Search

The City of Nashua will pay for work satisfactorily completed and accurately invoiced by Independent
Contractor within thirty (30) days from the time of approval by the City of Nashua.

5. Errective Date oF Contract. This contract shall Not become effective until the date of execution by the
city of Nashua.

6 Notices. Al] Notices, requests, or approvals required or permitted to be given under this contract

shall be in writing, shall be sent by hand delivery, overnight carrier, or by United States mail, postage
prepaid, aNd registered or certified, and shall be addressed to:

David Boucher, Superintendent
City of Nashua -Division of Public Works
Wastewater Treatment Facility
2 Sawmill Road
Nashua, NH 03060

Any Notice required or permitted uNder this contract, if seMt by United States mail, shall be deemed to
be given tO aNd receiyed by the addressee thereof on the third business day after being deposited in
the mail. The City of Nasua or INdepeNdeNt CoMtractor may change the address or representative by
giving writte" notice to the other party.

IN WiTNEss WHeREOF, the parties hereto have caused this coMtract to be signed and intend to be legally

bound thereby.

City of Nashua, NH (signature) Eastern Heat Pump & Mechanical (signature)

James W Donchess, Mayor Ko bad Fchers , WNC
(Printed Name and Title} (Printed Name and Title} ©

ers et eee Se _afefre
Date Date

AG3o0f3

Nn 7 nn PF WY PR

%

10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.

EXHIBIT A

TABLE OF CONTENTS
GENERAL CONDITIONS
DEFINITIONS

INDEPENDENT CONTRACTOR STATUS
STANDARD OF CARE

City OF NASHUA REPRESENTATIVE
CHANGES TO SCOPE OF WORK

City OF NASHUA COOPERATION

DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR
DISCREPANCIES

TERMINATION OF CONTRACT

DIsPUTE RESOLUTION

No DAMAGES FOR DELAY

INSURANCE

INDEMNIFICATION

FISCAL CONTINGENCY

COMPENSATION

COMPLIANCE WITH APPLICABLE LAWS
NONDISCRIMINATION

ENDORSEMENT

ASSIGNMENTS, TRANSFER, DELEGATION, OR SUBCONTRACTING
CiTy INSPECTION OF CONTRACT MATERIALS
DISPOSITION OF CONTRACT MATERIALS

PusLic RECORDS LAW, COPYRIGHTS, AND PATENTS
FINAL ACCEPTANCE

TAXES

NON-WAIVER OF TERMS AND CONDITIONS

RIGHTS AND REMEDIES

PROHIBITED INTERESTS

THIRD PARTY INTERESTS AND LIABILITIES

SURVIVAL OF RIGHTS AND OBLIGATIONS
SEVERABILITY

MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT

CHOICE OF LAW AND VENUE
GC 1 of 13

GC--2
GC--2
GC--2
GC--3
GC--3
GC--3

GC--4
GC--4
GC--6
GC--6
GC--7
GC--7
GC--8
GC--8
GC--8
GC--8
GC--9
GC--9
GC--9
GC--10
GC--10
GC--11
GC--11
GC--11
GC--11
GC--11
GC--12
GC--12
GC--12
GC--12
GC--13

Board of Aldermen — 12/12/17 Page 5
MOTION BY ALDERMAN DOWD FOR FINAL PASSAGE OF R-17-160
ON THE MOTION

Alderman Moriarty

| have some questions; I’m not sure who can answer them. Were there other organizations considered and
was this a competitive process to select this organization?

Mayor Donchess

| proposed the resolution, so yes, | at least considered other organizations. But Revive Recovery has
established itself as the most active and successful so far recovery organization in the city, and they also have
received a grant through the State via Harbor Homes, via the Partnership for Successful Living, so they
seemed like the natural and best alternative.

Alderman Moriarty

As it was not a competitive bid and there’s no documentation to justify a sole source award?

Mayor Donchess

No documentation to do what?

Alderman Moriarty

Justify a sole source award.

Mayor Donchess

There was no competitive bid. I’m not sure there is anyone else who could do this, but there was no
competitive bid.

Alderman Moriarty
Do they take Medicaid?

Mayor Donchess

They are qualifying to take Medicaid, but the reimbursement rate for a recovery coach service is very low, and
once they qualify to receive will not provide meaningful financial support.

Alderman Moriarty

So they currently don’t accept Medicaid?

Mayor Donchess

They have to qualify to receive and accept Medicaid, and | don’t think that process for them is completed at
this point.

Alderman Schoneman

| was not able to attend the Budget Review Committee when this was discussed, so if this was discussed at
that time, please forgive me. | fully support this; | think it’s a great idea. We need a recovery coach, it’s a

General Terms and Conditions

DEFINITIONS Unless otherwise required by the context, "Independent Contractor”, and its
successors, transferees and assignees (together “Independent Contractor”) includes any of the
Independent Contractor's consultants, sub consultants, contractors, and subcontractors

INDEPENDENT CONTRACTOR STATUS The parties agree that Independent Contractor shall have the
status of and shall perform all work under this contract as an Independent Contractor,
maintaining control over all its consultants, sub consultants, contractors, or subcontractors.
The only contractual relationship created by this contract is between the City of Nashua and
Independent Contractor, and nothing in this contract shall create any contractual relationship
between the City of Nashua and Independent Contractor's consultants, sub consultants,
contractors, or subcontractors. The parties also agree that Independent Contractor is not a
City of Nashua employee and that there shall be no:

(1) Withholding of income taxes by the City of Nashua:

(2) Industrial insurance coverage provided by the City of Nashua;

(3) Participation in group insurance plans which may be available to employees of
the City of Nashua;

(4) Participation or contributions by either the Independent Contractor or the City
of Nashua to the public employee’s retirement system;

(5) Accumulation of vacation leave or sick leave provided by the City of Nashua;

(6) Unemployment compensation coverage provided by the City of Nashua.

