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26. Successors. This Contract shall inure to the benefit of and shall be
binding upon the parties to this Contract and their respective heirs, successors in interest,
and assigns. This Contract may only be assigned upon written approval and agreement of
the parties, which approval will not be unreasonably withheld. Any purported assignment
of this Contract without the prior written approval of all parties shall be null and void.

27. Governing Law. The parties acknowledge that the Contract Documents
have been negotiated and entered into in the State of New Hampshire, Hillsborough
County. The parties agree that the Contract Documents shall be governed by, interpreted.
under, and construed and enforced in accordance with the laws of the State of New
Hampshire. Venue for any action or proceeding relating to or arising out of the Contract
Documents shall be in the State of New Hampshire Superior Court Hillsborough County
South.

28. No Third Party Beneficiary Rights. This Contract is entered into for the
sole benefit of City and Seller. No other parties are intended to be direct or incidental
beneficiaries of this Contract and no third party shall have any right in, under or to this
Contract.

29. No Joint Venture or Other Relationship Created. The relationship
between City and Seller is that solely of a seller and a buyer and no joint venture,
partnership or other relationship is created or implied by the Contract Documents.

30. Fiscal Contingency. All payments under this Contract are contingent upon
the availability to 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 Seller with a right of payment over
any other entity. Any funds obligated by the City under this Contract that are not paid to
Seller shall automatically revert to the City’s discretionary control upon the completion,
termination, or cancellation of the Contract. The City shall not have any obligation to re-
award or to provide, in any manner, the unexpended funds to Seller, except for those
payments which are owed to the Seller due to amounts incurred by the Seller up to and
including the date it is determined by the City that the necessary funds are not available
(the “Lack of Funding Date”). Operator shall have no claim of any sort to the unexpended
funds following the Lack of Funding Date.

31. 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. Unless otherwise directed by the
City, at all times Seller shall continue performance under the Contract Documents while

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matters in dispute are being resolved. 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.

Should either party to the Contract suffer injury or damage to person or property because of
any act or omission of the party or of any of its employees, agents or others for whose acts it
is legally liable, a claim for damages therefore shall be made in writing to such other party
as soon as practicable after the first observance of such injury or damage.

Duties and obligations imposed by the Contract Documents and the rights and remedies
available thereunder shall be in addition to and not a limitation of any duties, obligations,
rights and remedies otherwise imposed or available by law.

32. Correction of Work. The Seller shall promptly correct work rejected by the
City as failing to conform to the requirements of the Contract Documents. The Seller shall
bear the cost of correcting such rejected work. In addition to the Seller’s other obligations
including warranties under the Contract, the Seller shall, for a period of one year after final
acceptance, correct work not conforming to the requirements of the Contract Documents.
If the Seller fails to correct nonconforming work within a reasonable time, the City may
correct it and the Seller shall reimburse the City for the cost of the correction.

33, Ownership of Documents. The City and FTA will become owners of all
documents prepared by the Seller upon payment for same by City, except any documents
which may be protected by patent, lease or other written documents which provides proof of
ownership.

34. No Federal Government Obligation to Third Parties.

(a) The City and the Seller acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be subject to any
obligations or liabilities to the C, the Seller, or any other party (whether or not a party to
that contract) pertaining to any matter resulting from the underlying contract.

(b) The Seller agrees to include the above clause in each subcontract financed in whole
or in part with Federal assistance provided by FTA. It is further agreed that the clause shall
not be modified, except to identify the subcontractor who will be subject to its provisions.
incorporate FTA Terms

35. Program Fraud and False or Fraudulent Statements or Related Acts.

(a) The Seller acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C.§ 3801 et seq. and U.S. DOT regulations, "Program

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Fraud Civil Remedies,” 49 C.F.R. Part 31, apply to its actions pertaining to this Project.
Upon execution of the underlying contract, the Seller certifies or affirms the truthfulness
and accuracy of any statement it has made, it makes, it may make, or causes to be made,
pertaining to the underlying contract or the FTA assisted project for which this contract
work is being performed. In addition to other penalties that may be applicable, the Seller
further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent
claim, statement, submission, or certification, the Federal Government reserves the right to
impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Seller to the
extent the Federal Government deems appropriate.

