The Cate City"

Financial Services

Purchasing Department

April 11, 2019
Memo #19-141

TO: MAYOR DONCHESS
FINANCE COMMITTEE

SUBJECT: CONTRACT FOR INDEPENDENT CONSULTANT SERVICES (VALUE: $22,000)
DEPARTMENT: 183 ECONOMIC DEVELOPMENT; FUND: TAX INCREMENT FINANCING DISTRICT

Please see attached communication from Tim Cummings, Director of Economic Development dated April
10, 2019 for the information related to this purchase.

§ 5-83. Professional services. 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. Competitive bidding is required in the procurement of insurance
agents and consultants.

The Director of Economic Development and the Purchasing Department recommend approval of this
contract in an amount of $22,000 to Meena Gyawali of Manchester, NH.

ee ‘
afi,
“Dan Kooken
Purchasing Manager

Ce: TCummings J Graziano

229 Main Street « Nashua, New Hampshire 03061 « Phone (603) 589-3330 « Fax (603) 589-3233 |

5, EFFECTIVE DATE OF CONTRACT. This contract shall not become effective until and unless approved
by the City of Nashua.

6. NOTICES. Ail 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 OF NASHUA REPRESENTATIVE: REPRESENTATIVE:

Tim Cummings John Lavigne, Jr., PE, CFM
Director of Economic Development The H.L. Turner Group, Inc.
City of Nashua 27 Locke Road

Concord, NH 02111-2200

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 of Nashua or Professional Engineer 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) The HL. Turner Group (signature)

Tim Cummings, Dir. Econ. Dev. John Lavigne, Jr.. Lead Civil Engineer
(Printed Name and Title} (Printed Name and Title)

Date Date

AG 3of3

THE CITY OF NASHUA “the Gate City’

Economic Development

To: James Donchess, Mayor
From: T. Cummings, Economic Development Director
Ce:

Date: April 10, 2019

Re: Request for Approval of Contract with Meena Gyawali

Using funding aside as for the implementation of the Riverfront TIF before you is a contract for
the services of Meena Gyawali an experienced economic development professional who will help
implement the TIF plan on a temporary basis.

The contract before you outlines a six-month duration, but in all actuality may be less. The scope
of work is to focus our collective energies and efforts on issuing an RFQ and awarding a contract
for design services to a multi- disciplinary firm that will design and implement key projects
outlined in the Downtown Riverfront Master plan - including a Riverwalk project. There may be
other ancillary related projects such as assisting the procurement of landscaping services, invasive
species removal and other projects that will help advance the implementation of the TIF plan.

1 am recommending approval of this $22,000 contract.

CONTRACT FOR INDEPENDENT CONTRACTOR

TITLE

A CONTRACT BETWEEN
THE CITY OF NASHUA, 229 MAIN STREET, CITY HALL, NASHUA, NH 03060
AND
and its successors, transferees and assignees (together “Independent Contractor”)

MEENAKSHI GYAWALIi
Consultant

NAME AND TITLE OF INDEPENDENT CONTRACTOR

149 LODGE STREET, MANCHESTER, NH 03014

ADDRESS OF INDEPENDENT CONTRACTOR

WHEREAS, the City of Nashua, a political subdivision of the State of New Hampshire, from time
to time requires the services of an Independent Contractor ; and

WHEREAS, it is deemed that the services of an Independent Contractor herein specified are both
necessary and desirable and in the best interests of the City of Nashua; and

WHEREAS, Independent Contractor 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 Services, Contract Time, Fee Schedule

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.

In the event of a conflict between the terms of the Proposal and the terms of this Agreement, a written
change order and/or fully executed City of Nashua Purchase Order, the terms of this Agreement, the written
change order or the fully executed City of Nashua Purchase Order shall control over the terms of the
Proposal.

AG 1 of 3

2. WORK TO BE PERFORMED Except as otherwise provided in this contract, Independent Contractor 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.

3. PERIOD OF PERFORMANCE. Independent Contractor shall perform and complete all work within the time
periods set forth and 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. Independent Contractor shall
begin performance upon receipt of an Executed Contract and a valid Purchase Order issued from the City
of Nashua.

