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This contract constitutes the entire contract between the City and the Contractor. The parties
shall not be bound by or be liable for any statement, representation, promise, inducement, or
understanding of any kind or nature not set forth in this contract. No changes, amendments, or
modifications of any terms or conditions of the contract shall be valid unless reduced to writing
and signed by both parties.

In the event that any current law, regulation, or ordinance, either local or state, is amended,
rescinded, newly enforced or enacted which affects this Agreement, the parties shall, in good
faith, amend this Agreement in order to be in compliance with said Legislative changes. If said
changes cause an increase in fees or costs by either party, the parties in good faith shall amend
this Agreement to reflect the treatment of said fees or costs.

INDEPENDENT CONTRACTOR

The Contractor agrees that HSFN is completely independent from the City and is not an
employee of the City. The Contractor warrants that HSFN may work for other individuals and/or

entities.
CHOICE OF LAW AND VENUE

This Agreement shall be governed exclusively by the laws of the State of New Hampshire and
any litigation regarding the interpretation or enforcement of this Agreement shall only be
brought in a court located in the State of New Hampshire.

Douglas Barry, Executive Director James Donchess, Mayor
Humane Society for Greater Nashua Corporation City of Nashua, NH
Date Date

CITY OF NASHUA
OFFICE OF CORPORATION COUNSEL

Attorney-Client Confidential Communication
Memorandum

To: | Mayor and Board of Aldermen
cc: ~= ‘File

From: Celia K. Leonard, Esquire, Deputy Corporation Counsel
Date: July 9, 2019

RE: Hillsborough County Superior Court South Docket No. 226-2019-CV-00248
Humane Society Contract

Background

The Humane Society for Greater Nashua (HSGN), in addition to its own work, has
provided shelter, pound, isolation and quarantine services for the City for over 20 years pursuant
to a series of annual written contracts. The fiscal year 2020 contract is currently before the
Finance Committee for approval. The contract as presented includes cats, as it has for decades.

One Nashua resident, Mr. Braun, is of the opinion that it is illegal for the City to so
contract with the HSGN. He has filed a lawsuit against the City and Mayor, Hillsborough
County Superior Court South Docket No. 226-2019-CV-00248, in which he is asking the court to
issue an injunction ordering the City not to contract with any third party to impound cats as
strays or for running at large. He claims that spending public funds (or approving to spend
funds) for such purposes as impounding cats as strays or running at large violates city ordinance,
specifically NRO 93-6, state law (no specific law is referenced) and the “due process clauses of
the New Hampshire and United States constitutions” (without elaboration). His petition is
devoid of case law or statutory support for his assertions.

I disagree with Mr. Braun’s legal assertions and it is my opinion that the contract with
HSGN, including the cat provisions, is legal in all respects.

The City filed a Motion to Dismiss Mr. Braun’s lawsuit for failure to state a claim. Mr.
Braun objected and a hearing is scheduled on the motion on August 5, 2019.

The facts leading to the lawsuit are that on September 18, 2017, Mr. Braun allowed one
of his cats to roam unfettered outside in the public right of way and on the private property of
others. The cat had no collar or other outward identifying information. Said cat was trapped by
another Nashua resident on the resident’s private Nashua property in a HSGN “have-a-heart”’
trap. After capture of the trespassing cat, the resident called the Animal Control Officer of the
Nashua Police Department (“ACO”) requesting transport of the cat to HSGN. The ACO agreed
and transported the cat to HSGN. After the brief transport, HSGN took custody of the cat from
the ACO. HSGN returned the cat, unharmed, to Mr. Braun.

Analysis

The Board of Aldermen, here acting through the Finance Committee, has the statutory
powers to administer the operations of the city, including authority to "manage the prudential
affairs of the [city] and perform the duties by law prescribed." RSA 41:8, see also RSA 47:13.

