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Neither party shall be considered in default of ihe performance of its obligations hereunder to the
extent that performance of such obligations is prevented or delayed by any cause, existing or
future, which is beyond the reasonable control of such party. Delays arising from the actions or
inactions of one or more of Service Provider's principals, officers, employees, agents,
subcontractors, consultants, vendors, or suppliers are expressly recognized to be within Service
Provider's control.

9, DISPUTE RESOLUTION. Any dispute not within the scape of section 7 or section 8 shall
be resolved under this paragraph. 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 shail then attempt to resolve the dispute
through good faith efforts and negotiation between the City Representative and a Service
Provider representative. At all times and as long as the City is in compliance with iis payment
obligations to Service Provider, Service Provider shall carry on the undisputed work under this
contract and maintain and complete undisputed work in accordance with the requirements of the
contract or determination or direction of the City. If the dispute is not resolved within 30 days,
either party may request that the dispute be submitted to the Board of Public Works for final
resolution. The decision of the Board of Public Works shall be final and binding on the parties.
If either party is dissatisfied with the decision of the Board of Public Works, that party may
immediately terminate the contract under this paragraph, with Service Provider being entitled to
compensation for work actually and satisfactorily performed up to the time of the termination
and the City being entitled to all contract materials in accordance with paragraph 21, and
compensation for any additional damages or expenses incurred in completing the work under the
contract, including, without limitation, the costs of securing the services of other Service
Providers.

10. NO DAMAGES FOR DELAY. Apart from a written extension of time, no payment,
compensation, or adjustment of any kind shall be made to Service Provider for damages because
of hindrances or delays in the progress of the work from any cause, and Service Provider agrees
to accept in full satisfaction of such hindrances and delays any extension of time that the City
may provide, except when the City request Service Provider to provide over time or expend
additional resources to complete the work and such delay is not the result of Service Providers
negligent acts, errors or omissions.

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

> General Liability insurance in the amount of $1,000,000 per occurrence; 52,000,000
aggregate:
» $1,000,000 Combined Single Limit Automobile Liability;
*Coverage must include all owned, non-owned and hired vehicles.
» $1,000,000 Profession Liability;
> and Workers’ Compensation Coverage in compliance with the State of New Hampshire
statutes, $100,000/$500,000/$100,000.

Service Provider shall maintain in effect at all times during the performance under this contract
all specified insurance coverage with insurers. None of the requirements as to types and limits to
be maintained by Service Provider are intended to and shall not in any manner limit or qualify

the liabilities and obligations assumed by Service Provider under this contract. The City of
Nashua shall not maintain any insurance on behalf of Service Provider. Subcontractors are
subject to the same insurance requirements as Service Provider and it shall be the Service
Provider’s responsibility to ensure cornpliance of this requirement.

Service Provider will provide the City of Nashua with certificates of insurance for coverage as
listed below and endorsements affecting coverage required by the contract within ten calendar
days after the City issues the notice of award. The City of Nashua requires thirty days written
notice of cancellation of coverage. The certificates and endorsements for each insurance policy
must be signed by a person authorized by the insurer and who is authorized by the State of New
Hampshire. General Liability and Auto Liability policies must name the City of Nashua as
an additional insured and reflect on the certificate of insurance. Service Provider is responsible
for filing updated certificates of insurance with the City of Nashua’s Risk Management
Department during the life of the contract.

= All deductibles and self-insured retentions above $100,000.00 shall be fully disclosed in
the certificate(s) of insurance.

# If aggregate limits of less than $2,000,000 are imposed on bodily injury and property
damage, Service Provider must maintain umbrella lability insurance of at least
$1,600,000. All aggregates must be fully disclosed on the required certificate of
insurance,

® The specified insurance requirements do not relieve Service Provider of its
responsibilities or limit the amount of its lability to the City or other persons, and Service
Provider is encouraged to purchase such additional insurance, as it deems necessary.

« The insurance provided herein is primary, and no insurance held or owned by the City of
Nashua shall be called upon to contribute to a loss.

* Service Provider is responsible for and required to remedy all damage or loss to any
property, including property of the City, to the extent caused by Service Provider or
anyone employed, directed, or supervised by Service Provider.

