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D The HSFN shail provide 24/7 access to the facilities to the Animal Control Officer
and/or officers of the Nashua Police Department.

4. In accordance with Nashua Revised Ordinances Chapter 93-6 Impoundment of
dogs, cats and ferrets found at large, the Contractor will post a monthly listing of all
strays available for adoption on the HSFN website.

5. In accordance with State of New Hampshire Law, no wildlife of any kind will be
accepted into the shelter living or dead.

6. HSFN will be required to provide the following services for any animal subject to
impoundment from the Animal Control Officer or Nashua Police Department:

e HSFN will maintain records of all animals accepted at the shelter;

e [f contact information is provided, HSFN will be responsible for notifying by
telephone, text, email, fax or postal mail, within a reasonable time period not to
exceed 24 hours, the owners of all animals brought to the shelter by the Animal
Control Officer or Nashua Police Officers;

e HSFN will retain confirmatory proof of notification of the owner;

e HSFN will verify Rabies vaccinations for post-quarantine animals;

e Provide impounded animals with adequate food, water and shelter;

7. HSFN will provide, or ensure provision and payment of, all rabies-related services for
canines, felines and ferrets for the City of Nashua impounded by the Animal Control
Officer or a Nashua Police Officer only, in accordance with RSA 436 Rabies Control.

8. HSFN will ensure the proper handling of any remains of animals that have been prepared
for rabies testing.

9. HSFN will provide a copy of Post Bite Veterinarian Reports to the Nashua
Environmental Health Department within 48 hours of veterinarian exam for animals
impounded/quarantined at HSFN. Post Bite reports may be submitted by postal mail or

electronically to EH(@NashuaNH.Gov.
CITY RESPONSIBILITIES

The City of Nashua will be responsible for the oversight of the Contract with the Humane
Society for Greater Nashua and will work with HSFN to develop service procedures
including but not limited to: animal impoundment procedures; rabies protocois; provide
coverage of Animal Control! Officer responsibilities during times that the ACO is not
available; assist the HSFN with owner-identification and notification; cooperate with NH
Fish & Game for the handling of wild or feral animals; the ACO will obtain, become trained
in the use of, and utilize a microchip scanner to determine if an animal is owned or stray;
and will pay $50.00 each for the replacement of facility keys lost by the Animal Control
Officer or Nashua Police Department employees. The City will not impose any adoption
criteria to be used as HSFN has policies and procedures in place regarding adoption of animals.
No obviously sick or injured animals will be deposited at HSFN by any city agent.

PLACE OF PERFORMANCE

The work described above shall be performed at Humane Society for Greater Nashua
Corporation, 24 Ferry Road, Nashua, NH 03064 or in Humane Society approved foster
families or facilities.

TIME PERIOD

The Contractor agrees to commence work on July 1, 2019 and complete all functions
required in a timely, professional and competent manner. This Agreement will expire on

June 30, 2020.

TERMINATION CLAUSES

The City or Contractor can terminate this Agreement, with a 90-day written notice. The
City will pay the Contractor a prorated amount for all services performed up to that date.
The City is entitled to all contract-related notes, drafts and documents produced by the
Contractor up to that date.

PAYMENT FOR SERVICES
The Contractor will be paid as follows:

The Contractor will be paid in monthly increments of $8,256.75. Payment will be made
through the City payment system. Total contract amount for program expenses cannot
exceed $99,081.00.

REPORTING

The City shall not supervise or directly control the work of the Contractor. The City does
reserve the right to inspect the work being performed. The Contractor shall have the ultimate
authority to determine the hours of work, the length of workdays, the means and methods of
performance of the work, and the City shall not interfere in this regard.

The designated City Representative for this Agreement is the Director of Public Health and
Community Services. All notices, project materials, requests by Contractor, invoice forms,
monthly reports, and any other communication about the contract, shall be addressed or be
delivered to the City Representative.

