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not otherwise included in the Cost of the Work under Section 10.1.3.1. To the extent that the Owner elects to take
legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall,
as a condition of receiving the payments referred to in this Article 10, execute and deliver all such papers and take
all such steps, including the legal assignment of such subcontracts and other contractual rights of the Construction
Manager, as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the
Construction Manager under such subcontracts or purchase orders. All Subcontracts, purchase orders and rental
agreements entered into by the Construction Manager will contain provisions allowing for assignment to the Owner
as described above.

If the Owner accepts assignment of subcontracts, purchase orders or rental agreements as described above, the
Owner will reimburse or indemnify the Construction Manager for all costs arising under the subcontract, purchase
order or rental agreement, if those costs would have been reimbursable as Cost of the Work if the contract had not
been terminated. If the Owner chooses not to accept assignment of any subcontract, purchase order or rental
agreement that would have constituted a Cost of the Work had this agreement not been terminated, the Construction
Manager will terminate the subcontract, purchase order or rental agreement and the Owner will pay the Construction
Manager the costs necessarily incurred by the Construction Manager because of such termination.

§ 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price
Following execution of the Guaranteed Maximum Price Amendment and subject to the provisions of Section 10.2.1
and 10.2.2 below, the Contract may be terminated as provided in Article 14 of AIA Document A201—2007,

§ 10.2.1 If the Owner terminates the Contract after execution of the Guaranteed Maximum Price Amendment, the
amount payable to the Construction Manager pursuant to Sections 14.2 and 14.4 of A201—2007 shall not exceed the
amount the Construction Manager would otherwise have received pursuant to Sections 10.1.2 and 10.1.3 of this
Agreement.

§ 10.2.2 If the Construction Manager terminates the Contract after execution of the Guaranteed Maximum Price
Amendment, the amount payable to the Construction Manager under Section 14.1.3 of A201—2007 shall not exceed
the amount the Construction Manager would otherwise have received under Sections 10.1.2 and 10.1.3 above,
except that the Construction Manager’s Fee shall be calculated as if the Work had been fully completed by the
Construction Manager, utilizing as necessary a reasonable estimate of the Cost of the Work for Work not actually
completed.

§ 10.3 Suspension

The Work may be suspended by the Owner as provided in Article 14 of AIA Document A201—2007. In such case,
the Guaranteed Maximum Price and Contract Time shall be increased as provided in Section 14.3.2 of AIA
Document A201-2007, except that the term “profit” shall be understood to mean the Construction Manager’s Fee as
described in Sections 5.1 and 5.3.5 of this Agreement.

ARTICLE 11 MISCELLANEOUS PROVISIONS
§ 11.1 Terms in this Agreement shall have the same meaning as those in A201-2007.

§ 11.2 Ownership and Use of Documents
Section 1.5 of A201—2007 shall apply to both the Preconstruction and Construction Phases.

§ 11.3 Governing Law
Section 13.1 of A201-2007 shall apply to both the Preconstruction and Construction Phases.

§ 11.4 Assignment

The Owner and Construction Manager, respectively, bind themselves, their agents, successors, assigns and legal
representatives to this Agreement. Neither the Owner nor the Construction Manager shall assign this Agreement
without the written consent of the other, except that the Owner may assign this Agreement to a lender providing
financing for the Project if the lender agrees to assume the Owner’s rights and obligations under this Agreement.
Except as provided in Section 13.2.2 of A201—-2007, neither party to the Contract shall assign the Contract as a
whole without written consent of the other. If either party attempts to make such an assignment without such
consent, that party shall nevertheless remain legally responsible for all obligations under the Contract.

Page 15 of 16

§ 11.5 Other provisions:

« »

ARTICLE 12 SCOPE OF THE AGREEMENT

§ 12.1 This Agreement represents the entire and integrated agreement between the Owner and the Construction
Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement
may be amended only by written instrument signed by both Owner and Construction Manager.

§ 12.2 The following documents comprise the Agreement:

1

AIA Document A133~-2009, Standard Form of Agreement Between Owner and Construction
Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a
Guaranteed Maximum Price

ATA Document A201—2007, General Conditions of the Contract for Construction

AIA Document E201™-—2007, Digital Data Protocol Exhibit, if completed, or the following:

«»

ATA Document E202™-2008, Building Information Modeling Protocol Exhibit, if completed, or the
following:

«>»

Other documents:
(List other documents, if any, forming part of the Agreement.)

« List bid documents »( These will all be summarized on Attachment A once developed )

This Agreement is entered into as of the day and year first written above.