42. INDEMNIFICATION Regardless of any coverage provided by any insurance, Service
Provider 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, reasonable attorney’s fees, costs and expenses to the extent caused by any
negligent act, omission, or fault or willful misconduct, whether active or passive, of Service
Provider or of anyone acting under its direction or control or on its behalf in connection with or
incidental to the performance of this contract. Service Provider’s indemnity, defense and hold
harmless obligations, or portions thereof, shall not apply to liability io the extent caused by the
sole negligence or willful misconduct of the party indemnified or held harmless.

13. FiscaL ConTiINnGency. All payments under this contract are contingent upon the
availability io 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 Service Provider with a right of payment
over any other entity. Any funds obligated by the City under this contract that are not paid to
Service Provider shall automatically revert to the City’s discretionary control upon the

completion, termination, or cancellation of the agreement. The City shall not have any
obligation to re-award or to provide, in any manner, the unexpended funds to Service Provider.
Service Provider shall have no claim of any sort to the unexpended funds.

i4. COMPENSATION. Review by the City of Service Provider's submitted monthly invoice
forms and progress reports for payment will be promptly accomplished by the City. If the City
disagrees with any portion of an invoice or requires additional information, it shall notify Service
Provider in writing of the amount in dispute and the specific reason for the objection within 10
days of receipt of invoice and The City shall pay all undisputed invoices of Service Provider in
full within 30 days of the submitted monthly invoice forms and progress reports.

15, COMPLIANCE WITH APPLICABLE Laws. Service Provider, at all times, shall fully and
completely comply with al! 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. Service
Provider 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.

16. NONDISCRIMINATION. If applicable or required under any federal or state law, statute,
regulation, order, or other requirement, Service Provider agrees to the following terms. Service
Provider 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. Service Provider 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, Service Provider's attention is directed to 41 C.P.R. § 60-
1.4, and the clause entitled "Equal Opportunity Clause" which, by reference, is incorporated into
this contract, te 41 C.F.R. § 60-250 et seq. and the clause entitled "Affirmative Action
Obligations of Service Providers and Subcontractor for Disabled Veterans and Veterans of the
Vietnam Era," which, by reference, is incorporated in this contract, and to 41 CLFLR. § 60-471
and the clause entitled "Affirmative Action Obligations of Service Providers and Subcontractors
for Handicapped Workers," which, by this reference, is incorporated in this coniract.

Service Provider 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 Service Provider under this contract.

In connection with the performance of work under this contract, Service Provider 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.

Service Provider 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 Service Provider shall constitute a material breach of the contract.

17. FEDERAL SUBCONTRACTING REQUIREMENTS. If Service Provider awards a subcontract
under this contract, Service Provider, if applicable, shall use the following alternative steps:

A. Using the services of the Small Business Administration and the Minority
Business Development Agency of the United States Department of
Commerce, as appropriate; and

B. Reguiring the subcontractor, if it awards subcontracts, to take the
affirmative steps set forth in paragraph A.

If applicable, Service Provider agrees to complete and submit to the City a Minority Business
Enterprise/Woman Business Enterprise (MBE/WBE} Utilization Report (Standard Form 334)
within 30 days after the end of each fiscal quarter until the end of the contract.

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

19. ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING. Service Provider shall
not assign, transfer, delegate, or subcontract any rights, obligations, or duties under this contract
without the prior written consent of the City. Any such assignment, transfer, delegation, or
subcontracting without the prior written consent of the City is void. Any consent of the City 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.

20. Ciry INSPECTION OF CONTRACT MATERIALS. The books, records, documents and
accounting procedures and practices of Service Provider related to this contract shall be subject
to inspection, examination and audit by the City, including, but not limited to, the contracting
agency, the Board of Public Works, Corporation Counsel, and, if applicable, the Comptroller
General of the United States, or any authorized representative of those entities.

