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to liability caused by the sole negligence or wiltful misconduct of the party indemnified or
held harmless.

FISCAL CONTINGENCY All payments under this contract are contingent upon the
availability to the City of Nashua of the necessary funds. This contract shall terminate and
the City of Nashua's obligations under it shall be extinguished at the end of any fiscal year
in which the City of Nashua 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 Independent Contractor with a right
of payment over any other entity, Any funds obligated by the City of Nashua under this
contract that are not paid to Independent Contractor shall automatically revert to the City
of Nashua’s discretionary control upon the completion, termination, or cancellation of the
agreement. The City of Nashua shall not have any obligation to re-award or to provide, in
any manner, the unexpended funds to Independent Contractor. Independent Contractor
shal! have no claim of any sort to the unexpended funds.

COMPENSATION Review by the City of Nashua of Independent Contractor's submitted
monthly invoice forms and progress reports for payment will be promptly accomplished
by the City of Nashua. If there is insufficient information, the City of Nashua may require
Independent Contractor to submit additional information. Unless the City of Nashua, in its
sole discretion, decides otherwise, the City of Nashua shall pay Independent Contractor in
full within 30 days of approval of the submitted monthly invoice forms and progress
reports.

COMPLIANCE WITH APPLICABLE LAWS Independent Contractor, at all times, shall fully
and completely comply with all applicable local, state and federal laws, statutes,
regulations, ordinances, orders, or requirements of any sort in carrying out the obligations
of this contract, including, but not limited to, all federal, state, and local accounting
procedures and requirements, all immigration and naturalization laws, and the Americans
With Disabilities Act. Independent Contractor shall, throughout the period services are to
be performed under this contract, monitor for any changes to the applicable laws, statutes,
regulations, ordinances, orders, or requirements, shall promptly notify the City of Nashua
in writing of any changes to the same relating to or affecting this contract, and shall submit
detailed documentation of any effect of the change in terms of both time and cost of
performing the contract.

NONDISCRIMINATION If applicable or required under any federal or state law, statute,
regulation, order, or other requirement, Independent Contractor agrees to the following
terms. Independent Contractor will not discriminate against any employee or applicant for
employment because of physical or mental handicap in regard to any position for which
the employce or applicant for employment is qualified. Independent Contractor agrees to
take affirmative action to employ, advance in employment, or to otherwise treat qualified,
handicapped individuals without discrimination based upon physical or mental handicap
in all employment practices, including but not limited to the following: employment,
upgrading, demotion, transfer, recruitment, advertising, layoff, termination, rates of pay,
or other forms of compensation and selection for training, including apprenticeship.

Without limitation of the foregoing, Independent Contractor's attention is directed to Title
4§’Public Contracts and Property Management” C.F.R. Subtitle B “Other Provisions

GC 8 of 13

17,

18.

19,

20.

Relating to Public Contracts” Section 60 “Office of Federal Contract Compliance
Programs, Equal Employment, Department of Labor” which, by this reference, is
incorporated in this contract,

Independent Contractor agrees to assist disadvantaged business enterprises in obtaining
business opportunities by identifying and encouraging disadvantaged suppliers,
consultants, and sub consultants to participate to the extent possible, consistent with their
qualification, quality of work, and obligation of Independent Contractor under this
contract.

In connection with the performance of work under this contract, Independent Contractor
agrees not to discriminate against any employee or applicant for employment because of
race, creed, color, national origin, sex, age, or sexual orientation. This agreement includes,
but is not 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.

Independent Contractor agrees, if applicable, to insert these provisions in all subcontracts,
except for subcontracts for standard commercial supplies or raw materials. Any violation
of any applicable provision by Independent Contractor shall constitute a material breach of
the contract.

ENDORSEMENT Independent Contractor shall seal and/or stamp and sign professional
documents including drawings, plans, maps, reports, specifications, and other instruments
of service prepared by Independent Contractor or under its direction as required under the
laws of the State of New Hampshire.

ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING Independent Contractor
shall not assign, transfer, delegate, or subcontract any rights, obligations, or duties under
this contract without the prior written consent of the City of Nashua. Any such assignment,
transfer, delegation, or subcontracting without the prior written consent of the City of
Nashua is void. Any consent of the City of Nashua to any assignment, transfer, delegation,
or subcontracting shall only apply to the incidents expressed and provided for in the written
consent and shail not be deemed to be a consent to any subsequent assignment, transfer,
delegation, or subcontracting. Any such assignment, transfer, delegation, or subcontract
shall require compliance with or shall incorporate all terms and conditions set forth in this
agreement, including all incorporated Exhibits and written amendments or modifications.
Subject to the foregoing provisions, the contract inures to the benefit of, and is binding
upon, the successors and assigns of the parties.

CITY INSPECTION OF CONTRACT MATERIALS The books, records, documents and
accounting procedures and practices of Independent Contractor related to this contract shall
be subject to inspection, examination and audit by the City of Nashua, including, but not
limited to, the contracting agency, the Board of Public Works, Corporation Counsel, and,
if applicable, the Comptroller General of the United States, or any authorized
representative of those entities.

DISPOSITION OF CONTRACT MATERIALS Any books, reports, studies, photographs,

hegatives or other documents, data, drawings or other materials, including but not limited
to those contained in media of any sort (e.g., electronic, magnetic, digital) prepared by or

GC 9 of 13

2.

supplied to Independent Contractor in the performance of its obligations under this contract
shall be the exclusive property of the City of Nashua and all such materials shall be remitted
and delivered, at Independent Contractor's expense, by Independent Contractor to the City
of Nashua upon completion, termination, or cancellation of this contract. Alternatively, if
the City of Nashua provides its written approval to Independent Contractor, any books,
reports, studies, photographs, negatives or other documents, data, drawings or other
materials including but not limited to those contained in media of any sort (e.g., electronic,
magnetic, digital) prepared by or supplied to Independent Contractor in the performance
of its obligations under this contract must be retained by Independent Contractor for a
minimum of four years after final payment is made and all other pending matters are closed.
If, at any time during the retention period, the City of Nashua, in writing, requests any or
all of the materials, then Independent Contractor shall promptly remit and deliver the
materials, at Independent Contractor's expense, to the City of Nashua. Independent
Contractor shall not use, willingly allow or cause to have such materials used for any
purpose other than the performance of Independent Contractor's obligations under this
contract without the prior written consent of the City of Nashua.

PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS Independent Contractor expressly
agrees that all documents ever submitted, filed, or deposited with the City of Nashua by
Independent Contractor (including those remitted to the City of Nashua by Independent
Contractor pursuant to paragraph 20), unless designated as confidential by a specific statue
of the State of New Hampshire, shall be treated as public records and shall be available for
inspection and copying by any person, or any governmental entity.

No books, reports, studies, photographs, negatives or other documents, data, drawings or
other materials including but not limited to those contained in media of any sort (e.g.,
electronic, magnetic, digital) prepared by or supplied to Independent Contractor in the
performance of its obligations under this contract shall be the subject of any application for
a copyright or patent by or on behalf of Independent Contractor. The City of Nashua shall
have the right to reproduce any such materials.

Independent Contractor expressly and indefinitely waives all of its rights to bring,
including but not limited to, by way of complaint, interpleader, intervention, or any third
party practice, any claims, demands, suits, actions, judgments, or executions, for damages
or any other relief, in any administrative or judicial forum, against the City of Nashua or
any of its officers or employees, in either their official or individual capacity of the City of
Nashua, for violations of or infringement of the copyright or patent laws of the United
States or of any other nation. Independent Contractor agrees to indemnify, to defend, and
to hold harmless the City of Nashua, its representatives, and employees from any claim or
action seeking to impose liability, costs, and attorney fees incurred as a result of or in
connection with any claim, whether rightful or otherwise, that any material prepared by or
supplied to Independent Contractor infringes any copyright or that any equipment,
material, or process (or any part thereof) specified by Independent Contractor infringes any
patent.

