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10. Indemnification. To the fullest extent permitted by law, Seller shall
indemnify, protect, defend, and hold harmless City, its officers, officials, agents,
employees and volunteers from and against any and all claims, damages, demands,
liability, costs, losses and expenses, including without limitation, court costs and
reasonable attorneys' and expert witness fees resulting from, or related to, this Contract,
and/or arising out of any failure to comply with applicable law, any injury to or death of
any person(s), damage to property, loss of use of property, economic loss or otherwise
arising out of the performance of the work described herein, except where such loss or
damage was caused by the sole negligence, or willful misconduct of the City. The
provisions of this section shall survive the completion, termination or suspension of this
Contract.

City shall promptly notify Seller of any claim and reasonably cooperate, assist and
provide appropriate information (at Sellers's expense) for the defense of the action. Seller
shall pay all damages and costs awarded therein against City but shall not be responsible
for any compromise made without Seller's consent, which consent shall not be
unreasonably withheld.

11. Warranties. In addition to any warranties provided for under the Contract
Documents, Seller warrants that the Low Floor Cutaway Vans , including any component
or replacement parts, furnished, manufactured or provided by Seller will be free from
defects in material and workmanship for a period of one hundred and eighty (180) days
from date of acceptance of the Low Floor Cutaway Vans by City. Any additional
warranties provided by law, including, but not limited to, the warranty of merchantability
and warranty of fitness for a particular purpose shall remain in full force and effect and
inure to the benefit of City. City reserves all rights and remedies provided by law for
breach of any applicable warranty related to the Low Floor Cutaway Vans.12.

Insurance. Seller shall provide insurance coverage pursuant to Exhibit B attached hereto,
and provide proof of insurance to City's satisfaction.

13. Remedies. In the event of a material breach of the Contract Documents by
Seller, City may avail itself of any other right and remedies available at law or in equity.
Nothing herein shall limit City's rights to seek any available remedy including, but not
limited to, damages and/or equitable relief, in a court of competent jurisdiction.

Notwithstanding any provisions of this Contract, Seller shall not be relieved of
liability to City for damages sustained by City by virtue of any breach of this Contract by
Seller, and City may withhold any payments due to Seller until such time as the exact
amount of damages, if any, due City from Seller is determined. In the event of termination,
Seller shall be compensated as provided for in this Contract.

14. Compliance with Laws & Federal Changes. Seller shail comply with all
applicable laws, ordinances, codes, rules, regulations, programs, plans, and orders in the
performance of the Contract Documents. Without limiting the foregoing, Seller shall
comply with all applicable FTA regulations, policies, procedures and directives, including
without limitation those listed directly or by reference in the Master Agreement between
the City and FTA, as they may be amended or promulgated from time to time during the

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term of the contract. Seller's failure to comply shall constitute a material breach of the
contract.

15. Notice of Material Change in Business. Seller agrees that, if it experiences a
material change in its business during the term of this Contract, including, without
limitation, a reorganization, restructuring, leveraged buyout, and/or bankruptcy, Seller will
mmediately notify City of the change in writing.

16. Notices. All notices, requests, demands, and other communications
required to or permitted to be given under the Contract Documents shall be in writing and
shall be conclusively deemed to have been duly given (a) when hand delivered to the other
party; (b) when received if sent by telex or facsimile at the address and number set forth
below; (c) three (3) business days after the same have been deposited in a United States
Post Office with certified mail, return receipt requested, postage prepaid and addressed to
the parties as set forth below; or (d) the next business day after same have been deposited
with a national overnight delivery service reasonably approved by the parties (Federal
Express and UPS being deemed approved by the parties), postage prepaid, addressed to the
parties as set forth below with next-business-day delivery guaranteed:

TO SELLER: Name: New England Wheels INC.
Attn: Paul LaRose
Address: 33 Manning Road
City: Bulerica, MA 01821

Telephone: 978-663-9724

TO CITY: Name: Nashua Transit System
Attn: Camille Pattison
Address: 11 Riverside Street
City: Nashua, NH 03062

Telephone: 603-821-2035

A party may change or supplement the addresses given above, or designate
additional addresses, for purposes of this section by giving the other parties written notice
of the new address in the manner set forth above.