4. COMPENSATION. Independent Contractor agrees to perform the work for a total cost not to exceed
Dollars ($ $22,000 __)

which, unless otherwise provided in this contract, shall be paid in accordance with the provisions of
Exhibit B or unless Independent Contractor has received a written exemption from the City of Nashua.
Independent Contractor shall submit monthly requests for payment for services performed under this
agreement directly to

City of Nashua, City Hall
Attn: Accounts Payable
229 Main Street

Nashua, NH 03060

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, Independent Contractor 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 of Nashua will pay for work satisfactorily completed by Independent Contractor. The City of
Nashua will pay Independent Contractor within 30 days of approval by the City of Nashua of the submitted
invoice forms and progress reports. The City of Nashua 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:

AG2 of 3

CITY OF NASHUA REPRESENTATIVE: REPRESENTATIVE:

Economic Development Division Tim Cummings
229 Main Street Director of Economic Development

Nashua, NH 03060

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 of Nashua or Independent Contractor 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) (signature)

Tim Cummings, Director of Economic Development _ Meenakshi (“Meena”) Gyawali, Consultant
(Printed Name and Title) (Printed Name and Title)

Date Date

AG 3 of3

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EXHIBIT A
TABLE OF CONTENTS
GENERAL CONDITIONS

DEFINITIONS

INDEPENDENT CONTRACTOR STATUS
STANDARD OF CARE

Crry OF NASHUA REPRESENTATIVE
CHANGES TO SCOPE OF WORK

CITY OF NASHUA COOPERATION

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

TERMINATION OF CONTRACT

DISPUTE RESOLUTION

NO DAMAGES FOR DELAY

INSURANCE

INDEMNIFICATION

FISCAL CONTINGENCY

COMPENSATION

COMPLIANCE WITH APPLICABLE LAWS
NONDISCRIMINATION

ENDORSEMENT

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

PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS
FINAL ACCEPTANCE

TAXES

NON-WAIVER OF TERMS AND CONDITIONS

RIGHTS AND REMEDIES

PROHIBITED INTERESTS

THIRD PARTY INTERESTS AND LIABILITIES
SURVIVAL OF RIGHTS AND OBLIGATIONS
SEVERABILITY

MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT

CHOICE OF LAW AND VENUE

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1.

General Terms and Conditions

DEFINITIONS Unless otherwise required by the context, "Independent Contractor”, and its
successors, transferees and assignees (together “Independent Contractor”) includes any of the
Independent Contractor's consultants, sub consultants, contractors, and subcontractors

INDEPENDENT CONTRACTOR STATUS The parties agree that Independent 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 City of Nashua and
Independent Contractor, and nothing in this contract shall create any contractual relationship
between the City of Nashua and Independent Contractor's consultants, sub consultants, contractors,
or subcontractors. The parties also agree that Independent Contractor 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 Independent Contractor 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.

STANDARD OF CARE Independent Contractor shall be responsible for the professional quality,
technical accuracy, timely completion, and coordination of all work performed under this contract.
Independent Contractor 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 Independent
Contractor 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, Independent
Contractor 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 Independent Contractor'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
Independent Contractor shall not in any way relieve Independent Contractor 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 Independent Contractor'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
Independent Contractor shall be and remain liable in accordance with the terms of the contract and
applicable law.

Independent Contractor 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
Independent Contractor to perform work under this contract. Approved key personnel shall not be
taken off of the project by Independent Contractor without the prior written approval of the City of
Nashua, except in the event of termination of employment. Independent Contractor 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
Independent Contractor, 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 Independent Contractor's
performance under the contract. Independent Contractor 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 Independent Contractor should proceed with any or all of the proposed
change. If the change causes an increase or a decrease in Independent Contractor'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 Independent Contractor for adjustment
under this clause shall be asserted in writing within 30 days of the date the City of Nashua notified
Independent Contractor of the change.

When Independent Contractor seeks changes, Independent Contractor 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 Independent Contractor should proceed with any or all of the proposed change.

Except as provided in this paragraph, Independent Contractor 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. Ciry OF NASHUA COOPERATION The City of Nashua agrees that its personnel will cooperate
with Independent Contractor in the performance of its work under this contract and that such
personnel will be available to Independent Contractor 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 Independent Contractor 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 Independent
Contractor also agree to attend all meetings called by the City of Nashua or Independent Contractor
to discuss the work under the Contract, and that Independent Contractor 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
Independent Contractor 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 Independent
Contractor. All future questions Independent Contractor 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 Independent
Contractor's question or position. The City of Nashua representative shall render a decision within
15 calendar days. The City of Nashua's decision on the matter is final. Any work affected by a

GC 3 of 11

conflict, error, omission, or discrepancy which has been performed by Independent Contractor prior
to having received the City of Nashua's resolution shall be at Independent Contractor's risk and
expense. At all times, 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
of the City of Nashua. Independent Contractor is responsible for requesting clarification or
interpretation and is solely liable for any cost or expense arising from its failure to do so.

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. Ifthe City of Nashua chooses to terminate, abandon, or suspend all or part of the
project, it shall provide Independent Contractor 10 day’s written notice of its intent to do so.

If all or part of the project is suspended for more than 90 days, the suspension shall be treated as a
termination at will of all or part of the project and contract.

Upon receipt of notice of termination, abandonment, or suspension at will, Independent Contractor
shall:

—

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

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