Independent Contractor shall have the right, in order to avoid such claims or actions, to
substitute at its expense non-infringing materials, concepts, products, or processes, or to
modify such infringing materials, concepts, products, or processes so they become non-
infringing, or to obtain the necessary licenses to use the infringing materials, concepts,
products, or processes, provided that such substituted or modified materials, concepts,

GC 10 of 13

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23.

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products, or processes shall meet all the requirements and be subject to all the terms and
conditions of this contract.

FINAL ACCEPTANCE Upon completion of all work under the contract, Independent
Contractor shall notify the City of Nashua in writing of the date of the completion of the
work and request confirmation of the completion from the City of Nashua. Upon receipt
of the notice, the City of Nashua shall confirm to Independent Contractor in writing that
the whole of the work was completed on the date indicated in the notice or provide
Independent Contractor with a written list of work not completed. With respect to work
listed by the City of Nashua as incomplete, Independent Contractor shall promptly
complete the work and the final acceptance procedure shall be repeated. The date of final
acceptance of a project by the City of Nashua shall be the date upon which the Board of
Public Works or other designated official accepts and approves the notice of completion.

TAXES Independent Contractor shall pay all taxes, levies, duties, and assessments of every
nature due in connection with any work performed under the contract and make any and
all payroll deductions required by law. The contract sum and agreed variations to it shall
include all taxes imposed by law. Independent Contractor hereby indemnifies and holds
harmless the City of Nashua from any liability on account of any and all such taxes, levies,
duties, assessments, and deductions.

NON-WAIVER OF TERMS AND CONDITIONS None of the terms and conditions of this
contract shall be considered waived by the City of Nashua. There shall be no waiver of
any past or future default, breach, or modification of any of the terms and conditions of the
contract unless expressly stipulated to by the City of Nashua in a written waiver.

RIGHTS AND REMEDIES The duties and obligations imposed by the contract and the rights
and remedies available under the contract shall be in addition to and not a limitation of any
duties, obligations, rights, and remedies otherwise imposed or available by law.

PROHIBITED INTERESTS Independent Contractor shall not allow any officer or employee
of the City of Nashua to have any indirect or direct interest in this contract or the proceeds
of this contract. Independent Contractor warrants that no officer or employee of the City
of Nashua has any direct or indirect interest, whether contractual, noncontractual, financial
or otherwise, in this contract or in the business of Independent Contractor. If any such
interest comes to the attention of Independent Contractor at any time, a full and complete
disclosure of the interest shall be immediately made in writing to the City of Nashua.
Independent Contractor also warrants that it presently has no interest and that it will not
acquire any interest, direct or indirect, which would conflict in any manner or degree with
the performance of services required to be performed under this contract. Independent
Contractor further warrants that no person baving such an interest shall be employed in the
performance of this contract. If City of Nashua determines that a conflict exists and was
not disclosed to the City of Nashua, it may terminate the contract at will or for cause in
accordance with paragraph 8.

In the event Independent Contractor (or any of its officers, partners, principals, or
employees acting with its authority) is convicted of a crime involving a public official
arising out or in connection with the procurement of work to be done or payments to be
made under this contract, City of Nashua may terminate the contract at will or for cause in
accordance with paragraph 8. Upon termination, Independent Contractor shall refund to

GC 11 of 13

Board of Aldermen — 8/8/17 Page 19

R-17-117
Endorsers: Alderman-at-Large Lori Wilshire
Alderwoman Mary Ann Melizzi-Golja
Alderman Thomas Lopez
RELATIVE TO THE USE OF U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT HOME
INVESTMENT PARTNERSHIP PROGRAM FUNDS FOR 22 MARSHALL STREET
Given its first reading; assigned to the HUMAN AFFAIRS COMMITTEE by President McCarthy

R-17-118
Endorsers: Mayor Jim Donchess
Alderwoman Mary Ann Melizzi-Golja
Alderman Richard Dowd
Alderman June Caron
Alderman Michael O’Brien
Alderman Thomas Lopez
Alderman Lori Wilshire
RELATIVE TO THE ACCEPTANCE AND APPROPRIATION OF A $2,900,000 LEAD-BASED PAINT
HAZARD CONTROL GRANT FROM THE US DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT
Given its first reading; assigned to the HUMAN AFFAIRS COMMITTEE by President McCarthy

