Search

amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Construction
Manager shall make provisions so that they can be obtained.

§ 6.9.2 Amounts that accrue to the Owner in accordance with the provisions of Section 6.9.1 shall be credited to the
Owner as a deduction from the Cost of the Work.

§ 6.10 Related Party Transactions

§ 6.10.1 For purposes of Section 6.10, the term “related party” shall mean a parent, subsidiary, affiliate or other
entity having common ownership or management with the Construction Manager; any entity in which any
stockholder in, or management employee of, the Construction Manager owns any interest in excess of ten percent in
the aggregate; or any person or entity which has the right to control the business or affairs of the Construction
Manager, The term “related party” includes any member of the immediate family of any person identified above.

§ 6.10.2 If any of the costs to be reimbursed arise from a transaction between the Construction Manager and a related
party, the Construction Manager shall notify the Owner of the specific nature of the contemplated transaction,
including the identity of the related party and the anticipated cost to be incurred, before any such transaction is
consummated or cost incurred. If the Owner, after such notification, authorizes the proposed transaction, then the
cost incurred shall be included as a cost to be reimbursed, and the Construction Manager shall procure the Work,
equipment, goods or service from the related party, as a Subcontractor, according to the terms of Sections 2.3.2.1,
2.3.2.2 and 2.3.2.3, If the Owner fails to authorize the transaction, the Construction Manager shall procure the Work,
equipment, goods or service from some person or entity other than a related party according to the terms of Sections
2.3.2.1, 2.3.2.2 and 2.3.2.3.

§ 6.11 Accounting Records

The Construction Manager shall keep full and detailed records and accounts related to the cost of the Work and
exercise such controls as may be necessary for proper financial management under this Contract and to substantiate
all costs incurred. The accounting and control systems shall be satisfactory to the Owner. The Owner and the
Owner’s auditors shall, during regular business hours and upon reasonable notice, be afforded access to, and shall be
permitted to audit and copy, the Construction Manager’s records and accounts, including complete documentation
supporting accounting entries, books, correspondence, instructions, drawings, receipts, subcontracts, Subcontractor’s
proposals, purchase orders, vouchers, memoranda and other data relating to this Contract. The Construction
Manager shall preserve these records for a period of three years after final payment, or for such longer period as may
be required by law.

ARTICLE 7 PAYMENTS FOR CONSTRUCTION PHASE SERVICES

§ 7.1 Progress Payments

§ 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager and
Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the
Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents.

§ 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of
the month, or as follows:

Qiao aes

§ 7.1.3 Provided that an Application for Payment is received by the Architect not later than the «25th » day of a
month, the Owner shall make payment of the certified amount to the Construction Manager not later than the «25th
» day of the «following » month. If an Application for Payment is received by the Architect after the application
date fixed above, payment shall be made by the Owner not later than «thirty » ( «30 » ) days after the Architect
receives the Application for Payment.

(Federal, state or local laws may require payment within a certain period of time.)

§ 7.1.4 With each Application for Payment, the Construction Manager shall submit payrolls, petty cash accounts,
receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner or
Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost
of the Work equal or exceed progress payments already received by the Construction Manager, less that portion of

Page 11 of 16

those payments attributable to the Construction Manager’s Fee, plus payrolls for the period covered by the present
Application for Payment.

§ 7.1.5 Each Application for Payment shall be based on the most recent schedule of values submitted by the
Construction Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire
Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager’s Fee
shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by
such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the
Architect, shall be used as a basis for reviewing the Construction Manager’s Applications for Payment.

§ 7.1.6 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end
of the period covered by the Application for Payment. The percentage of completion shall be the lesser of (1) the
percentage of that portion of the Work which has actually been completed, or (2) the percentage obtained by
dividing (a) the expense that has actually been incurred by the Construction Manager on account of that portion of
the Work for which the Construction Manager has made or intends to make actual payment prior to the next
Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in
the schedule of values.