17. Entire Agreement. The Contract Documents, including all attachments
thereto, contain the entire agreement between City and Seller in connection with the
transaction contemplated hereby and the subject matter hereof and the Contract Documents
supersede and replace any and all prior and contemporaneous agreements, understandings,
and communications between the parties, whether oral or written, with regard to the subject
matter hereof or any course of dealing, course of performance, or usage of the trade. Parol
evidence shall be inadmissible to show agreement by and between City or Seller to any
term or condition contrary to or in addition to the terms and conditions contained in the
Contract Documents. Both parties acknowledge that each has not relied on any promise,
representation or warranty, express or implied, not contained in the Contract Documents.

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18. Modification. The Contract Documents shall not be modified in any
manner except by a writing signed by both City and Seller provided that the City at any
time by written order and without notice may make changes within the general scope of this
Contract. If any such changes cause an increase or decrease in the cost of or the time
required for performance hereunder, an equitable adjustment shall be made by written
modification to the Contract. Any claim by the Seller for adjustment under this clause
noust be asserted within thirty (30) days from the date of receipt by the Seller of the
notification of change.

19. Assignment. Seller shall not delegate or subcontract any duties or assign
any rights or claims under the Contract Documents without City's prior written consent.

20. Severability. If any term or provision of the Contract Documents shall, to
any extent, be held invalid or unenforceable, the remainder of the Contract Documents
shall not be affected.

21, Waivers. A waiver or breach of a covenant or provision in the Contract
Documents shall not be deemed a waiver of any other covenant or provision in the
Contract Documents and no waiver shall be valid unless in writing and executed by the
waiving party. An extension of time for performance of any obligation or act shall not be
deemed an extension of the time for performance of any other obligation or act.

22. Construction. The section headings and captions of this Contract are, and
the arrangement of this instrument is, for the sole convenience of the parties to this
Contract. The section headings, captions, and arrangement of this instrument do not in any
way affect, limit, amplify, or modify the terms and provisions of this Contract. The
singular form shall include plural, and vice versa. Unless otherwise indicated, all
references to sections are to this Contract. All exhibits referred to in this Contract are
attached hereto and incorporated herein by this reference.

23. Drafting. City and Seller acknowledge and agree that the Contract
Documents have been negotiated at arm's length, that each party has been represented by
independent counsel and/or has had an opportunity to consult with and be represented by
independent counsel, that the Contract Documents are deemed to be drafted by both
parties, that no one party shall be construed as the drafter of the Contract Documents, and
that any rule of construction that ambiguities are to be construed against the drafter shall
not apply in the interpretation or construction of the Contract Documents.

24. Counterparts. This Contract may be executed in one or more counterparts.
Each shall be deemed an original and all, taken together, shall constitute one and the same
instrument.

25. Time of the Essence. Seller and City hereby acknowledge and agree that
time is strictly of the essence with respect to each and every term, condition, obligation,
and provision hereof, particularly, and without limitation of factors contributing to the need
for timely compliance of the Contract Documents.

26. Successors. This Contract shall inure to the benefit of and shall be
binding upon the parties to this Contract and their respective heirs, successors in interest,
and assigns. This Contract may only be assigned upon written approval and agreement of
the parties, which approval will not be unreasonably withheld. Any purported assignment
of this Contract without the prior written approval of all parties shall be null and void.

27. Governing Law. The parties acknowledge that the Contract Documents
have been negotiated and entered into in the State of New Hampshire, Hillsborough
County. The parties agree that the Contract Documents shall be governed by, interpreted.
under, and construed and enforced in accordance with the laws of the State of New
Hampshire. Venue for any action or proceeding relating to or arising out of the Contract
Documents shall be in the State of New Hampshire Superior Court Hillsborough County
South.

28. No Third Party Beneficiary Rights. This Contract is entered into for the
sole benefit of City and Seller. No other parties are intended to be direct or incidental
beneficiaries of this Contract and no third party shall have any right in, under or to this
Contract.

29. No Joint Venture or Other Relationship Created. The relationship
between City and Seller is that solely of a seller and a buyer and no joint venture,
partnership or other relationship is created or implied by the Contract Documents.

30. Fiscal Contingency. All payments under this Contract are contingent upon
the availability to the City of the necessary funds. This contract shall terminate and the
City’s obligations under it shall be extinguished at the end of any fiscal year in which the
City fails to appropriate monies for the ensuing fiscal year sufficient for the performance of
this contract.

Nothing in this Contract shall be construed to provide Seller with a right of payment over
any other entity. Any funds obligated by the City under this Contract that are not paid to
Seller shall automatically revert to the City’s discretionary control upon the completion,
termination, or cancellation of the Contract. The City shall not have any obligation to re-
award or to provide, in any manner, the unexpended funds to Seller, except for those
payments which are owed to the Seller due to amounts incurred by the Seller up to and
including the date it is determined by the City that the necessary funds are not available
(the “Lack of Funding Date”). Operator shall have no claim of any sort to the unexpended
funds following the Lack of Funding Date.