R-17-119
Endorser: Alderman-at-Large Brian S. McCarthy
Alderman Michael O’Brien
Alderman Lori Wilshire
Alderman Richard Dowd
Alderman June Caron
RELATIVE TO A BALLOT REFERENDUM TO ALLOW KENO WITHIN THE CITY OF NASHUA
Given its first reading; assigned to the PERSONNEL/ADMINISTRATIVE AFFAIRS COMMITTEE by President
McCarthy

R-17-120
Endorser: Mayor Jim Donchess
Alderman Richard Dowd
Alderman Michael O’Brien
Alderman Thomas Lopez
Alderman-at-Large Brian McCarthy
Alderman Lori Wilshire
RELATIVE TO AN AGREEMENT FOR COUNSEL SERVICES CONCERNING POTENTIAL OPIOID
LITIGATION
Given its first reading; assigned to the FINANCE COMMITTEE by President McCarthy

R-17-121

Endorser: Mayor Jim Donchess

RELATIVE TO THE RE-APPROPRIATION OF FISCAL YEAR FY2018 ESCROWS
Given its first reading; assigned to the BUDGET REVIEW COMMITTEE by President McCarthy

27,

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the City of Nashua any profits realized under this contract, and Independent Contractor
shail be liable to the City of Nashua for any costs incurred by the City of Nashua in
completing the work described in this contract, At the discretion of the City of Nashua,
these sanctions shall also be applicable to any such conviction obtained after the expiration
or completion of the contract.

Independent Contractor warrants that no gratuities (including, but not limited to,
entertainment or gifts) were offered or given by Independent Contractor to any officer or
employee of the City of Nashua with a view toward securing a contract or securing
favorable treatment with respect to the awarding or amending or making of any
determinations with respect to the performance of this contract. If City of Nashua
determines that such gratuities were or offered or given, it may terminate the contract at
will or for cause in accordance with paragraph 8.

The rights and remedies of this section shall in no way be considered for be construed as a
waiver of any other rights or remedies available to the City of Nashua under this contract
or at law.

THIRD PARTY INTERESTS AND LIABILITIES The City of Nashua and Independent
Contractor, including any of their respective agents or employees, shall not be liable to
third parties for any act or omission of the other party. This contract is not intended to
create any rights, powers, or interest in any third party and this agreement is entered into
for the exclusive benefit of the City of Nashua and Independent Contractor.

SURVIVAL OF RIGHTS AND OBLIGATIONS The rights and obligations of the parties that by
their nature survive termination or completion of this contract shal] remain in full force and
effect.

SEVERABILITY In the event that any provision of this contract is rendered invalid or
unenforceable by any valid act of Congress or of the New Hampshire legislature or any
court of competent jurisdiction, or is found to be in violation of state statutes or regulations,
the invalidity or unenforceability of any particular provision of this contract shall not affect
any other provision, the contract shall be construed as if such invalid or unenforceable
provisions were omitted, and the parties may renegotiate the invalid or unenforceable
provisions for sole purpose of rectifying the invalidity or unenforceability.

MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT This contract constitutes the
entire contract between the City of Nashua and Independent 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.

CHOICE OF LAW AND VENUE This contract shall be govemed exclusively by the laws of
the State of New Hampshire and any claim or action brought relating to this contract, the
work performed or contracted to be performed thereunder, or referable in anyway thereto
shall be brought in Hillsborough County (New Hampshire) Superior Court Southern
Judicial District or in the New Hampshire 9th Circuit Court—Nashua and not elsewhere.