§ 7.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be
computed as follows:

‘1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as
determined by multiplying the percentage of completion of each portion of the Work by the share of
the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values.
Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute
shall be included as provided in Section 7.3.9 of ALA Document A201—2007;

2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment
delivered and suitably stored at the site for subsequent incorporation in the Work, or if approved in
advance by the Owner, suitably stored off the site at a location agreed upon in writing;

3 Add the Construction Manager’s Fee, less retainage of «five _» percent («5 » %). The Construction
Manager’s Fee shall be computed upon the Cost of the Work at the rate stated in Section 5.1 or, if the
Construction Manager’s Fee is stated as a fixed sum in that Section, shall be an amount that bears the
same ratio to that fixed-sum fee as the Cost of the Work bears to a reasonable estimate of the
probable Cost of the Work upon its completion;

4 Subtract retainage of «five » percent («5 » %) from that portion of the Work that the Construction
Manager self-performs;

5 Subtract the aggregate of previous payments made by the Owner;

6 Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by
Section 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently
discovered by the Owner’s auditors in such documentation; and

Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment
as provided in Section 9.5 of AIA Document A20i—2007.

§ 7.1.8 The Owner and Construction Manager shall agree upon (1) a mutually acceptable procedure for review and
approval of payments to Subcontractors and (2) the percentage of retainage held on Subcontracts, and the
Construction Manager shall execute subcontracts in accordance with those agreements.

§ 7.1.9 Except with the Owner’s prior approval, the Construction Manager shall not make advance payments to
suppliers for materials or equipment which have not been delivered and stored at the site.

§ 7.1.10 In taking action on the Construction Manager’s Applications for Payment, the Architect shall be entitled to
rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be
deemed to represent that the Architect has made a detailed examination, audit or arithmetic verification of the
documentation submitted in accordance with Section 7.1.4 or other supporting data; that the Architect has made
exhaustive or continuous on-site inspections; or that the Architect has made examinations to ascertain how or for
what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such

Page 12 of 16

examinations, audits and verifications, if required by the Owner, will be performed by the Owner’s auditors acting
in the sole interest of the Owner.

§ 7.2 Final Payment
§ 7.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the
Construction Manager when
1 the Construction Manager has fully performed the Contract except for the Construction Manager’s
responsibility to correct Work as provided in Section 12.2.2 of AIA Document A201—2007, and to
satisfy other requirements, if any, which extend beyond final payment;
.2 the Construction Manager has submitted a final accounting for the Cost of the Work and a final
Application for Payment; and
.3 a final Certificate for Payment has been issued by the Architect.

The Owner’s final payment to the Construction Manager shall be made no later than 30 days after the issuance of
the Architect’s final Certificate for Payment, or as follows:

« »

§ 7.2.2 The Owner’s auditors will review and report in writing on the Construction Manager’s final accounting
within 30 days after delivery of the final accounting to the Architect by the Construction Manager. Based upon such
Cost of the Work as the Owner’s auditors report to be substantiated by the Construction Manager’s final accounting,
and provided the other conditions of Section 7.2.1 have been met, the Architect will, within seven days after receipt
of the written report of the Owner’s auditors, either issue to the Owner a final Certificate for Payment with a copy to
the Construction Manager, or notify the Construction Manager and Owner in writing of the Architect’s reasons for
withholding a certificate as provided in Section 9.5.1 of the AIA Document A201-2007. The time periods stated in
this Section supersede those stated in Section 9.4.1 of the AIA Document A201—2007. The Architect is not
responsible for verifying the accuracy of the Construction Manager’s final accounting.

§ 7.2.3 If the Owner’s auditors report the Cost of the Work as substantiated by the Construction Manager’s final
accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to
request mediation of the disputed amount without seeking an initial decision pursuant to Section 15.2 of A201—
2007, A request for mediation shall be made by the Construction Manager within 30 days after the Construction
Manager’s receipt of a copy of the Architect’s final Certificate for Payment. Failure to request mediation within this
30-day period shall result in the substantiated amount reported by the Owner’s auditors becoming binding on the
Construction Manager. Pending a final resolution of the disputed amount, the Owner shall pay the Construction
Manager the amount certified in the Architect’s final Certificate for Payment.

§ 7.2.4 If, subsequent to final payment and at the Owner’s request, the Construction Manager incurs costs described
in Section 6.1.1 and not excluded by Section 6.8 to correct defective or nonconforming Work, the Owner shall
reimburse the Construction Manager such costs and the Construction Manager’s Fee applicable thereto on the same
basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price.
If the Construction Manager has participated in savings as provided in Section 5.2.1, the amount of such savings
shall be recalculated and appropriate credit given to the Owner in determining the net amount to be paid by the
Owner to the Construction Manager.

