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To:

From:

Re:

A. Motion:

Attachments:

Discussion:

City of Nashua, Public Works Division

Board of Public Works Meeting Date: September 29, 2016

Nick Caggiano, Superintendent
Parks and Recreation Department

Skateboard Park Design Build Contract Agreement.

To approve the contract for design build services for the relocation of the current
skateboard park with Artisan Skateparks of Kitty Hawk, North Carolina for the
sum of $550,000. Funding will be through Department: 177 Parks and Recreation;
Fund: Trust; Activity: David Deane Skateboard Park.

Proposal and statement of qualifications.

The relocation of the skateboard park was approved by the Planning Board on
September 8, 2016. The next phase of the project is to design and build the
facility. The recommendation of the Division and the skateboard community is to
enter into an agreement with Artisan Skateparks. This firm has over 25 years of
experience in skateboard park design and construction throughout the United
States as well as in the Caribbean and Europe. All of the crew members are active
skateboarders.

The firm also has experience building parks in colder climates such as
Massachusetts, Illinois and Sweden. The selection of this vendor as a sole source
vendor is based on the firm’s ability to design skate parks that appeal to skaters of
all levels of ability as well as the artistic element that is involved in the design.
The Division and skate board community both recommend entering into this
agreement with the sole source vendor Artisan Skateparks of Kitty Hawk, North
Carolina.

CONTRACT FOR INDEPENDENT CONTRACTOR
DESIGN - BUILD

REPLACEMENT FOR THE DAVID DEANE SKATEBOARD PARK

A CONTRACT BETWEEN

THE CITY OF NASHUA, 229 MAIN STREET, NASHUA, NH 03061-2019
AND

ARTISANS SKATEPARKS
and its successors, transferees and assignees (together “Independent Contractor”)
NAME AND TITLE OF INDEPENDENT CONTRACTOR °°

4600 TAMARACK DRIVE, KITTY HAWK, NC, 27949
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:

This Agreement signed by the City of Nashua and the Independent Contractor;
- Exhibit A--General Conditions for Contracts;

Exhibit B--Scope of Services, Contract Time, Fee Schedule;

Exhibit C--Notice of Award;

Exhibit D--Payment and Performance Bonds;

Exhibit E--Noticed to Proceed;

Exhibit F--Change Order Form;

MD MB & be

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 Exhibit Band the terms of this Agreement, Exhibit A, a
written change order and/or fully executed City of Nashua Purchase Order, the terms of this Agreement,
Exhibit A, the written change order or the fully executed City of Nashua Purchase Order shall control
over the terms of Exhibit B.

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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 lump sum cost not to
exceed

Five Hundred Fifty Thousand and 00/00 Dollars ($ 550,000.00)
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

Attn: Accounts Payable

PO Box 2019

Nashua, NH 03061-2019

Atten: Division of Public Works Director, Lisa Fauteux

To facilitate the proper and timely payment of applications, the Cty 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:

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CITY OF NASHUA REPRESENTATIVE: REPRESENTATIVE:

Division of Public Works Director, Lisa Fauteux
9 Riverside Street
Nashua, NH 03062

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) Artisan Skateparks (signature)

James Donchess, Mayor
(Printed Name and Title) Se (Printed Name and Title)

Date Date

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EXHIBIT A
TABLE OF CONTENTS
GENERAL CONDITIONS

GENERAL PROVISIONS
INDEPENDENT CONTRACTOR STATUS
STANDARD OF CARE

CITY 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

GENERAL PROVISIONS

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.

The term “Work” means the construction and services required by the Contract Documents, and
include all other labor, materials, equipment and services provided by the Independent Contractor
to fulfill their obligations.

The intent of the Contract Documents is to include all items necessary for the proper execution
and completion of the Work by the Independent Contractor. The Contract Documents are
complementary, and what is required by one shall be as binding as if required by all.

In the case of a discrepancy, calculated dimensions will govern over scaled dimensions, Contract
Drawings will govern over Standard Specifications, and Technical Specifications will govern
over both Contract Drawings and Standard Specifications. In the case of a discrepancy between
the Agreement and other Contract Documents, the more specific or stringent obligation or
requirement to the benefit of the City of Nashua shall take precedence.

Except for permits and fees, which are the-responsibility of the Independent Contractor under the
Contract Documents, the City of Nashua shall obtain and pay for other necessary approvals,
easements, assessments and charges.

If the Independent Contractor fails to correct Work that is not in accordance with the Contract
Documents, the City of Nashua may direct the Independent Contractor in writing to stop the
Work until the correction is made.