Many of the Board of Aldermen’s powers and duties come from specific statutes (and
thus are “by law prescribed.”) For example, budget administration, RSA 32; financial
accounting and safeguarding, RSA 41:9; and management of city property, RSA 41:1 1-a, unless
assigned to another board by statute. Likewise, the Board of Aldermen is specifically given the
power to make any contract “which may be necessary and convenient for the transaction of the
public business of the town.” RSA 31:3.

Cats can contract and transmit rabies. Having a population of abandoned, hurt or feral
cats or cats that are allowed to roam without check or recourse on public lands and other
peoples’ yards can reasonably be viewed as a nuisance and potential health threat to the City’s
human population. Consequently, contracting for a safe place to transport to and drop-off
wayward, injured, abandoned or at-large domestic animals, such as cats, is necessary and
convenient for the transaction of the public business of the City. Further, there is no prohibition
in state law on the City contracting to impound cats.

In addition to the statutory authority to contract, the NH Supreme Court has found that
“t]he particular duties comprehended within the meaning of ihe phrase ‘prudential affairs’ are
not easily enumerated...” They are "empowered to do only such acts as are required to meet the
exigencies of ordinary town business." Moulton v. Beals, 98 N.H. 461, 463-4 (1954)(internal
citations omitted).

While seemingly limiting language, the authority "to meet the exigencies of ordinary
town business" should not be underestimated. The Board of Aldermen 1s empowered to protect
the City’s interests when no other board or official is specifically charged with the responsibility.
Also, while there are many specific statutory powers conferred on the Board of Aldermen and
other boards and officials, there are important government functions that are not expressly
assigned by statute. With the “prudential affairs” language, not all City actions need be
specifically articulated in state statute or City ordinance to be valid as long as they relate to

Page 2 of 3

“ordinary [city] business.” At-large cats can scratch wood-work, defecate and urinate in gardens
and elsewhere, and carry disease that may be spread to both humans and other animals.
Contracting for a safe place to transport to and drop-off wayward, injured, abandoned or at-large
domestic animals, such as cats, in order to avoid or minimize such nuisances is therefore
ordinary city business.

In his lawsuit, Mr. Braun argues that the City “must adopt specific and express law as an
ordinance of the municipality in order to undertake the general grant of power provided by RSA
31.” He cites no case law or statutory authority for his position and he cannot. As discussed
above, not every action of the City must be by ordinance. The Board of Aldermen (or Finance
Committee) can and does act through a majority (or more) vote of the body. Voting to approve a
contract is a valid means to effectuate the “public business” of the city for the purposes of the
contract. In this instance, voting on a contract to fund shelter, pound, isolation and quarantine
services for the City, including for cats, is a legal purpose and a valid method to effectuate such
purpose. An ordinance is not required. Another example, the City contracts to install specialty
devices at the wastewater treatment plant. There is no ordinance that specifically states that
contracts can be entered into for such devices. The City can do so under its general contracting
power of RSA 31:3 and its ability to manage the prudential affairs of the city under RSA 41:8.

There are state laws regarding (or which could relate to) cats and the City’s authority to
legislate them. RSA Chapter 466 allows the City to license cats (but does not require it); see also
RSA 147:1, I which allows laws in regards to nuisances and RSA 47:17, I, XIV, which allows
laws to “carry into effect all powers by law vested in the City and “to abate and remove
nuisances.” Mr. Braun appears to argue that these statutes ‘preempt the field’ in regards to cats
and that, as they reference ordinances, the Board of Aldermen is only authorized to act through
ordinance, not by resolution or vote of the body to approve a contract. Again, Mr. Braun cites no
authority to support his position. Read in harmony with the Board of Aldermen’s ability to
manage the prudential affairs of the city, RSA 41:8, and the power to make any contracts “which
may be necessary and convenient for the transaction of the public business of the town,” RSA
31:3, those statutes do not preempt all City action in regards to cats. Neither do they require an
ordinance for the City to act in regards to cats.