(b) The Seller also acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in part
with Federal assistance originally awarded by FTA under the authority of 49 U.S.C.§ 5307,
the Government reserves the right to impose the penalties of 18 U.S.C.§ 1001 and 49
U.S.C.§ 5307(n)(1) on the Seller, to the extent the Federal Government deems appropriate.

(c) The Seller agrees to include the above two clauses in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the
clauses shall not be modified, except to identify the subcontractor who will be subject to
the provisions.

36. Records.

(a) Retention. The Seller will retain, and will require its subcontractors of all tiers
to retain, complete and readily accessible records related in whole or in part to the
contract, including, but not limited to, data, documents, reports, statistics, sub-
agreements, leases, subcontracts, arrangements, other third party agreements of any type,
and supporting materials related to those records.

(b) Retention Period. The Seller agrees to comply with the record retention
requirements in accordance with 2 C.F.R. § 200.333. The Seller shall maintain all
books, records, accounts and reports required under this contract for a period of at not
less than three (3) years after the date of termination or expiration of this contract,
except in the event of a dispute, or litigation or settlement of claims arising from
the performance of this contract, in which case records shall be maintained until the
disposition of all such dispute, litigation, appeals, claims or exceptions related
thereto.

(c) Where the City is not a State but a local government and is the FTA Recipient or a
subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(4), the Seller agrees
to provide the City, the FTA Administrator, the Comptroller General of the United States
or any of their authorized representatives sufficient access to any books, documents, papers
and records of the Seller which relate to this contract for the purposes of inspection,
making audits, examinations, excerpts and transcriptions as reasonably may be required.
Seller also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his
or her authorized representatives including any PMO Seller access to Seller’s records and
construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1,
which is receiving federal financial assistance through the programs described at 49 U.S.C.
5307, 5309 or 5311.

The Seller agrees to permit any of the foregoing parties to reproduce by any means
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whatsoever or to copy excerpts and transcriptions as reasonably needed.

(d) Access to the Sites of Performance. The Seller agrees to permit the City, the
FTA Administrator, the Comptroller General of the United States or any of their
authorized representatives and contractors access to the sites of performance under this
contract as reasonably may be required.

37. Civil Rights.

(a) Title VI of the Civil Rights Act of 1964
The Seller agrees to comply with all requirements of Title VI of the Civil Rights Act
of 1964, 42 U.S.C. § 2000d section 303 of the Age Discrimination Act of 1975, 42
U.S.C. §6102, section 202 of the Americans with Disabilities Act of 1990, § 12132, and
Federal transit law at 49 U.S.C. § 5332, all as amended as well as USDOT regulations,
"Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation", 49 CFR Part 21. In addition, the Seller agrees to comply with
applicable Federal implementing regulations and other implementing requirements FTA
may issue.
(b) Equal Employment Opportunity
The Seller will not discriminate against any employee or applicant for employment
because of race, color, creed, sex, disability, age, or national origin. The Seller agrees to
take affirmative action to ensure that applicants are employed, and that employees are
treated during employment, without regard to their race, color, creed, sex, disability, age,
or national origin. Such action shall include, but not be 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. The Seller shall insert the foregoing provision
(modified only to show the particular contractual relationship) in all its third party
contracts, except contracts for standard commercial supplies or raw materials and
construction contracts, and shall require all such third party contractors to insert a similar
provision in all subcontracts, except contracts for standard commercial supplies or raw
materials.
(c)Access Requirements for Individuals with Disabilities
The Seller shall comply with 49 USC 5301(d), stating Federal policy that the elderly
and persons with disabilities have the same rights as other persons to use mass
transportation services and facilities and that special efforts shall be made in planning and
designing those services and facilities to implement that policy. The Seller shall also
comply with all applicable requirements of Sec. 504 of the Rehabilitation Act (1973), as
amended, 29 USC 794, which prohibits discrimination on the basis of handicaps, and the
Americans with Disabilities Act of 1990 (ADA), as amended, 42 USC 12101 et seq.,
which requires that accessible facilities and services be made available to persons with
disabilities, including any regulations and subsequent amendments.
(d) Inclusion
The Seller agrees to include the requirements of subsections (a) — (c) in each
subcontract financed in whole or in part with Federal assistance provided by FTA,
modified only if necessary to identify the affected parties.