If the Independent Contractor defaults or neglects to carry out the Work in accordance with the
Contract.Documents and fails within a sever (7) day period after receipt of written notice from
the City of Nashua to correct such default or neglect with diligence and promptness, the City of
Nashua may, without prejudice to other remedies, correct such deficiencies. In such case, a
Change Order shall be issued deducting the cost of correction from payments due the Independent
Contractor.

The City of Nashua reserves the right to perform construction or operations related to the project
with the City of Nashua’s own forces, and to award separate contracts in connection with other
portions of the project.

The Independent Contractor shali coordinate and cooperate with separate Independent
Contractor’s employed by the City of Nashua.

Costs caused by delays or by improperly timed activities or defective construction shall be borne
by the responsible party.

Execution of the Contract by the Independent Contractor is a representation that the Independent
Contractor has visited the site, become familiar with local conditions under which the Work is to
be performed and correlated personal observations with requirements of the Contract Documents.
The Independent Contractor shall carefully study and compare the Contract Documents with each
other and with information furnished by the City of Nashua. Before commencing activities, the
Independent Contractor shall: (1) take field measurements and verify field conditions; (2)

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carefully compare this and other information known to the Independent Contractor with the
Contract Documents; and (3) promptly report errors, inconsistencies or omissions discovered to
the City of Nashua.

Within ten (10) days of notification of award, and prior to commencement of work, the
Independent Contractor shall obtain and forward to City of Nashua a Performance Bond and a
Payment Bond representing 100% of the contract work

The Independent Contractor shall supervise and direct the Work, using the Independent
Contractor’s best skill and attention. The Independent Contractor shall be solely responsible for
and have control over construction means, methods, techniques, sequences and procedures, and
for coordinating all portions of the Work.

The Independent Contractor, as soon as practicable after award of the Contract, shall furnish in
writing to the City of Nashua the names of subcontractors: or suppliers for each portion of the
Work. The City of Nashua will promptly reply to the Independent Contractor in writing if, after
due investigation, he has reasonable objection to the spligntractors or suppliers listed.

Unless otherwise provided in the Contract Docurnts, the Independent Contractor shall provide
and pay for labor, materials, equipment, tools, utilities, transportation, and other facilities and
services necessary for proper execution and completion of the work.

The Independent Contractor shall deliver, handle, storé and install materials in accordance with
manufacturers’ instructions.

The Independent Contractor warrants ‘to theCity of Nashua that (1) materials and equipment
furnished under the contract will be new and of good quality unless otherwise required or
permitted by the Contract Documents; (2) the Work will be free from defects not inherent in the
quality required or permitted; and (3) the Work will conform to the requirements of the Contract
Documents.

The Independent Contractor shall pay sales, consumer, use and similar taxes that are legally
required when the Contract i is executed.

The Miirendai Contractor shall obtain and pay for the building permit and other permits and
governmental fees, licenses and inspections necessary for proper execution and completion of the
Work, if applicable. .

The Independent Contractor shall comply with and give notices required by agencies having
jurisdiction over the Work. If the Independent Contractor performs Work knowing it to be
contrary to laws, statutes, ordinances building codes, and rules and regulations without notice to
the City of Nashua, the Independent Contractor shall assume full responsibility for such Work
and shall bear the attributable costs. The Independent Contractor shall promptly notify the City of
Nashua in writing of any known inconsistencies in the Contract Documents with such
governmental laws, rules and regulations.

The Independent Contractor shail promptly review, approve in writing and submit Shop
Drawings, Product Data, Samples and similar submittals required by the Contract Documents.
Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents.

The Independent Contractor shall confine operations at the site to areas permitted by law,
ordinances, permits, the Contract Documents and the City of Nashua.

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The Independent Contractor shall be responsible for cutting, fitting or patching required
completing the Work or to make its parts fit together properly.

The Independent Contractor shall keep the premises and surrounding area free from accumulation
of debris and trash related to the Work.

Independent Contractor warrants and guarantees to City of Nashua, for one (1) year, upon
completion of work, that all Work will be in accordance with the Contract Documents and will
not be defective. Independent Contractor warranty and guarantee hereunder excludes defects or
damage caused by:

>» Abuse, modification, or improper maintenance or operation by persons other than
Independent Contractor, subcontractors, suppliers, or any other individual or entity for whom
Independent Contractor is responsible; or

> Normal wear and tear under normal usage.

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;

(8) 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.

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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.

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.

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 ef 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 prockes with any or all of the proposed change.

Except .as-provided in this fragt 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.

CITY 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 may require
action the City of Nashua 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.

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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 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.

8. TERMINATION OF CONTRACT

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. If the 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.

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.

Ne

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.

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

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