Even if the Court disagrees that the Board of Aldermen does not have to have an
ordinance to contract with HSGN, the Board has enacted NRO 93-6. “Impoundment of dogs,
cats, ferrets and chickens found at large.” Section A of the ordinance relates only to dogs,
however the rest, sections B — F, specifically reference cats. Section A can be read in harmony
with NRO 93-2 forbidding certain animals to be at large. Cats are not on the list in 93-2, A.
That simply means that there is no penalty under NRO 1-9 regarding a cat being at large and
none was issued against Mr. Braun. An act does not have to result in a violation for the
impoundment of an animal as NRO 93-6, B — F delineate. Also while 93-6, A states that certain
at-large dogs “shall be” taken into custody, read as a whole 93-6 does not prohibit other at-large
animals from being taken into custody. The references to impoundment in sections B — F
necessarily and fairly imply the authority to seize an at-large dog, cat or ferret. It is impossible
to impound something that has not first been seized.

Mr. Braun’s constitutional claims are not pled in detail or well-formed and are, in any
event, equally without merit.

Page 3 of 3

THE CITY OF NASHUA "The Gate City"

Financial Services

Purchasing Department

August 8, 2019
Memo #20-009

TO: MAYOR DONCHESS
FINANCE COMMITTEE

SUBJECT: PURCHASE OF NPD STORAGE SERVER (VALUE: $39,732)
DEPARTMENT: 150 POLICE; FUND: GENERAL

Please see attached communications from Karen A. Smith, Business Manager dated July 31, 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 Nashua Police Department and the Purchasing Department recommend the award of this purchase
in the amount of $39,732 from Axis Business Solutions of Portsmouth, NH.

Dan Kooken
Purchasing Manager

Ce: K Smith M Carignan P Cinfo

229 Main Street » Nashua, New Hampshire 03061 © Phone (603) 589-3330 e Fax (603) 589-3233 |

NASHUA POLICE
Date: 37 July 2079

intradepartmenta!l Communication

To: Dan Kooken, Purchasing Manager
From: Peter Cinfo, IT Manager - Police

Subject: Storage

The Nashua Police Department Information Technology Division is requesting the purchase of a new
Storage Area Network (SAN) to replace aging equipment. Our current SAN was purchased back in 2010
and has served us well but is far beyond the 5 year industry (and department) standard for replacement.
While we do have other SAN's within our network, this particular piece of equipment is a much higher-end
product designed to have 99.9% up time and specifications that allow for high traffic data return rates.
While the others are nearly half of that specification, this particular SAN is the storage for each of the
departments 18 virtual servers, 17 virtual Desktops, and most importantly, all Records Management and
Dispatch software. | have been advised that our current product has been marked as “END OF LIFE" and
most parts will begin to become unavailable. Just recently one of the hard drives failed and we were
forced to seek out an aftermarket vendor on the Internet to get the replacement parts needed. As you can
imagine without this particular SAN, server and network operations will be, greatly affected. Unfortunately,
ihis particular item cannot be purchased and upgraded “in pieces” from year-to-year. It must be a one-time
full purchase. Three vendors were contacted for quotes as listed below.

VENDOR NAME ADDRESS AMOUNT

Axis Business Solutions Portsmouth, NH $39,732.19

Aspire Technologies Inc Portsmouth, NH $45,903.00

Hewlett Packard Enterprises Andover, MA $92,659.03
$

The Nashua Police Department recommends that the purchase be made through the vendor with the
lowest quoted price, which was received from “Axis Business Solutions” in the amount of $39,732.19 for
the replacement SAN quoted at the Nashua Police Department.