The City of Nashua’s Health Officer and Animal Control Officer both have Statutory Authority
over the Impoundment and Quarantine activities within the City of Nashua. By signing this
Agreement, the Contractor agrees to abide by the Statutory Authority granted the Health Officer
and the Animal Control Officer under NH RSA 436 and 466, as well as by the Nashua Revised
Ordinances, Chapter 93, Animals.

All concerns regarding this Agreement and the Scope of Services described within this
Agreement shall first be directed to the Division of Public Health and Community Services

3

Director. The Director shall bring forward any concerns to the appropriate City department or
City Official.

The Contractor shall submit by e-mail, an electronic copy of the required Impoundment &
Quarantine Monthly Report to the Division of Public Health and Community Services Director.

The Executive Director and/or the designated Directors of the HSFN shall meet with the
following City staff at least two (2) times per year to review the monthly reports and contract
deliverables: Director of the Division of Public Health and Community Services, Health Officer,
Animal Control Officer, Chief of Police or designee, and Finance Manager for the Division of
Public Health and Community Services.

CITY INSPECTION OF PLACE OF PERFORMANCE AND CONTRACT MATERIALS

The Contractor’s Place of Performance shall be subject to inspection and compliance with the
City of Nashua’s Revised Ordinance 93-3, Keeping and Housing Animals. This shall
include: the location, construction, erection and sanitary condition of all structures used in
the fulfillment of the Scope of Services of this Agreement. In accordance with NRO 93-3,
the Contractor shall submit any plans to the Board of Health before any building used in
the keeping and housing of animals under this Agreement shall be constructed, altered,
extended or moved.

The books, records, documents and accounting procedures and practices of the Contractor related
to this contract shall be subject to inspection, examination and audit by the City, including, but
not limited to, the contracting agency and Corporation Counsel.

The City will provide at least 48 hours notice of inspection.
SUBCONTRACTORS

The Contractor may, at his/her discretion and at his/her own expense, employ such
subcontractors as may be necessary for the performance of work. The Contractor agrees to pay
any wages, taxes, unemployment insurance, withholding taxes, and workers’ compensation
insurance required by law for subcontractors. Said subcontractors will not be paid or supervised
by the City. The Contractor shall provide the City with prior notice of the Contractor’s intent to
employ subcontractors to perform any services required by this Agreement. The City shall have
the right to reject any subcontractors for good cause. Prior approval by the City of a
subcontractor is not required in emergency situations.

INSURANCE

The Contractor agrees to provide his/her own workers’ compensation and liability insurance for
work performed, naming the City as additional insured. The contractor must maintain required
limits of coverage for the duration of the contract/project.

Prior to commencement with the project, the selected agency/individual will be required to
provide proof of insurance, ten (10) days prior to commencing work under the contract document
and will notify the City of any changes in coverage or change of carrier should they deviate from

the following:
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- Comprehensive General Liability - $1,000,000 per occurrence/$2,000,000 aggregate -
City of Nashua must be named as an additional insured.

- Workers' Compensation by a Class A Carrier as required by statute/Employers' Liability
of $500,000/$500,000/$500,000.

Contractor shall maintain for the duration of the contract all required insurance coverage.
Coverage must be written with an insurance carrier licensed to do business in the State of New
Hampshire. City of Nashua requires thirty (30) days written notice of cancellation or material
change in coverage.

Contractor is responsible for filing updated Certificates of Insurance with the City of Nashua
Risk Management Department during the life of the contract. A copy of the current Certificates
of Insurance must be submitted to the Director of the City of Nashua’s Division of Public Health
and Community Services within thirty (30) days of the signing of the Agreement.

Regardless of the coverage provided by any insurance, the Contractor agrees to indemnify and
shall defend and hold harmless the City, 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,
attorneys’ 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 the 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. The Contractor's indemnity, defense 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. The City agrees to indemnify, defend and hold harmless the
Contractor, 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 resulting or arising from the City’s, its agents’ or representatives’ sole
negligence or willful conduct.

