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13.

14.

15.

16.

fratare+H-anymannercaused, occasioned, or contributed to in whole or in part by reason of
any negligent act, omission, or fault or willful misconduct, whether active or passive, of
Professional Consultant or of anyone acting under its direction or control or on its behalf
in connection with er-ineidentat-te—the performance of this contract. Professional
Consultant’s indemnity and hold harmless obligations, or portions thereof, shall not apply
to liability caused by the sole negligence or willful 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 Professional Consultant 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 Professional Consultant 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 Professional Consultant. Professional Consultant
shall have no claim of any sort to the unexpended funds.

COMPENSATION Review by the City of Nashua of Professional Consultant'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
Professional Consultant to submit additional information. Unless the City of Nashua, in
its sole discretion, decides otherwise, the City of Nashua shall pay Professional Consultant
in full within 30 days of approval of the submitted monthly invoice forms and progress
reports.

COMPLIANCE WITH APPLICABLE LAWS Professional Consultant, 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. Professional Consultant 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, Professional Consultant agrees to the following
terms. Professional Consultant will not discriminate against any employee or applicant for
employment because of physical or mental handicap in regard to any position for which
the employee or applicant for employment is qualified. Professional Consultant 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,

GC 8 of 13

R-17-119
Endorsers: Alderman-at-Large Brian S. McCarthy
Alderman-at-Large Michael B. O’Brien, Sr.
Alderman-at-Large Lori Wilshire
Alderman Richard A. Dowd
Alderman June M. Caron
RELATIVE TO A BALLOT REFERENDUM TO ALLOW KENO WITHIN THE CITY OF NASHUA
° Personnel/Administrative Affairs Committee Recommends: Final Passage

R-17-120
Endorsers: Mayor Jim Donchess
Alderman Richard A. Dowd
Alderman-at-Large Michael B. O’Brien, Sr.
Alderman Tom Lopez
Alderman-at-Large Brian S. McCarthy
Alderman-at-Large Lori Wilshire
RELATIVE TO AN AGREEMENT FOR COUNSEL SERVICES CONCERNING POTENTIAL
OPIOID LITIGATION
° Finance Committee Recommends: Final Passage

R-17-121

Endorser: Mayor Jim Donchess

RELATIVE TO THE RE-APPROPRIATION OF FISCAL YEAR FY2018 ESCROWS
° Budget Review Committee Recommends: Final Passage

R-17-122
Endorsers: Mayor Jim Donchess
Alderman-at-Large Brian S. McCarthy
Alderwoman Mary Ann Melizzi-Golja
Alderman Tom Lopez
Alderman-at-Large Michael B. O’Brien, Sr.
Alderman-at-Large Lori Wilshire
Alderman Richard A. Dowd
ESTABLISHING A PERFORMING ARTS CENTER STEERING COMMITTEE
° Personnel/Administrative Affairs Committee Recommends: Final Passage as Amended

R-17-123
Endorsers: Mayor Jim Donchess
Alderwoman Mary Ann Melizzi-Golja
Alderman-at-Large Lori Wilshire
Alderman Richard A. Dowd
Alderman-at-Large Michael B. O’Brien, Sr.
Alderman Tom Lopez
Alderman-at-Large Brian S. McCarthy
ESTABLISHING A NASHUA RAIL TRANSIT COMMITTEE
° Personnel/Administrative Affairs Committee Recommends: Final Passage

UNFINISHED BUSINESS — ORDINANCES

O-17-040
Endorsers: Mayor Jim Donchess
Alderman-at-Large Michael B. O’Brien, Sr.
Alderwoman Mary Ann Melizzi-Golja
Alderman-at-Large Lori Wilshire
AUTHORIZING PAYMENT OF PROPERTY TAXES BY CREDIT OR DEBIT CARD
° Personnel/Administrative Affairs Committee Recommends: Final Passage

17.

18.

19.

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, Professional Consultant's attention is directed to
“Title 41“Public Contracts and Property Management” C.F.R. Subtitle B “Other
Provisions 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.

Professional Consultant 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 Professional Consultant under this
contract.

In connection with the performance of work under this contract, Professional Consultant
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.

Professional Consultant 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 Professional Consultant shall constitute a material breach
of the contract.

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

ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING Professional Consultant
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 shall 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 Professional Consultant 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,

GC 9 of 13

20.

21

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,
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 Professional Consultant 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 Professional Consultant's expense, by Professional Consultant to the City
of Nashua upon completion, termination, or cancellation of this contract. Alternatively, if
the City of Nashua provides its written approval to Professional Consultant, 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 Professional Consultant in the performance
of its obligations under this contract must be retained by Professional Consultant 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 Professional Consultant shall promptly remit and deliver the
materials, at Professional Consultant's expense, to the City of Nashua. Professional
Consultant shall not use, willingly allow or cause to have such materials used for any
purpose other than the performance of Professional Consultant's obligations under this
contract without the prior written consent of the City of Nashua.

. PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS Professional Consultant expressly

agrees that all documents ever submitted, filed, or deposited with the City of Nashua by
Professional Consultant (including those remitted to the City of Nashua by Professional
Consultant 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 Professional Consultant 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 Professional Consultant. The City of Nashua shall
have the right to reproduce any such materials.