31. 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. Unless otherwise directed by the
City, at all times Seller shall continue performance under the Contract Documents while

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matters in dispute are being resolved. If the parties are unable to resolve their dispute as
described above within 30 days, 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.

Should either party to the Contract suffer injury or damage to person or property because of
any act or omission of the party or of any of its employees, agents or others for whose acts it
is legally liable, a claim for damages therefore shall be made in writing to such other party
as soon as practicable after the first observance of such injury or damage.

Duties and obligations imposed by the Contract Documents and the rights and remedies
available thereunder shall be in addition to and not a limitation of any duties, obligations,
rights and remedies otherwise imposed or available by law.

32. Correction of Work. The Seller shall promptly correct work rejected by the
City as failing to conform to the requirements of the Contract Documents. The Seller shall
bear the cost of correcting such rejected work. In addition to the Seller’s other obligations
including warranties under the Contract, the Seller shall, for a period of one year after final
acceptance, correct work not conforming to the requirements of the Contract Documents.
If the Seller fails to correct nonconforming work within a reasonable time, the City may
correct it and the Seller shall reimburse the City for the cost of the correction.

33, Ownership of Documents. The City and FTA will become owners of all
documents prepared by the Seller upon payment for same by City, except any documents
which may be protected by patent, lease or other written documents which provides proof of
ownership.

34. No Federal Government Obligation to Third Parties.

(a) The City and the Seller acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be subject to any
obligations or liabilities to the C, the Seller, or any other party (whether or not a party to
that contract) pertaining to any matter resulting from the underlying contract.

(b) The Seller agrees to include the above clause in each subcontract financed in whole
or in part with Federal assistance provided by FTA. It is further agreed that the clause shall
not be modified, except to identify the subcontractor who will be subject to its provisions.
incorporate FTA Terms

35. Program Fraud and False or Fraudulent Statements or Related Acts.

(a) The Seller acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C.§ 3801 et seq. and U.S. DOT regulations, "Program

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Fraud Civil Remedies,” 49 C.F.R. Part 31, apply to its actions pertaining to this Project.
Upon execution of the underlying contract, the Seller certifies or affirms the truthfulness
and accuracy of any statement it has made, it makes, it may make, or causes to be made,
pertaining to the underlying contract or the FTA assisted project for which this contract
work is being performed. In addition to other penalties that may be applicable, the Seller
further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent
claim, statement, submission, or certification, the Federal Government reserves the right to
impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Seller to the
extent the Federal Government deems appropriate.

(b) The Seller also acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in part
with Federal assistance originally awarded by FTA under the authority of 49 U.S.C.§ 5307,
the Government reserves the right to impose the penalties of 18 U.S.C.§ 1001 and 49
U.S.C.§ 5307(n)(1) on the Seller, to the extent the Federal Government deems appropriate.

(c) The Seller agrees to include the above two clauses in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the
clauses shall not be modified, except to identify the subcontractor who will be subject to
the provisions.

36. Records.

(a) Retention. The Seller will retain, and will require its subcontractors of all tiers
to retain, complete and readily accessible records related in whole or in part to the
contract, including, but not limited to, data, documents, reports, statistics, sub-
agreements, leases, subcontracts, arrangements, other third party agreements of any type,
and supporting materials related to those records.

(b) Retention Period. The Seller agrees to comply with the record retention
requirements in accordance with 2 C.F.R. § 200.333. The Seller shall maintain all
books, records, accounts and reports required under this contract for a period of at not
less than three (3) years after the date of termination or expiration of this contract,
except in the event of a dispute, or litigation or settlement of claims arising from
the performance of this contract, in which case records shall be maintained until the
disposition of all such dispute, litigation, appeals, claims or exceptions related
thereto.

(c) Where the City is not a State but a local government and is the FTA Recipient or a
subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(4), the Seller agrees
to provide the City, the FTA Administrator, the Comptroller General of the United States
or any of their authorized representatives sufficient access to any books, documents, papers
and records of the Seller which relate to this contract for the purposes of inspection,
making audits, examinations, excerpts and transcriptions as reasonably may be required.
Seller also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his
or her authorized representatives including any PMO Seller access to Seller’s records and
construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1,
which is receiving federal financial assistance through the programs described at 49 U.S.C.
5307, 5309 or 5311.