(e)Disadvantaged Business Enterprise (DBE)
il

1. This Contract is subject to the requirements of Title 49, Code of Federal
Regulations, Part 26, Participation by Disadvantaged Business Enterprises in
Department of Transportation Financial Assistance Programs. The national goal for
participation of Disadvantaged Business Enterprises (DBE) is 10%. Nashua Transit's
overall goal for DBE participation is 2.0%. A separate contract goal has not been
established for this procurement.

2. The Seller shall not discriminate on the basis of race, color, national
origin, or sex in the performance of this contract. The Seller shall carry out applicable
requirements of 49 CFR Part 26 in the award and administration of this DOT-assisted
contract. Failure by the Seller to carry out these requirements is a material breach of this
contract, which may result in the termination of this contract or such other remedy, as
the City deems appropriate. Each subcontract the Seller signs with a subcontractor must
include the assurance in this paragraph (see 49 CFR 26.13(b)).

3. The Seller will be required to report its DBE participation obtained
through race-neutral means throughout the period of performance.
4. The Seller is required to pay its subcontractors performing work related to

this contract for satisfactory performance of that work no later than 30 days after the
Seller’s receipt of payment for that work from the City.

5. The Seller must promptly notify the City whenever a DBE subcontractor
performing work related to this contract is terminated or fails to complete its work, and
must make good faith efforts to engage another DBE subcontractor to perform at least
the same amount of work. The Seller may not terminate any DBE subcontractor and
perform that work through its own forces or those of an affiliate without prior written
consent of the City.

Failure of the Seller to comply with this section or to include it in any subcontract of
any tier will constitute a breach of contract and, after notification to the DOT, may result
in termination of the Contract by the City or such remedy as the City deems appropriate.

38. Incorporation of Federal Transit Administration (FTA) Terms. The
preceding provisions include, in part, certain Standard Terms & Conditions required
by USDOT, whether or not expressly stated in the preceding contract provisions. All
USDOT required contractual provisions, as stated in FTA Circular 4220.1F, are hereby
incorporated by reference. Anything to the contrary herein notwithstanding, all FTA
mandated terms shall be deemed to control in the event of a conflict with other
provisions contained in this contract. The Seller shall not perform any act, fail to
perform any act, or refuse to comply with any request that would cause the City to be
in violation of FTA terms and conditions.

39, Environmental Resource Conservation and Energy Conservation.

(a) Energy Conservation.
Seller shall comply with mandatory standards and policies relating to energy

efficiency that are contained in the New Hampshire energy conservation plan issued in
compliance with the Energy Policy and Conservation Act, 42 U.S.C. § 6321 et seq.
(b) Clean Air.

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1. Seller shall comply with all applicable standards, orders or regulations
pursuant to Section 306 of the Clean Air Act, as amended, 42 U.S.C. § 7606, and other
requirements of the Clean Air Act, as amended, 42 U.S.C. §§ 7401 — 7671q. Seller shall
report each violation to the City and understands and agrees that the City will, in turn,
report each violation as required to FTA and the appropriate EPA Regional Office.

2. Seller shall include these requirements in each subcontract exceeding
$100,000 financed in whole or in part with FTA assistance.

(c) Clean Water

1. Seller shall comply with all applicable standards, orders or regulations
issued pursuant to Section 508 of the Clean Water Act, as amended, 33 U.S.C. § 1368, and
other requirements of the Clean Water Act, as amended, 33 U.S.C. §§ 1251 — 1377. Seller
shall report each violation to the City and understands and agrees that the City shall, in
turn, report each violation as required to FTA and the appropriate EPA Regional Office.

2. Seller shall include these requirements in each subcontract exceeding
$100,000 financed in whole or in part with FTA assistance.

40. Debarment and Suspension.

(a) The Seller agrees to comply with the requirements of Executive Order Nos. 12549
and 12689, “Debarment and Suspension,” 31 U.S.C. Section 6101 note; and USDOT
regulations on Debarment and Suspension and 49 CFR Part 29.