OWNER (Signature) - CONSTRUCTION MANAGER (Signature)
« James W. Donchess, Mayor a William E. Stevens, President =
(Printed name and title) (Printed name and title)

Page 16 of 16

PS OE,

Se,
s
ore
is

) THE CITY OF NASHUA “The Gate City"

Financial Services

Purchasing Department

January 10, 2019
Memo #19-114

TO: MAYOR DONCHESS
FINANCE COMMITTEE
SUBJECT: ARCHITECTURAL MANAGER SERVICES CONTRACT FOR 201 MAIN STREET —

PERFORMING ARTS CENTER (“PAC”) (VALUE: $TBD)
DEPARTMENT: 183 ECONOMIC DEVELOPMENT; FUND: BOND

Please see attached communication from Tim Cummings, Director of Economic Development dated
January 9, 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 Director of Economic Development and the Purchasing Department recommend approval of this
contract in an amount of $TBD to ICON Architecture Inc. of Boston, MA.

Respectfully,

Dan Kooken
Purchasing Manager

Cc: T Cummings — J Graziano

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

E\ THE CITY OF NASHUA “The Gate City’

Mice of Eeonomic Development

To: J. Donchess, Mayor
From: Tim Cummings, Economic Development Director
Ce:

Date: January 9, 2019

Re: Architectural Design Services Contract

Request
The Office Economic Development requests approval to contraet with ICON for design related services for

the creation of a Performing Arts Center ( “PAC’) at 201 Main Street in an amount to be determined later
based on the design.

Background

As you may be aware the city passed a bond for $15.5M for the purposes of creating a Performing Arts
Center (“PAC”) at 201 Main Street. Additionally, the City of Nashua put together a Steering Committee of
various stakeholders to help advise with the development of this project. At this time, the PAC Steering
Committee recommends we procure the services of ICON Architects alon g with their partner OTJ
Architecture for their design services. By way of background, an RFQ went out for Architectural and
Engineering Services this past summer and the city received approximately 11 proposals from qualified
respondents. The PAC Steering Committee decided to interview six (6) firms of which all six (6) accepted,
After reviewing the various proposals, interviewing various entities and doing a plethora of due diligence
the steering committee recommended to the Mayor and Board of Aldermen that ICON Architects along
(with their partner OTJ Architecture) services be procured. ICON is a well-respected New England
Architecture firm having project managed and designed many differing high valued projects in the North
East. OTS Architecture is a New York City/Mid-Atlantic architecture firm specializing in theater design.

Recommendation
The Office of Economic Development recommends approval of the contract to ICON,

Agreement between Owner and Architect

This AGREEMENT made as of the « » day of « » in the year « 2019 »
(In words, indicate day, month and year.)

BETWEEN the Architect’s client identified as the Owner:
(Name, legal status, address and other information)

« The City of Nashua »« »
«229 Main Street »
«Nashua, NH »

«»

and the Architect:
(Name, legal status, address and other information)

« ICON Architecture Inc. »« »
«101 Summer Street »
«Boston, MA »

(a eoee as aah

for the following Project:
(Name, location and detailed description)

«Performing Arts Center »
«201 Main Street » —
« Nashua, NH » |

The Owner and Architect agree as follows.

ARTICLE 1 INITIAL INFORMATION

§ 1.1 This Agreement is based on the Initial Information set forth in this Section 1.1.

(For each item in this section, insert the information or a statement such as “not applicable” or “unknown at time
of execution. ””)

§ 1.1.1 The Owner’s program for the Project:
(Insert the Owner’s program, identify documentation that establishes the Owner’s program, or state the manner in
which the program will be developed.)

« »

§ 1.1.2 The Project’s physical characteristics:

(Identify or describe pertinent information about the Project’s physical characteristics, such as size; location;
dimensions, geotechnical reports; site boundaries; topographic surveys, traffic and utility studies; availability of
public and private utilities and services, legal description of the site, etc.)

«& »

§ 1.1.3 The Owner’s budget for the Cost of the Work, as defined in Section 6.1:
(Provide total and, if known, a line item breakdown.)

« »

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§ 1.1.4 The Owner’s anticipated design and construction milestone dates:

§ 1.1.5 The Owner identifies the following representative in accordance with Section 5.3:

4

Design phase milestone dates, if any:
«<»

Construction commencement date:
«<»

Substantial Completion date or dates:
«»

Other milestone dates:

a»

(List name, address, and other contact information.)

« Director of Economic Development Tim Cummings »

«
«
«
«
«

»
»
»
»
»

§ 1.1.6 The Owner shall retain the following consultants and contractors:
(List name, legal status, address, and other contact information.)

A

Geotechnical Engineer:

«KE D>
«>»
« >
«»
«>»

Civil Engineer:

«We >»
« »
« »>
« >»
«a»

Other, if any:
(List any other consultants and contractors retained by the Owner.)