Sincerely,

af
dos

Peter Cinf
IT Manag¢r - Police

#2) THE CITY OF NASHUA “The Gate City’

Financial Services

Purchasing Department

Augusi 8, 2019
Memo #20-018

TO: MAYOR DONCHESS
FINANCE COMMITTEE

SUBJECT: CONTRACT FOR ENGINEERING SERVICES FOR HERITAGE RAIL TRAIL EAST
(VALUE $166,398)
DEPARTMENT: 181 COMMUNITY DEVELOPMENT; FUND: NH DOT HERITAGE RAIL TRAIL EAST GRANT

Please see attached communication from Sarah Marchant, Community Development Division Director,
dated August 2, 2019 for information related to this contract award.

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 Community Development Department and the Purchasing Department recommend the award of this
contract to CMA Engineers, Inc. of Manchester, NH in an amount of $166,398.

Respectfully,
¢. Lb — .
a oken

Purchasing Manager

Ce: S. Marchant J. Graziano

229 Main Street ¢ Nashua, New Hampshire 03061 e Phone (603) 589-3330 e Fax (603) 589-3233 |

City of Nashua aa
Community Development Division Cee pene ont
City Hall, 229 Main Street, PO Box 2019 Ftangportaten Department
Nashua, New Hampshire 03061-2019 Waterways

www.nashuanh.gov

Date: August 2, 2019
To: John Griffin, CFO; Daniel Kooken, Purchasing Manager
From: Sarah Marchant, Community Development Division Director

Re: Contract for Engineering Services for the Heritage Rail Trail East

The City of Nashua was awarded a NH Department of Transportation (NH DOT) Congestion
Mitigation and Air Quality (CMAQ) grant to design and construct a bicycle and pedestrian trail
extending approximately three-quarters of a mile from Main Street to Denton Street, next to the
25 Crown Street future rail station. The Heritage Rail Trail project was started in the late 2000s
to reduce congestion along East and West Hollis Street, one of the most congested corridors in
the City of Nashua and the Nashua Region, by providing an alternative bicycle and pedestrian
transportation route through the heart of the City’s most densely populated neighborhoods. The
City has consistently moved this project forward over the last 10+ years through the acquisition
of all necessary land or easements along the entire corridor, and completed construction of the
Heritage Rail Trail West from City Hall to Will Street/Simon Street. Most recently the
Department of Public Works installed needed new lighting along the heavily used western trail
through a FY2017 budget appropriation.

In compliance with the NH DOT funding for this project, the selection of an engineering firm
followed the Local Public Agency rules. A Request for Qualifications must be advertised and the
selected firm must be based on qualifications and not cost. Fees and scope are discussed after
the firm is selected. The Request for Qualifications for comprehensive engineering services,
including the feasibility and design phase engineering for this project, was issued on March 15th
and closed April 19th, 2019.

We received six (6) submissions and interviewed four (4) firms. A team comprised of City staff
participated in the evaluation of qualifications which included Sarah Marchant (CDD Director),
Julie Chizmas (CDD Transportation and Long Range Planner), Peter Kohalmi (Deputy City
Engineer), Mike Harris (DPW Operations Manager), and Nick Caggiano (Parks Superintendent).

From the four (4) firms interviewed, the team unanimously agreed that the contract should be
awarded to CMA Engineers, Inc., based on their qualifications, prior experience on similar
projects, and familiarity with NH DOT processes. Once approved by NH DOT, we entered into
scope and fee negotiations. According to the terms of this grant, NH DOT pays 80% of expenses
with the remaining 20% being paid by the City. The Community Development Division
recommends awarding the contract for comprehensive engineering services to CMA
Engineering, Inc., of Manchester, NH in the amount of $166,398.

589-3095
589-3090
589-3080
589-3100
589-3085
880-0100
589-3092
589-3119

Exhibit C - Scope, Fee and Services
CMA ENGINEERS, INC.