21. DISPOSITION OF CONTRACT MATERIALS. Except for pre-existing works and/or other
intellectual property owned by Services Provider, 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 Service Provider in the performance of its obligations under this contract shall be the
exclusive property of the City and all such materials shall be remitted and delivered, at Service

Provider's expense, by Service Provider to the City upon completion, termination, or cancellation
of this contract. Alternatively, if the City provides its written approval to Service Provider, 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 Service Provider in the performance of its
obligations under this contract must be retained by Service Provider for a minirnum of four years
after final payment is made and all other pending matiers are closed. [f, at any time during the
retention period, the City, in writing, requests any or all of the materials, then Service Provider
shall promptly remit and deliver the materials to the City. Service Provider shall not use,
willingly allow or cause to have such materials used for any purpose other than the performance
of Service Provider's obligations under this contract without the prior written consent of the City.
Service Provider shall not be responsible for any claims arising out of the City’s extraction or
modification of the material, or for any claims arising out of the use of such materials by the City
for any other purpose than that which is expressly set forth under this Contract.

22. Pusiic Recorps Law, COPYRIGHTS, AND PATENTS. Excluding Services Provider’s
pre-existing work and intellectual property, Service Provider expressly agrees that all documents
ever submitted, filed, or depasited with the City by Service Provider (including those remitted to
the City by Service Provider pursuant to paragraph 21), 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 Service Provider 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 Service Provider. The City shall have the right to reproduce any such materials,

Service Provider 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
clairns, demands, suits, actions, judgments, or executions, for damages or any other relief, in any
administrative or judicial forum, against the City or any of its officers or employees, in either
their official or individual capacity, for viclations of or infringement of the copyright or patent
laws of the United States or of any other nation. Service Provider agrees to indemnify, to defend,
and to hold harmless the City, 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 Service
Provider infringes any copyright or that any equipment, material, or process (or any part thereof)
specified by Service Provider infringes any patent.

Service Provider shall have the right, in order to avoid such claims or actions, to substitute at its
expense non-infringing materials, concepts, products, or processes, or to modify such infringing
materials, concepts, producis, 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.

23. FINAL ACCEPTANCE. Upon completion of all work under the contract, Service Provider
shall notify the City in writing of the date of the completion of the work and request
confirmation of the completion from the City. Upon receipt of the notice, the City shall confirm

to Service Provider in writing that the whole of the work was completed on the date indicated in
the notice or provide Service Provider with a written list of work not completed. With respect to
work listed by the City as incomplete, Service Provider shall promptly complete the work and
the final acceptance procedure shal! be repeated. The date of final acceptance of a project by the
City shall be the date upon which the Board of Public Works or other designated official accepts
and approves the notice of completion.

24. Taxes. The City shall pay or reimburse Service Provider, as appropriate, for all
categories of taxes, other than income tax, including without limitation, use, sales consumer,
local license, levies, duties, and assessments of every nature due in connection with any work
performed under the contract. Service Provider is responsible to make any and all payroll
deductions required by law. The contract sum and agreed variations to it shall include all taxes
imposed by law. Service Provider hereby indemnifies and holds harmless the City from any
liability on account of Service Providers income and payroll taxes,,.

25. NON-WAIVER OF TERMS AND CONDITIONS. None of the terms and conditions of this
contract shall be considered waived by the City. 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 in a written waiver.

26. 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.

27. Prowisirep INTERESTS. Service Provider shall not allow any officer or employee of
the City to have any indirect or direct interest in this contract or the proceeds of this contract.
Service Provider warrants that no officer or employee of the City has any direct or indirect
interest, whether contractual, noncontractual, financial or otherwise, in this contract or in the
business of Service Provider. If any such interest comes to the attention of Service Provider at
any time, a full and complete disclosure of the interest shall be immediately made in writing to
the City. Service Provider 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. Service Provider further
warrants that no person having such an interest shall be employed in the performance of this
contract. If City determines that a conflict exists and was not disclosed to the City, it may
terminate the contract at will or for cause in accordance with paragraph 8.

In the event Service Provider (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 may
terminate the contract at will or for cause in accordance with paragraph 8. Upon termination,
Service Provider shall refund to the City any profits realized under this contract, and Service
Provider shall be liable to the City for any costs incurred by the City in completing the work
described in this contract. At the discretion of the City, these sanctions shall also be applicable
to any such conviction obtained after the expiration or completion of the contract.

Service Provider warrants that no gratuities (including, but not limited to, entertainment or gifts)
were offered or given by Service Provider to any officer or employee of the City 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 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 under this contract or at law.

28. THirp PARTY INTERESTS AND LIABILITIES. The City and Service Provider, including
any of their respective agents or employees, shall not be liable to third parties for any act or
omission of ihe 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 and
Service Provider.