«

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§ 1.1.7 The Architect identifies the following representative in accordance with Section 2.3:
(List name, address, and other contact information.)

«K »
« »>
« »
a >
« »
« »

§ 1.1.8 The Architect shall retain the following consultants
Consultants retained under Basic Services:
A Structural Engineer:

« «>»
«»
« »
«»
«>»

.2. Mechanical Engineer:

« «Ke »
& »>
« »
« »
« »

3 Electrical Engineer:

K DEY
« >»
«& »
« »
« »

Consultants retained under Supplemental Services:
«»

§ 1.1.9 Other Initial Information on which the Agreement is based:

«>»

§ 1.2 The Owner and Architect may rely on the Initial Information. Both parties, however, recognize that the Initial
Information may materially change and, in that event, the Owner and the Architect shall appropriately adjust the
Architect’s services, schedule for the Architect’s services, and the Architect’s compensation. The Owner shall adjust
the Owner’s budget for the Cost of the Work and the Owner’s anticipated design and construction milestones, as
necessary, to accommodate material changes in the Initial Information.

§ 1.3 The parties shall agree upon protocols governing the transmission and use of Instruments of Service or any
other information or documentation in digital form. The parties will use ALA Document E203™-2013, Building

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Information Modeling and Digital Data Exhibit, to establish the protocols for the development, use, transmission,
and exchange of digital data.

§ 1.3.1 Any use of, or reliance on, all or a portion of a building information model without agreement to protocols
governing the use of, and reliance on, the information contained in the model and without having those protocols set
forth in AIA Document E203™ 2013, Building Information Modeling and Digital Data Exhibit, and the requisite
AIA Document G202™—2013, Project Building Information Modeling Protocol Form, shall be at the using or
relying party’s sole risk and without liability to the other party and its contractors or consultants, the authors of, or
contributors to, the building information model, and each of their agents and employees.

ARTICLE 2 ARCHITECT’S RESPONSIBILITIES

§ 2.1 The Architect shall provide professional services as set forth in this Agreement. The Architect represents that it
is properly licensed in the jurisdiction where the Project is located to provide the services required by this
Agreement, or shall cause such services to be performed by appropriately licensed design professionals.

§ 2.2 The Architect shall perform its services consistent with the professional skill and care ordinarily provided by
architects practicing in the same or similar locality under the same or similar circumstances. The Architect shall
perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of
the Project.

§ 2.3 The Architect shall identify a representative authorized to act on behalf of the Architect with respect to the
Project.

§ 2.4 Except with the Owner’s knowledge and consent, the Architect shall not engage in any activity, or accept any
employment, interest or contribution that would reasonably appear to compromise the Architect’s professional
judgment with respect to this Project.

§ 2.5 The Architect shall maintain the following insurance until termination of this Agreement.

Comprehensive or Commercial General Liability insurance which shall include contractual, XCU, products and
completed operations liability coverages. Bodily injury and property damage with combined single limits of not less
than $1,000,000 per occurrence; and if written on an aggregate basis, $2,000,000 aggregate limit — include per
project aggregate endorsement. The Owner must be named as an additional insured;

* Commercial Automobile Liability insurance endorsed for “any auto” with combined single limits of
liability of not less than $1,000,000 each occurrence. The Owner must be named as an additional insured;

# And Workers’ Compensation insurance in compliance with the State of New Hampshire statutes,
$100,000/$500,000/$ 100,000.

None of the requirements as to types and limits to be maintained by Architect are intended to and shall not in any
manner limit or qualify the liabilities and obligations assumed by Architect under this contract. The Owner shall not
maintain any insurance on behalf of Architect. Subcontractors are subject to the same insurance requirements as
Architect and it shall be the Architect’s responsibility to ensure compliance of this requirement.

The parties agree that Architect 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 Owner and Architect, and nothing in this
contract shall create any contractual relationship between the Owner and Architect’s consultants, sub consultants,
contractors, or subcontractors. The parties also agree that Architect is not the Owner’s employee and that there shall
be no:

(1) Withholding of income taxes by the Owner:

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performance of work terminated, abandoned, or suspended under the notice, assign to
the City of Nashua any orders or sub contracts specified in the notice, and revoke
agreements specified in the notice.

5. Notresume work after the effective date of a notice of termination unless and until receipt
of a written notice from the City of Nashua to resume performance.

In the event of a termination for cause, Professional Engineer shall receive all amounts due and not
previously paid to Professional Engineer for work satisfactorily completed in accordance with the
contract prior to the date of the notice, less all previous payments. No amount shall be allowed or
paid for anticipated profit on unperformed services or other unperformed work. Any such payment
may be adjusted to the extent of any additional costs occasioned to the City of Nashua by reasons
of Professional Engineer's failure. Professional Engineer shall not be relieved of liability to the City
of Nashua for damages sustained from the failure, and the City of Nashua may withhold any
payment to the Professional Engineer until such time as the exact amount of damages due to the
City of Nashua is determined. All claims for payment by the Professional Engineer must be
submitted to the City of Nashua within 30 days of the effective date of the notice of termination.