The Seller agrees to permit any of the foregoing parties to reproduce by any means
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whatsoever or to copy excerpts and transcriptions as reasonably needed.

(d) Access to the Sites of Performance. The Seller agrees to permit the City, the
FTA Administrator, the Comptroller General of the United States or any of their
authorized representatives and contractors access to the sites of performance under this
contract as reasonably may be required.

37. Civil Rights.

(a) Title VI of the Civil Rights Act of 1964
The Seller agrees to comply with all requirements of Title VI of the Civil Rights Act
of 1964, 42 U.S.C. § 2000d section 303 of the Age Discrimination Act of 1975, 42
U.S.C. §6102, section 202 of the Americans with Disabilities Act of 1990, § 12132, and
Federal transit law at 49 U.S.C. § 5332, all as amended as well as USDOT regulations,
"Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation", 49 CFR Part 21. In addition, the Seller agrees to comply with
applicable Federal implementing regulations and other implementing requirements FTA
may issue.
(b) Equal Employment Opportunity
The Seller will not discriminate against any employee or applicant for employment
because of race, color, creed, sex, disability, age, or national origin. The Seller agrees to
take affirmative action to ensure that applicants are employed, and that employees are
treated during employment, without regard to their race, color, creed, sex, disability, age,
or national origin. Such action shall include, but not be 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. The Seller shall insert the foregoing provision
(modified only to show the particular contractual relationship) in all its third party
contracts, except contracts for standard commercial supplies or raw materials and
construction contracts, and shall require all such third party contractors to insert a similar
provision in all subcontracts, except contracts for standard commercial supplies or raw
materials.
(c)Access Requirements for Individuals with Disabilities
The Seller shall comply with 49 USC 5301(d), stating Federal policy that the elderly
and persons with disabilities have the same rights as other persons to use mass
transportation services and facilities and that special efforts shall be made in planning and
designing those services and facilities to implement that policy. The Seller shall also
comply with all applicable requirements of Sec. 504 of the Rehabilitation Act (1973), as
amended, 29 USC 794, which prohibits discrimination on the basis of handicaps, and the
Americans with Disabilities Act of 1990 (ADA), as amended, 42 USC 12101 et seq.,
which requires that accessible facilities and services be made available to persons with
disabilities, including any regulations and subsequent amendments.
(d) Inclusion
The Seller agrees to include the requirements of subsections (a) — (c) in each
subcontract financed in whole or in part with Federal assistance provided by FTA,
modified only if necessary to identify the affected parties.

(e)Disadvantaged Business Enterprise (DBE)
il

1. This Contract is subject to the requirements of Title 49, Code of Federal
Regulations, Part 26, Participation by Disadvantaged Business Enterprises in
Department of Transportation Financial Assistance Programs. The national goal for
participation of Disadvantaged Business Enterprises (DBE) is 10%. Nashua Transit's
overall goal for DBE participation is 2.0%. A separate contract goal has not been
established for this procurement.

2. The Seller shall not discriminate on the basis of race, color, national
origin, or sex in the performance of this contract. The Seller shall carry out applicable
requirements of 49 CFR Part 26 in the award and administration of this DOT-assisted
contract. Failure by the Seller to carry out these requirements is a material breach of this
contract, which may result in the termination of this contract or such other remedy, as
the City deems appropriate. Each subcontract the Seller signs with a subcontractor must
include the assurance in this paragraph (see 49 CFR 26.13(b)).

3. The Seller will be required to report its DBE participation obtained
through race-neutral means throughout the period of performance.
4. The Seller is required to pay its subcontractors performing work related to

this contract for satisfactory performance of that work no later than 30 days after the
Seller’s receipt of payment for that work from the City.

5. The Seller must promptly notify the City whenever a DBE subcontractor
performing work related to this contract is terminated or fails to complete its work, and
must make good faith efforts to engage another DBE subcontractor to perform at least
the same amount of work. The Seller may not terminate any DBE subcontractor and
perform that work through its own forces or those of an affiliate without prior written
consent of the City.

Failure of the Seller to comply with this section or to include it in any subcontract of
any tier will constitute a breach of contract and, after notification to the DOT, may result
in termination of the Contract by the City or such remedy as the City deems appropriate.