Professional Consultant 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. Professional Consultant 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 Professional Consultant infringes any copyright or that any equipment,
material, or process (or any part thereof) specified by Professional Consultant infringes any
patent.

GC 10 of 13

22.

23.

24.

25.

26.

Professional Consultant 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,
products, or processes shall meet all the requirements and be subject to all the terms and
conditions of this contract. Notwithstanding any of the foregoing, any use of Architect’s
Instruments of Service without the professional involvement of Architect shall be at the
sole risk without liability to Architect.

FINAL ACCEPTANCE Upon completion of all work under the contract, Professional
Consultant 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 Professional Consultant in writing that
the whole of the work was completed on the date indicated in the notice or provide
Professional Consultant with a written list of work not completed. With respect to work
listed by the City of Nashua as incomplete, Professional Consultant 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 Professional Consultant 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. Professional Consultant 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 Professional Consultant 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. Professional Consultant 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 Professional Consultant. If any such
interest comes to the attention of Professional Consultant at any time, a full and complete
disclosure of the interest shall be immediately made in writing to the City of Nashua.
Professional Consultant 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. Professional
Consultant further warrants that no person having such an interest shall be employed in the
performance of this contract. If City of Nashua determines that a conflict exists and was

GC 11 of 13

27.

28.

29.

30.

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 Professional Consultant (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, Professional Consultant shall refund to
the City of Nashua any profits realized under this contract, and Professional Consultant
shall 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.

Professional Consultant warrants that no gratuities (including, but not limited to,
entertainment or gifts) were offered or given by Professional Consultant 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 Professional
Consultant, 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 Professional Consultant.

SURVIVAL OF RIGHTS AND OBLIGATIONS The rights and obligations of the parties that by
their nature survive termination or completion of this contract shall 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 Professional Consultant. 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.

GC 12 of 13

31. CHOICE OF LAW AND VENUE This contract shall be governed 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 13 of 13

Exhibit B
MARVEL

Schedule

Months

Task |Dec'21 Jan'22 Feb Mar Apr May

>
Preparatory Work ¢

+—— Kick-off Meeting

—
“a: ?° ¢ Ca
Initial Engagement { T
Lo
Concept Plans
brs 4

Follow up Engagement T 7

| Ds

Preferred Plan

Review by Client

. . Final Report Pre
Final Delivarable P p 4

t+—— Final Presentation

Bi-weekly Meetings (-@—@ —@— O@—_ O— © — ©— O— O— O—O>

Task Plan

Exhibit B

Task

1 Preparatory Work
Kick-off meeting

Existing Documents Collection & Review

MTG

Review Previous Infrastructure Asessments

Comparable Projects
Progress Meeting
Site Visit + Meeting

Market Analysis/Benchmarking/Funding Sources

Marvel F&T BJH Havey

Total

Approx. Hours

Marvel

Total

Fee

$5,000 $4,000 $5,000

$14,000

50

140

2 Intial Engagement
Stakeholder Identification and Contact
Process Overview Presentation-Zoom
Online survey #1
Pop-up
Public Meeting #1

Fee

$10,000

$10,000

90

90

3 Concept Plans
Program Options
Option Selection
Option Development
Cost Estimate

Fee

$20,000 $4,000 $5,000

$29,000

180

270

4 Follow Up Engagement
Process Overview Presentation-Zoom
Online survey #2
Pop-up
Board of Alderman Presentation
Public Meeting / Town Hall #2

Fee

$10,000

$10,000

90

90

5 Preferred Plan
Develop Preferred Plan
Cost Estimate
Proforma and Memo

Fee

$20,000 $4,000 $10,000 $10,000

$44,000

180

390

6 Final Deliverable
Final Presentation
Final Report

|Fee

$5,000 $3,075

$8,075

50

70

[Total Fee

$70,000 $15,075 $15,000 $15,000

$115,075

Reimbursables

Meetings

Virtual

$3,219 $1,206 $500

Responsibilities
primary role
supporting role

$4,925
$120,000

City of Nashua

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

October 27, 2021
Memo #22-184

TO: Mayor Donchess
Finance Committee

SUBJECT: Architectural Design/Streetscaping of West Pear! Street in the amount not to exceed
$100,000 funded from accounts 53142 Consulting Services/Downtown Improvement
Committee & Economic Development Escrow

Please see attached communications from Tim Cummings, Director of Economic Development, dated
October 25, 2021 for project specific details related to this purchase. Below please find a summary of the
purchase approval request:

Item: Phase 1 & 2 of the Architectural Design/Streetscaping along West Pear! Street to
include Preliminary Designs and Final Design work

Value: not to exceed $100,000

Vendor: Icon Architecture

Department: 183 Economic Development
Source Fund: 53142 Consulting Services/ Downtown Improvement Committee & Economic
Development Escrow Funds

Ordinance: Pursuant to NRO § 5-83 Professional Services (A) In the purchase of accounting,
architectural, auditing, engineering, legal, medical and ambulance services and
purchases of independent professional consultant services for personnel, data
processing, actuarial, planning, management and other comparable purchases
competitive bidding shall not be required.

We recommend this bid to be awarded to the lowest total cost vendor who meets the specified
requirements. The Economic Development Division, and the Purchasing Department respectfully request
your approval of this contract.

Regards,
Kelly Parkinson

Purchasing Manager

Ce: T Cummings
J Graziano