GC 12 of 13

City of Nashua

Purchasing Department . (603) 589-3330
Administrative Services Division Fax (603) 594-3233
229 Main Street - Nashua, NH 03060 purchasina@nashuanh.aov

To: Mayor Donchess
Finance Committee

From: Kelly Parkinson, Purchasing Manager
Date: November 10, 2021
Re: Change Order for Transit Center Renovation

In accordance with O-14-011, communication of amendments to contracts, this memo is to inform the
Finance Committee of a subsequent change order to the request from the Community Development
Division for a project change order from D.L. King & Associates of Nashua NH.

The original contract price in the amount of $1,129,710 was approved by Finance Committee on May 19,
2021 and the full Board of Aldermen on May 25, 2021.

The Community Development Division has requested the additional $17,517.79 in funding to cover change
orders #1 and #2 as detailed in the attached communication from Camille Correa, Transit Administrator
bringing the approved total to $1,147,227.79.

Date: November 3, 2021
To: John Griffin, CFO; Kelly Parkinson, Purchasing Manager
From: Camille Correa, Transit Administrator

Re: _ Transit Center Retrofit project change orders

The City of Nashua was awarded grants from the Federal Transit Administration for the Nashua
Transit System to retrofit the Transit Center and surrounding sidewalks and roadway.

A contract with DL King in the amount of $1,129,710 was approved by Finance Committee on
5/19/2021 and the Board of Aldermen on 5/25/2021. The retrofit project began construction in
late July 2021.

Change Order #1 in the amount of $5,611.84 includes work completed by the contractor for the
Department of Public Works (DPW) in the amount of $5,611.84. The Department of Public Works
will pay for $5,611.84 to fix the roadwork after an underground sewer line needed to be fixed by
DPW.

Change Order #2 in the amount of $11,905.95 is due to changes in the interior tile and grout to be
used in the Transit Center as well as drainage grade and pipe changes to a manhole and catch basin
due to gas utility pipe elevations. This change order also extends the period of performance by 29
days to December 15, 2021 in order to coincide with the winter shut down from NHDOT. NTS
anticipates a progress report between December 1 and December 15 from the contractor outlining
an additional time extension for both internal and external work.

The new contract price with these changes orders 1s now $1,147,227.79.

CHANGE ORDER

No. 2

PROJECT: Nashua Transit Center Retrofit

OWNER'S CONTRACT NO.: __ RFP0979-040821

EXECUTED CONTRACT DATE: July 15, 2021

DATE OF ISSUANCE: _ November 1, 2021 — EFFECTIVE DATE: Upon City Approval

OWNER: City of Nashua, NH
OWNER’s Purchase Order NO.: 165194
CONTRACTOR: DL King & Associates, Inc.
ENGINEER: Greenman-Pedersen, Inc.

The Contract is modified as follows upon execution of this Change Order:

Description:

1. Interior tile and grout change to provide porcelain tile in place of the ceramic wall tile. Also, substitute
polymer modified grout to a laticrete epoxy grout.

2. Drainage grade and pipe changes to drain manhole # 520 and catch basin #130.
Justification:

1. The decision to change the wall tile to a porcelain tile is to match the specified porcelain tile being installed
on the Transit Center flooring. The ceramic tile specified for the walls will not match the quality or finish of the
floor tile. With this change, the quality will be higher with a strong resistance to staining and damage. The
epoxy grout substation will also provide a significant quality upgrade as the epoxy grout has a stronger
resistance to staining and mold. Making the grout on the floor and walls easier to clean with less future
maintenance being required.

2. An existing gas utility service to City Hall was discovered to be at an underground elevation that prevented
the specified 12-inch plastic drainpipe to be installed at specified location. A change was made to change the
pipe elevations and provide a reduced size 8-inch ductile iron pipe at higher grades. The ductile iron material
was selected to provide adequate strength with the new grades for both drainage structures impacted. Both
drainage structures were adjusted to accommodate the needed changes. Any changes made were reviewed

and inspected by the gas utility owner for approval.

Change Order #2 1 of 3

Attachments:
e DL. King COR# 2 Proposal CB-130 Extra Work

e OD.L. King COR# 3 Proposal DMH-520 Adjustment
e = 6D.L. King COR# 10 Proposal Porcelain/Epoxy Grout

Change Order #2 2 of 3