If after termination for the failure of Professional Engineer to adhere to any of 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, it és
determined that Professional Engineer had not so failed. the termination shall be deemed to have
been a termination at will. In that event, the City of Nashua shall, if necessary, make an adjustment
in the compensation paid to Professional Engineer such that Professional Engineer receives total
compensation in the same amount as it would have received in the event of a termination-at-will.

€. GENERAL PROVISIONS FOR TERMINATION Upon termination of the contract, the City of
Nashua may take over the work and prosecute it to completion by agreement with another party or
otherwise. In the event Professional Engineer shall cease conducting business, the City of Nashua
shall have the right to solicit applications for employment from any employee of the Professional
Engineer assigned to the performance of the contract.

Neither party shall be considered in default of the 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 Professional Engineer's principals, officers, employees. agents, subcontractors,
consultants, vendors, or suppliers are expressly recognized to be within Professional Engineer's
control.

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 between the City of Nashua Representative and a Professional Engineer Representative.
At all times, Professional Engineer shall carry on the work under this contract and maintain and
complete work in accordance with the requirements of the contract or determination or direction of
the City of Nashua. 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.

. NO DAMAGES FOR DELAY Apart from a written extension of time, no payment, compensation, or

adjustment of any kind shall be made to Professional Engineer for damages because of hindrances
or delays in the progress of the work from any cause, and Professional Engineer agrees to accept

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(2) Industrial insurance coverage provided by the Owner;

(3) Participation in group insurance plans which may be available to employees of the Owner;

(4) Participation or contributions by either the independent contractor or the Owner to the public
employee’s retirement system;

(5) Accumulation of vacation leave or sick leave provided by the Owner;

(6) Unemployment compensation coverage provided by the Owner.

" All deductibles and self-insured retentions shall be fully disclosed in the certificate(s) of insurance.

if aggregate limits of iess than $2,000,000 are imposed on bodily injury and property damage, Architect

must maintain umbrella liability insurance of at least $1,000,000. All aggregates must be fully disclosed on

the required certificate of insurance.

= The specified insurance requirements do not relieve Architect of its responsibilities or limit the amount of
its liability to the Owner or other persons, and Architect 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 Owner shall be called
upon to contribute to a loss.

§ 2.5.5 Employers’ Liability with policy limits not less than « » ($ « » ) each accident, « » ($ « ») each employee,
and « » ($ « ») policy limit.

§ 2.5.6 Professional Liability covering negligent acts, errors and omissions in the performance of professional
services with policy limits of not less than « $2,000,000 » per claim and $ 4,000,000) in the aggregate.

§ 2.5.7 The Architect shall provide certificates of insurance to the Owner that evidence compliance with the
requirements in this Section 2.5.

ARTICLE 3 SCOPE OF ARCHITECT’S BASIC SERVICES

§ 3.1 The Architect’s Basic Services consist of those described in this Article 3 and include usual and customary
structural, mechanical, and electrical engineering services. Services not set forth in this Article 3 are Supplemental
or Additional Services.

§ 3.1.1 The Architect shall manage the Architect’s services, research applicable design criteria, attend Project
meetings, communicate with members of the Project team, and report progress to the Owner.

§ 3.1.2 The Architect shall coordinate its services with those services provided by the Owner and the Owner’s
consultants. The Architect shall be entitled to rely on, and shall not be responsible for, the accuracy, completeness,
and timeliness of, services and information furnished by the Owner and the Owner’s consultants. The Architect shall
provide prompt written notice to the Owner if the Architect becomes aware of any error, omission, or inconsistency
in such services or information.

§ 3.1.3 As soon as practicable after the date of this Agreement, the Architect shall submit for the Owner’s approval a
schedule for the performance of the Architect’s services. The schedule initially shall include anticipated dates for the
commencement of construction and for Substantial Completion of the Work as set forth in the Initial Information.
The schedule shal! include allowances for periods of time required for the Owner’s review, for the performance of
the Owner’s consultants, and for approval of submissions by authorities having jurisdiction over the Project. Once
approved by the Owner, time limits established by the schedule shall not, except for reasonable cause, be exceeded
by the Architect or Owner. With the Owner’s approval, the Architect shall adjust the schedule, if necessary, as the

Project proceeds until the commencement of construction.

§ 3.1.4 The Architect shall not be responsible for an Owner’s directive or substitution, or for the Owner’s acceptance
of non-conforming Work, made or given without the Architect’s written approval.

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