(b) Unless otherwise permitted, the Seller agrees to refrain from awarding any third-
party contract of any amount to or entering into any subcontract of any amount with a party
included in the “U.S. General Services Administration’s (U.S. GSA) List of Parties
Excluded from Federal procurement and Non-procurement Program,” implementing
Executive Order Nos. 12549 and 12689, “Debarment and Suspension” and 49 CFR Part 29.
The list also include the names of parties debarred, suspended, or otherwise excluded by
agencies, and contractors declared ineligible for contract award under statutory or
regulatory authority other than Executive Order Nos. 12546 and 12689.

(c) Before entering into any subcontracts with any subcontractor, the Seller agrees to
obtain a debarment and suspension certification from each prospective recipient containing
information about the debarment and suspension status and other specific information of
that awarding agency and its “principals,” as defined at 49 CFR Part 29.

(d} Before entering into any third-party contract exceeding $25,000.00, the Seller
agrees to obtain a debarment and suspension certification from each third-party contractor
containing information about the debarment and suspension status of that third-party
contractor and its “principals,” as defined at 49 CFR 29.105(p). The Seller also agrees to
require each third party contractor to refrain from awarding any third-party subcontract of
any amount, at any tier, to a debarred or suspended subcontractor, and to obtain a similar
certification for any third-party subcontractor, at any tier, seeking a contract exceeding
$25,000.00.

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Al. Buy America Requirements (Rolling Stock).

Seller agrees to comply with 49 U.S.C. 5323G) and 49 C.F.R. Part 661, which
provide that Federal funds may not be obligated unless steel, iron, and manufactured
products used in FTA- funded projects are produced in the United States, unless a waiver
has been granted by FTA or the product is subject to a general waiver. General waivers are
listed in 49 C.F.R. 661.7, separate requirements for rolling stock are set out at 49 U.S.C.
5323(j)(2)(C) and 49 C.F.R. 661.11. Rolling stock must be assembled in the United States
and have at least a 65% percent domestic content for all rolling stock delivered through FY
19. In FY 20 and beyond, rolling stock must be assembled in the United States and have at
least a 70% percent domestic content.

42. Cargo Preference.
For contracts involving equipment, materials or commodities which may be transported by

ocean vessels. These requirements do not apply to micro-purchases ($3,500 or less, except
for construction contracts over $2,000).

Seller shall: a. use privately owned US-Flag commercial vessels to ship at least 50% of
the gross tonnage (computed separately for dry bulk carriers, dry cargo liners and tankers)
involved, whenever shipping any equipment, material or commodities pursuant to the
underlying contract to the extent such vessels are available at fair and reasonable rates for
US flag commercial vessels; b. furnish within 20 working days following the loading date
of shipments originating within the US or within 30 working days following the loading
date of shipments originating outside the US, a legible copy of a rated, "on-board"
commercial bill-of-lading in English for each shipment of cargo described herein to the
Division of National Cargo, Office of Market Development, Maritime Administration,
Washington, DC 20590 and to the recipient (through Seller in the case of a subcontractor's
bill-of-lading.); and c. include these requirements in all subcontracts issued pursuant to this
contract when the subcontract involves the transport of equipment, material or
commodities by ocean vessel.

43. Fly America Requirements.
For contracts involving transportation of persons or property, by air between the U.S.
and/or places outside the U.S. These requirements do not apply to micro-purchases ($3,500
or less, except for construction contracts over $2,000).

Seller shall comply with 49 USC 40118 (the “Fly America” Act) in accordance with
General Services Administration regulations 41 CFR 301-10, stating that recipients and
subrecipients of Federal funds and their contractors are required to use US Flag air carriers
for US Government-financed international air travel and transportation of their personal
effects or property, to the extent such service is available, unless travel by foreign air
carrier is a matter of necessity, as defined by the Fly America Act. Seiler shali submit, if a
foreign air carrier was used, an appropriate certification or memorandum adequately
explaining why service by a US flag air carrier was not available or why it was necessary
to use a foreign air carrier and shall, in any event, provide a certificate of compliance with
the Fly America requirements. Seller shall include the .requirements of this section in all
subcontracts that may involve international air transportation.