38. Incorporation of Federal Transit Administration (FTA) Terms. The
preceding provisions include, in part, certain Standard Terms & Conditions required
by USDOT, whether or not expressly stated in the preceding contract provisions. All
USDOT required contractual provisions, as stated in FTA Circular 4220.1F, are hereby
incorporated by reference. Anything to the contrary herein notwithstanding, all FTA
mandated terms shall be deemed to control in the event of a conflict with other
provisions contained in this contract. The Seller shall not perform any act, fail to
perform any act, or refuse to comply with any request that would cause the City to be
in violation of FTA terms and conditions.

39, Environmental Resource Conservation and Energy Conservation.

(a) Energy Conservation.
Seller shall comply with mandatory standards and policies relating to energy

efficiency that are contained in the New Hampshire energy conservation plan issued in
compliance with the Energy Policy and Conservation Act, 42 U.S.C. § 6321 et seq.
(b) Clean Air.

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1. Seller shall comply with all applicable standards, orders or regulations
pursuant to Section 306 of the Clean Air Act, as amended, 42 U.S.C. § 7606, and other
requirements of the Clean Air Act, as amended, 42 U.S.C. §§ 7401 — 7671q. Seller shall
report each violation to the City and understands and agrees that the City will, in turn,
report each violation as required to FTA and the appropriate EPA Regional Office.

2. Seller shall include these requirements in each subcontract exceeding
$100,000 financed in whole or in part with FTA assistance.

(c) Clean Water

1. Seller shall comply with all applicable standards, orders or regulations
issued pursuant to Section 508 of the Clean Water Act, as amended, 33 U.S.C. § 1368, and
other requirements of the Clean Water Act, as amended, 33 U.S.C. §§ 1251 — 1377. Seller
shall report each violation to the City and understands and agrees that the City shall, in
turn, report each violation as required to FTA and the appropriate EPA Regional Office.

2. Seller shall include these requirements in each subcontract exceeding
$100,000 financed in whole or in part with FTA assistance.

40. Debarment and Suspension.

(a) The Seller agrees to comply with the requirements of Executive Order Nos. 12549
and 12689, “Debarment and Suspension,” 31 U.S.C. Section 6101 note; and USDOT
regulations on Debarment and Suspension and 49 CFR Part 29.

(b) Unless otherwise permitted, the Seller agrees to refrain from awarding any third-
party contract of any amount to or entering into any subcontract of any amount with a party
included in the “U.S. General Services Administration’s (U.S. GSA) List of Parties
Excluded from Federal procurement and Non-procurement Program,” implementing
Executive Order Nos. 12549 and 12689, “Debarment and Suspension” and 49 CFR Part 29.
The list also include the names of parties debarred, suspended, or otherwise excluded by
agencies, and contractors declared ineligible for contract award under statutory or
regulatory authority other than Executive Order Nos. 12546 and 12689.

(c) Before entering into any subcontracts with any subcontractor, the Seller agrees to
obtain a debarment and suspension certification from each prospective recipient containing
information about the debarment and suspension status and other specific information of
that awarding agency and its “principals,” as defined at 49 CFR Part 29.

(d} Before entering into any third-party contract exceeding $25,000.00, the Seller
agrees to obtain a debarment and suspension certification from each third-party contractor
containing information about the debarment and suspension status of that third-party
contractor and its “principals,” as defined at 49 CFR 29.105(p). The Seller also agrees to
require each third party contractor to refrain from awarding any third-party subcontract of
any amount, at any tier, to a debarred or suspended subcontractor, and to obtain a similar
certification for any third-party subcontractor, at any tier, seeking a contract exceeding
$25,000.00.

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Jim Donchess
Mayor e City of Nashua

To: Board of Aldermen

From: Mayor Jim Donchess

Date: July 27, 2022

Re: Multi-Year Contract Award — ESRI

Pursuant to NRO: § 5-74/B: A contract that extends from the current fiscal year into succeeding

fiscal year(s) in which no funds have been appropriated nor otherwise designated for this purpose
shall be approved by the full Board of Aldermen before the contract shall become binding on the

City.

The Finance Committee has approved and placed on file the notification of the award of the
referenced contract at the August 3, 2022 meeting and as such | am requesting the full Board of
Alderman approve the following contract:

Item: GIS Enterprise License
Value: $38,436 per year for 3 years to total $115,308
Vendor: ESRI
Purchasing Memo#: 22-315 dated July 27, 2022
Contract Term: 3 years
Thank you.

229 Main Street * PO Box 2019 * Nashua, New Hampshire 03061-2019
603.589.3260 * fax 603.594.3450 * NashuaMayor@NashuaNH. gov
www.NashuaNH. gov