29. 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.

30. SEVERABILITY. In the event that any provision of this contract is rendered invalid or
unenforceable by any valid act of Congress or of the New Hampshire legislature or any court of
competent jurisdiction, or is found to be in violation of state statutes or regulations, the invalidity
or unenforceability of any particular provision of this contract shall not affect any other
provision, the contract shall be construed as if such invalid or unenforceable provisions were
omitted, and the parties may renegotiate the invalid or unenforceable provisions for sole purpose
of rectifying the invalidity or unenforceability.

31. MoniriCATION OF CONTRACT AND ENTIRE AGREEMENT. This contract constitutes the
entire contract between the City and Service Provider. 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.

32. CHOICE oF LAW AND VENUE. This contract shall be governed exclusively by the laws
of the State of New Hampshire and any litigation shall be brought in a court located in the State
of New Hampshire.

Information regarding the quality and maturity dates of fixed income securities is as
follows:

Average Average
Total Duration Rating
U.S. Treasury Obligations $ 14,949,928 4.83 Aaa
U.S. Government Agencies $ 10,914,022 3.08 Aaa
Corporate Bonds $ 5,249,591 7.29 Al

Foreign Currency Risk
Foreign currency risk is the risk that changes in foreign exchange rates will adversely affect
the fair value of an investment. The City does not have formal investment policies related

to foreign currency risk.

Fair Value

The City categorizes its fair value measurements within the fair value hierarchy established by
Governmental Accounting Standards Board Statement No. 72 Fair Value Measurement
and Application (GASB 72).

The hierarchy is based on the valuation inputs used to measure the fair value of the asset
and give the highest priority to unadjusted quoted prices in active markets for identical
assets or liabilities (level 1 measurements) and the lowest priority to unobservable inputs
(level 3 measurements). The hierarchy categorizes the inputs to valuation techniques used
for fair value measurement into three levels as follows:

¢ Level |] — inputs that reflect quoted prices (unadjusted) in active markets for identical
assets or liabilities that the fund has the ability to access at the measurement date.

e Level 2 — inputs other than quoted prices that are observable for an asset or liability
either directly or indirectly, including inputs in markets that are not considered to be
active. Because they must often be priced on the basis of transactions involving similar
but not identical securities or do not trade with sufficient frequency, certain directly held
securities are categorized as level 2.

e Level 3 — unobservable inputs based on the best information available, using
assumptions in determining the fair value of investments and derivative instruments.

In instances where inputs used to measure fair value fall into different levels in the fair
value hierarchy, fair value measurements in their entirety are categorized based on the
lowest level input that is significant to the valuation.

57

EXHIBIT B

Summary & Scope of Work

City of Nashua Police Department
Professional Services related to HVAC Study

Scope of

SMART will visit NPD site over syultiole days and take inventory and make an assessrnent of the
HVAC equipment, capacities, and useful life expectancy.

SMRT will prepare and provide written or electronic inventory report of HVAC equipment,
capacity, useful life expectancy and issues or concerns and make recommendations.

SMRT will provide a written or electronic cost estimate indicating the costs to purchase and
install all recommended items including any structural, electrical or plumbing implications (soft
costs including design will not be included),

The assessment will be strictly mechanical, electrical is not included.

SMRT will attend one onsite meeting after the repart nas been sent out to answer questions
about the report. Any comments received will be incorporated into a final report to be issued
shortly after the meeting.

EXHIBIT B

Summary & Scope of Work

City of Nashua Police Department
Professional Services related to HVAC Study

Summary & Scope of Work

i.

NM

SMRT will vist NPD site over multiple days and take inventory and rake an assessment of the
HVAC equipment, capacities, and useful life expectancy.

SMRT will prepare and provide written or electronic inventory report of HVAC equipment,
capacity, useful life expectancy and issues or concerns and make recommendations.

SMRT will provide a written or electronic cost estimate indicating the costs te purchase and
install all recommended iterns including any structural, electrical ar plumbing irnplications (soft
costs including design will not be included).

The assessment will be strictly mechanical, electrical is not included.

SMRT will attend one onsite meeting after the report has been sent out to answer questions
about the report. Any comments received will be incorporated into a final report to be issued
shortly after the meeting.