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44. Contract Work Hours and Safety Standards Act.

(a) Overtime requirements — Neither the Seller or any subcontractors contracting for
any part of the contract work which may require or involve the employment of laborers or
mechanics shall require or permit any such laborer or mechanic in any workweek in which
he or she is employed on such work to work in excess of 40 hours in such workweek unless
such laborer or mechanic receives compensation at a rate not less than one and one-half
times the basic rate of pay for all hours worked in excess of 40 hours in such workweek.

(b) Violation; liability for unpaid wages; liquidated damages - In the event of any
violation of the clause set forth in para. (1) of this section, Seller and any subcontractor
responsible therefore shall be liable for the unpaid wages. In addition, Seller and such
subcontractor shall be liable for liquidated damages. Such liquidated damages shall be
computed with respect to each individual laborer or mechanic, including watchmen and
guards, employed in violation of the clause set forth in para. (1) of this section, in the sum
of $10 for each calendar day on which such individual was required or permitted to work in
excess of the standard workweek of 40 hours without payment of the overtime wages
required by the clause set forth in para. (1) of this section.

(c) Withholding for unpaid wages and liquidated damages - the City shall upon its own
action or upon written request of USDOL withhold or cause to be withheld, from any
moneys payable on account of work performed by Seller or subcontractor under any such
contract or any other Federal contract with the same prime contractor, or any other
federally assisted contract subject to the Contract Work Hours & Safety Standards Act,
which is held by the same prime contractor, such sums as may be determined to be
necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and
liquidated damages as provided in the clause set forth in para. (2) of this section.

(4) Subcontracts - Seller or subcontractor shall insert in any subcontracts the clauses set
forth in this section and also a clause requiring the subcontractors to include these clauses
in any lower tier subcontracts. Prime contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth in this section.

45. Force Majeure. The Seller shall not be liable to the City for any failure,
delay or interruption of service or for any failure or delay in the performance of any
obligation under this Contract due to acts of God, governmental restrictions, enemy action,
civil commotion, unavoidable casualty, unavailability of fuel or parts, strikes, labor unrest
or other acts beyond the reasonable control of the Seller. The Seller shall resume service
upon removal or cessation of the cause of delay or interruption.

46. Privacy.
The following requirements apply to the Seller and its employees that administer any

system of records on behalf of the Federal Government under any contract:

(a) The Seller agrees to comply with, and assures the compliance of its employees
with, the information restrictions and other applicable requirements of the Privacy Act of
1974, 5 U.S.C.§ 552a. Among other things, the Seller agrees to obtain the express
consent of the Federal Government before the SELLER or its employees operate a
system of records on behalf of the Federal Government. The Seller understands that the

15

requirements of the Privacy Act, including the civil and criminal penalties for violation
of that Act, apply to those individuals involved, and that failure to comply with the
terms of the Privacy Act may result in termination of the underlying contract.

(b) The Seller also agrees to include these requirements in each subcontract to
administer any system of records on behalf of the Federal Government financed in whole
or in part with Federal assistance provided by FTA.

47. Federal Participation, Laws, Regulations and Assistance. Seller shall at all
times comply with all applicable FTA regulations, policies, procedures and directives,
including without limitation those listed directly or by reference in the Master Agreement
between the City and FTA, as they may be amended or promulgated from time to time
during the term of this contract. Seller’s failure to so comply shall constitute a material
breach of this contract.

The City is supported by assistance from the Federal Transit Administration financial
assistance. This Contract is subject to the terms of financial assistance contracts
between the City and the US Department of Transportation. The Seller shail comply
with existing and future federal requirements while providing services under this
Contract.

48. Interest of Members of or Delegates to Congress.

No member of or delegate to the Congress of the United States shall be admitted to any
share or part of this contract or to benefit thereof.

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IN WITNESS WHEREOEF, the parties hereto have executed this Contract.

SELLER
Dated: , 2019 By
Name:
Title:
Duly Authorized
CITY OF NASHUA
Dated: , 2019 By:

James W. Donchess, Mayor
Duly Authorized

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