CIVIL ENVIRONMENTAL | STRUCTURAL

CMA
r & 1 Sundial Avenue, Suite 51CN

ENGINEERS

Manchester, New Hampshire
03103

July 22, 2019 P: 603|62710708
WWW, cmaengineers.com

Sarah Marchant

Director of Community Development
City of Nashua

229 Main Street

Nashua, NH 03061

Re: Nashua Heritage Rail Trail East Design and Construction Services
Nashua 41742
CMA #P-2947

Dear Ms. Marchant:

CMA Engineers is pleased to provide our agreement for engineering services for the Nashua Heritage Rail
Trail East project, funded in part by the NHDOT Congestion Mitigation and Air Quality (CMAQ) program. Our
Scope of Services and Fee Estimate are included in Exhibits A and B. The scope has been prepared in
accordance with the program requirements of “NHDOT’s Local Public Agency Manual for the Development
of Projects”. Additionally, the following items should be noted:

1. Approval of Contract

This contract will be reviewed by the NHDOT prior to execution by the City. Work cannot begin on this
project until the NHDOT has reviewed and approved the scope of work and the City’s Independent
Governmental Estimate (IGE).

2. Project Team

The team for this project consists of the individuals listed below supplemented by the balance of CMA
Engineers’ engineering and technical staff. Field survey and right-of-way determination will be
completed by Hayner/Swanson, Inc. (HSI), geotechnical and environmental services will be completed
by Terracon Consultants, Inc. (Terracon), and landscape and lighting design by Ironwood Design Group
LLC. (Ironwood). Key CMA Engineers team members include the following individuals:

William A. Straub, P.-E. Principal-in-Charge

Jason J. Beaudet, P.E. Project Manager

Philip A. Corbett, P.E. Senior & Independent Q/A review
Samuel T. Fortier, P.E. Engineering Design

Whitney A. Chamberlain, E.1.T. Permitting & Historical Research

P-2947-Nashua-C-190722-CMAQ Agreement LB
MANCHESTER, NH | PORTSMOUTH, NH | PORTLAND, ME

Ms. Sarah Marchant
July 15, 2019
Page 2

3. Project Schedule

A preliminary project schedule has been prepared and assumes a June 2019 Notice to Proceed, pending
approvai of the scope and fee by NHDOT. The proposed schedule reflects the following major

milestones:

Engineering Study
Notice to Proceed

August 2019 (assumed)

Local Concerns Meeting August 2019
Survey Complete/Delivered August 2019
Alternatives / Conceptual Design September 2019
Proposed Action Meeting September 2019
Engineering Study September 2019
Draft Environmental Document September 2019
Notice to Proceed to Preliminary Design October 2019
Preliminary Design

Preliminary Design December 2019
NEPA Complete December 2019
Notice to Proceed/Final Design January 2020
Final Design

Final Plans, Specifications, and Estimate February 2020
ROW Offers/Negotiations Complete February 2020
Authorization to Advertise March 2020
Open Bids April 2020
Construction (Not Part of this Contract}

Contract Award May 2020
Construction Summer 2020

This schedule will be updated as the project needs are better defined, and an anticipated construction
period is discussed with the City. The schedule will also be dependent on State reviews. We expect that
all construction will be completed in a single-season during the summer of 2020.

4. Engineering Fees

This is a cost-plus-fixed-fee contract for the schedule assumed above. Our fee estimate for the
Engineering Study, Preliminary Design, and Final Design (inclusive of bidding assistance) for this project,
inclusive of labor, expenses and consultants’ costs has been estimated at $166,398. This fee does not
include costs for the Construction Phase at this time, which can be negotiated at a later date once the
project is further refined and closer to construction. A detailed estimated project cost breakdown is
included in Exhibit B of this agreement. If total fees exceed the estimated fee total of the value specified
above, we will advise the City as to the circumstances requiring such increases, and not exceed the
budget without additional authorization. Invoices are submitted monthly with payment of invoices due

net thirty (30) days of the invoice date.
CMA

P-2947-Nashua-C-190722-CMAQ Agreement 1B ENGINEERS
anna naan