ARTICLE 8 INSURANCE AND BONDS

For all phases of the Project, the Construction Manager shall purchase and maintain insurance, and the Construction
Manager shall provide bonds as set forth in Article 11 of AIA Document A201-2007.

(State bonding requirements, if any, and limits of liability for insurance required in Article I] of AIA Document
A201-2007,)

Type of Insurance or Bond Limit of Liability or Bond Amount ($0.00)

Performance & Payment Bonds. _~ 100% of construction GMP

Automobile Liability = = 9 = $ 1,000,000.00 each accident

Commercial General Liability $ 1,000,000.00 each occurrence, $ 2,000 000. 00 Aggregate
General Liability Umbrella $ 10,000,000.00

Page 13 of 16

Property Insurance shall be by owner $ 1,000.00 deductible per occurrence

ARTICLE9 DISPUTE RESOLUTION

§ 9.1 Any Claim between the Owner and Construction Manager shall be resolved in accordance with the provisions
set forth in this Article 9 and Article 15 of A201-2007. However, for Claims arising from or relating to the
Construction Manager’s Preconstruction Phase services, no decision by the Initial Decision Maker shall be required
as a condition precedent to mediation or binding dispute resolution, and Section 9.3 of this Agreement shall not

apply.

§ 9.2 For any Claim subject to, but not resolved by mediation pursuant to Section 15.3 of ALA Document A201-
2007, the method of binding dispute resolution shall be as follows:

(Check the appropriate box. If the Owner and Construction Manager do not select a method of binding dispute
resolution below, or do not subsequently agree in writing to a binding dispute resolution method other than
litigation, Claims will be resolved by litigation in a court of competent jurisdiction.)

[ «x » ] Litigation in New Hampshire Superior Court Hillsborough South

§ 9.3 Initial Decision Maker

The Architect will serve as the Initial Decision Maker pursuant to Section 15.2 of ALA Document A201-2007 for
Claims arising from or relating to the Construction Manager’s Construction Phase services, unless the parties
appoint below another individual, not a party to the Agreement, to serve as the Initial Decision Maker.

(if the parties mutually agree, insert the name, address and other contact information of the Initial Decision Maker,
if other than the Architect.)

«>
«»
« »
« »

ARTICLE 10 TERMINATION OR SUSPENSION

§ 10.1 Termination Prior to Establishment of the Guaranteed Maximum Price

§ 10.1.1 Prior to the execution of the Guaranteed Maximum Price Amendment, the Owner may terminate this
Agreement upon not less than seven days’ written notice to the Construction Manager for the Owner’s convenience
and without cause, and the Construction Manager may terminate this Agreement, upon not less than seven days’
written notice to the Owner, for the reasons set forth in Section 14.1.1 of A201—2007.

§ 10.1.2 In the event of termination of this Agreement pursuant to Section 10.1.1, the Construction Manager shall be
equitably compensated for Preconstruction Phase services performed prior to receipt of a notice of termination. In no
event shall the Construction Manager’s compensation under this Section exceed the compensation set forth in
Section 4.1.

§ 10.1.3 If the Owner terminates the Contract pursuant to Section 10.1.1 after the commencement of the Construction
Phase but prior to the execution of the Guaranteed Maximum Price Amendment, the Owner shall pay to the
Construction Manager an amount calculated as follows, which amount shall be in addition to any compensation paid
to the Construction Manager under Section 10.1.2:
1 Take the Cost of the Work incurred by the Construction Manager to the date of termination;
2 Add the Construction Manager’s Fee computed upon the Cost of the Work to the date of termination
at the rate stated in Section 5.1 or, if the Construction Manager’s Fee is stated as a fixed sum in that
Section, an amount that bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time
of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion;
and
3 Subtract the aggregate of previous payments made by the Owner for Construction Phase services.

The Owner shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of
the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is

Page 14 of 16

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.)

« »

Error! Unknown document property name. (1098199393)

§ 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.)

«

Error! Unknown decument property name.

(2098199393)