COMPLIANCE WITH APPLICABLE LAWS

The 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 state and local laws and
requirements regarding the impoundment and quarantining of animals, federal, state, and local
accounting procedures and requirements, all immigration and naturalization laws, and the
Americans With Disabilities Act. The Contractor 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 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.

MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT

This contract constitutes the entire contract between the City and the 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.

In the event that any current law, regulation, or ordinance, either local or state, is amended,
rescinded, newly enforced or enacted which affects this Agreement, the parties shall, in good
faith, amend this Agreement in order to be in compliance with said Legislative changes. If said
changes cause an increase in fees or costs by either party, the parties in good faith shall amend
this Agreement to reflect the treatment of said fees or costs.

INDEPENDENT CONTRACTOR

The Contractor agrees that HSFN is completely independent from the City and is not an
employee of the City. The Contractor warrants that HSFN may work for other individuals and/or

entities.
CHOICE OF LAW AND VENUE

This Agreement shall be governed exclusively by the laws of the State of New Hampshire and
any litigation regarding the interpretation or enforcement of this Agreement shall only be
brought in a court located in the State of New Hampshire.

Douglas Barry, Executive Director James Donchess, Mayor
Humane Society for Greater Nashua Corporation City of Nashua, NH
Date Date

CITY OF NASHUA
OFFICE OF CORPORATION COUNSEL

Attorney-Client Confidential Communication
Memorandum

To: | Mayor and Board of Aldermen
cc: ~= ‘File

From: Celia K. Leonard, Esquire, Deputy Corporation Counsel
Date: July 9, 2019

RE: Hillsborough County Superior Court South Docket No. 226-2019-CV-00248
Humane Society Contract

Background

The Humane Society for Greater Nashua (HSGN), in addition to its own work, has
provided shelter, pound, isolation and quarantine services for the City for over 20 years pursuant
to a series of annual written contracts. The fiscal year 2020 contract is currently before the
Finance Committee for approval. The contract as presented includes cats, as it has for decades.

One Nashua resident, Mr. Braun, is of the opinion that it is illegal for the City to so
contract with the HSGN. He has filed a lawsuit against the City and Mayor, Hillsborough
County Superior Court South Docket No. 226-2019-CV-00248, in which he is asking the court to
issue an injunction ordering the City not to contract with any third party to impound cats as
strays or for running at large. He claims that spending public funds (or approving to spend
funds) for such purposes as impounding cats as strays or running at large violates city ordinance,
specifically NRO 93-6, state law (no specific law is referenced) and the “due process clauses of
the New Hampshire and United States constitutions” (without elaboration). His petition is
devoid of case law or statutory support for his assertions.

I disagree with Mr. Braun’s legal assertions and it is my opinion that the contract with
HSGN, including the cat provisions, is legal in all respects.

The City filed a Motion to Dismiss Mr. Braun’s lawsuit for failure to state a claim. Mr.
Braun objected and a hearing is scheduled on the motion on August 5, 2019.

The facts leading to the lawsuit are that on September 18, 2017, Mr. Braun allowed one
of his cats to roam unfettered outside in the public right of way and on the private property of
others. The cat had no collar or other outward identifying information. Said cat was trapped by
another Nashua resident on the resident’s private Nashua property in a HSGN “have-a-heart”’
trap. After capture of the trespassing cat, the resident called the Animal Control Officer of the
Nashua Police Department (“ACO”) requesting transport of the cat to HSGN. The ACO agreed
and transported the cat to HSGN. After the brief transport, HSGN took custody of the cat from
the ACO. HSGN returned the cat, unharmed, to Mr. Braun.

Analysis

The Board of Aldermen, here acting through the Finance Committee, has the statutory
powers to administer the operations of the city, including authority to "manage the prudential
affairs of the [city] and perform the duties by law prescribed." RSA 41:8, see also RSA 47:13.

Many of the Board of Aldermen’s powers and duties come from specific statutes (and
thus are “by law prescribed.”) For example, budget administration, RSA 32; financial
accounting and safeguarding, RSA 41:9; and management of city property, RSA 41:1 1-a, unless
assigned to another board by statute. Likewise, the Board of Aldermen is specifically given the
power to make any contract “which may be necessary and convenient for the transaction of the
public business of the town.” RSA 31:3.

Cats can contract and transmit rabies. Having a population of abandoned, hurt or feral
cats or cats that are allowed to roam without check or recourse on public lands and other
peoples’ yards can reasonably be viewed as a nuisance and potential health threat to the City’s
human population. Consequently, contracting for a safe place to transport to and drop-off
wayward, injured, abandoned or at-large domestic animals, such as cats, is necessary and
convenient for the transaction of the public business of the City. Further, there is no prohibition
in state law on the City contracting to impound cats.

In addition to the statutory authority to contract, the NH Supreme Court has found that
“t]he particular duties comprehended within the meaning of ihe phrase ‘prudential affairs’ are
not easily enumerated...” They are "empowered to do only such acts as are required to meet the
exigencies of ordinary town business." Moulton v. Beals, 98 N.H. 461, 463-4 (1954)(internal
citations omitted).

While seemingly limiting language, the authority "to meet the exigencies of ordinary
town business" should not be underestimated. The Board of Aldermen 1s empowered to protect
the City’s interests when no other board or official is specifically charged with the responsibility.
Also, while there are many specific statutory powers conferred on the Board of Aldermen and
other boards and officials, there are important government functions that are not expressly
assigned by statute. With the “prudential affairs” language, not all City actions need be
specifically articulated in state statute or City ordinance to be valid as long as they relate to

Page 2 of 3

“ordinary [city] business.” At-large cats can scratch wood-work, defecate and urinate in gardens
and elsewhere, and carry disease that may be spread to both humans and other animals.
Contracting for a safe place to transport to and drop-off wayward, injured, abandoned or at-large
domestic animals, such as cats, in order to avoid or minimize such nuisances is therefore
ordinary city business.

In his lawsuit, Mr. Braun argues that the City “must adopt specific and express law as an
ordinance of the municipality in order to undertake the general grant of power provided by RSA
31.” He cites no case law or statutory authority for his position and he cannot. As discussed
above, not every action of the City must be by ordinance. The Board of Aldermen (or Finance
Committee) can and does act through a majority (or more) vote of the body. Voting to approve a
contract is a valid means to effectuate the “public business” of the city for the purposes of the
contract. In this instance, voting on a contract to fund shelter, pound, isolation and quarantine
services for the City, including for cats, is a legal purpose and a valid method to effectuate such
purpose. An ordinance is not required. Another example, the City contracts to install specialty
devices at the wastewater treatment plant. There is no ordinance that specifically states that
contracts can be entered into for such devices. The City can do so under its general contracting
power of RSA 31:3 and its ability to manage the prudential affairs of the city under RSA 41:8.

There are state laws regarding (or which could relate to) cats and the City’s authority to
legislate them. RSA Chapter 466 allows the City to license cats (but does not require it); see also
RSA 147:1, I which allows laws in regards to nuisances and RSA 47:17, I, XIV, which allows
laws to “carry into effect all powers by law vested in the City and “to abate and remove
nuisances.” Mr. Braun appears to argue that these statutes ‘preempt the field’ in regards to cats
and that, as they reference ordinances, the Board of Aldermen is only authorized to act through
ordinance, not by resolution or vote of the body to approve a contract. Again, Mr. Braun cites no
authority to support his position. Read in harmony with the Board of Aldermen’s ability to
manage the prudential affairs of the city, RSA 41:8, and the power to make any contracts “which
may be necessary and convenient for the transaction of the public business of the town,” RSA
31:3, those statutes do not preempt all City action in regards to cats. Neither do they require an
ordinance for the City to act in regards to cats.

Even if the Court disagrees that the Board of Aldermen does not have to have an
ordinance to contract with HSGN, the Board has enacted NRO 93-6. “Impoundment of dogs,
cats, ferrets and chickens found at large.” Section A of the ordinance relates only to dogs,
however the rest, sections B — F, specifically reference cats. Section A can be read in harmony
with NRO 93-2 forbidding certain animals to be at large. Cats are not on the list in 93-2, A.
That simply means that there is no penalty under NRO 1-9 regarding a cat being at large and
none was issued against Mr. Braun. An act does not have to result in a violation for the
impoundment of an animal as NRO 93-6, B — F delineate. Also while 93-6, A states that certain
at-large dogs “shall be” taken into custody, read as a whole 93-6 does not prohibit other at-large
animals from being taken into custody. The references to impoundment in sections B — F
necessarily and fairly imply the authority to seize an at-large dog, cat or ferret. It is impossible
to impound something that has not first been seized.

Mr. Braun’s constitutional claims are not pled in detail or well-formed and are, in any
event, equally without merit.

Page 3 of 3

THE CITY OF NASHUA "The Gate City"

Financial Services

Purchasing Department

August 8, 2019
Memo #20-009

TO: MAYOR DONCHESS
FINANCE COMMITTEE

SUBJECT: PURCHASE OF NPD STORAGE SERVER (VALUE: $39,732)
DEPARTMENT: 150 POLICE; FUND: GENERAL

Please see attached communications from Karen A. Smith, Business Manager dated July 31, 2019 for
the information related to this purchase.

Pursuant to § 5-78 Major purchases (greater than $10,000) A. All supplies and contractual services,
except as otherwise provided herein, when the estimated cost thereof shall exceed $10,000 shall be
purchased by formal, written contract from the lowest responsible bidder, after due notice inviting bids.

The Nashua Police Department and the Purchasing Department recommend the award of this purchase
in the amount of $39,732 from Axis Business Solutions of Portsmouth, NH.

Dan Kooken
Purchasing Manager

Ce: K Smith M Carignan P Cinfo

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

NASHUA POLICE
Date: 37 July 2079

intradepartmenta!l Communication

To: Dan Kooken, Purchasing Manager
From: Peter Cinfo, IT Manager - Police

Subject: Storage

The Nashua Police Department Information Technology Division is requesting the purchase of a new
Storage Area Network (SAN) to replace aging equipment. Our current SAN was purchased back in 2010
and has served us well but is far beyond the 5 year industry (and department) standard for replacement.
While we do have other SAN's within our network, this particular piece of equipment is a much higher-end
product designed to have 99.9% up time and specifications that allow for high traffic data return rates.
While the others are nearly half of that specification, this particular SAN is the storage for each of the
departments 18 virtual servers, 17 virtual Desktops, and most importantly, all Records Management and
Dispatch software. | have been advised that our current product has been marked as “END OF LIFE" and
most parts will begin to become unavailable. Just recently one of the hard drives failed and we were
forced to seek out an aftermarket vendor on the Internet to get the replacement parts needed. As you can
imagine without this particular SAN, server and network operations will be, greatly affected. Unfortunately,
ihis particular item cannot be purchased and upgraded “in pieces” from year-to-year. It must be a one-time
full purchase. Three vendors were contacted for quotes as listed below.

VENDOR NAME ADDRESS AMOUNT

Axis Business Solutions Portsmouth, NH $39,732.19

Aspire Technologies Inc Portsmouth, NH $45,903.00

Hewlett Packard Enterprises Andover, MA $92,659.03
$

The Nashua Police Department recommends that the purchase be made through the vendor with the
lowest quoted price, which was received from “Axis Business Solutions” in the amount of $39,732.19 for
the replacement SAN quoted at the Nashua Police Department.

Sincerely,

af
dos

Peter Cinf
IT Manag¢r - Police