STANDARD OF CARE Independent Contractor shall be responsible for the professional quality,
technical accuracy, timely completion, and coordination of all work performed under this
contract. Independent Contractor warrants that all work shall be performed with the degree
of professional skill, care, diligence, and sound practices and judgment that are normally
exercised by recognized professional firms with respect to services of a similar nature. It shall
be the duty of Independent Contractor to assure at its own expense that all work is technically
sound and in conformance with all applicable federal, state, and local laws, statutes,
regulations, ordinances, orders, or other requirements. In addition to all other rights which
the City of Nashua may have, Independent Contractor shall, at its own expense and without
additional compensation, re-perform work to correct or revise any deficiencies, omissions, or
errors in the work or the product of the work or which result from Independent Contractor's
failure to perform in accordance with this standard of care. Any approval by the City of Nashua
of any products or services furnished or used by Independent Contractor shall not in any way
relieve Independent Contractor of the responsibility for professional and technical accuracy
and adequacy of its work. City of Nashua review, approval, or acceptance of, or payment for
any of Independent Contractor's work under this contract shall not operate as a waiver of any
of the City of Nashua's rights or causes of action under this contract, and Independent
Contractor shall be and remain liable in accordance with the terms of the contract and
applicable law.

Independent Contractor shall furnish competent and skilled personnel to perform the work
under this contract. The City of Nashua reserves the right to approve key personnel assigned
by Independent Contractor to perform work under this contract. Approved key personnel shall

GC 2 of 13

not be taken off of the project by Independent Contractor without the prior written approval
of the City of Nashua, except in the event of termination of employment. Independent
Contractor shall, if requested to do so by the City of Nashua, remove from the job any
personnel whom the City of Nashua determines to be incompetent, dishonest, or
uncooperative.

Cry OF NASHUA REPRESENTATIVE The City of Nashua may designate a City of Nashua representative
for this contract. If designated, all notices, project materials, requests by Independent
Contractor, and any other communication about the contract shall be addressed or be
delivered to the City of Nashua Representative.

CHANGES TO SCOPE OF WorK The City of Nashua may, at any time, by written order, make changes
to the general scope, character, or cost of this contract and in the services or work to be
performed, either increasing or decreasing the scope, character, or cost of Independent
Contractor's performance under the contract. Independent Contractor shall provide to the City
of Nashua within 10 calendar days, a written proposal for accomplishing the change. The
proposal for a change shall provide enough detail, including personnel hours for each sub-task
and cost breakdowns of tasks, for the City of Nashua to be able to adequately analyze the
proposal. The City of Nashua will then determine in writing if Independent Contractor should
proceed with any or all of the proposed change. If the change causes an increase or a decrease
in Independent Contractor's cost or time required for performance of the contract as a whole,
an equitable adjustment shall be made and the contract accordingly modified in writing. Any
claim of Independent Contractor for adjustment under this clause shall be asserted in writing
within 30 days of the date the City of Nashua notified Independent Contractor of the change.

When Independent Contractor seeks changes, Independent Contractor shall, before any work
commences, estimate their effect on the cost of the contract and on its schedule and notify
the City of Nashua in writing of the estimate. The proposal for a change shall provide enough
detail, including personnel hours for each sub-task and cost breakdowns of tasks, for the City
of Nashua to be able to adequately analyze the proposal. The City of Nashua will then
determine in writing if Independent Contractor should proceed with any or all of the proposed
change.

Except as provided in this paragraph, Independent Contractor shall implement no change
unless the City of Nashua in writing approves the change. Unless otherwise agreed to in
writing, the provisions of this contract shall apply to all changes. The City of Nashua may
provide verbal approval of a change when the City of Nashua, in its sole discretion, determines
that time is critical or public health and safety are of concern. Any verbal approval shall be
confirmed in writing as soon as practicable. Any change undertaken without prior City of
Nashua approval shall not be compensated and is, at the City of Nashua's election, sufficient
reason for contract termination.

CiTY OF NASHUA COOPERATION The City of Nashua agrees that its personnel will cooperate with
Independent Contractor in the performance of its work under this contract and that such
personnel will be available to Independent Contractor for consultation at reasonable times
and after being given sufficient advance notice that will prevent conflict with their other
responsibilities. The City of Nashua also agrees to provide Independent Contractor with access
to City of Nashua records in a reasonable time and manner and to schedule items that require

GC 3 of 13

action by the Board of Public Works and Finance Committee in a timely manner. The City of
Nashua and Independent Contractor also agree to attend all meetings called by the City of
Nashua or Independent Contractor to discuss the work under the Contract, and that
Independent Contractor may elect to conduct and record such meetings and shall later
distribute prepared minutes of the meeting to the City of Nashua.

DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES Independent Contractor
warrants that it has examined all contract documents, has brought all conflicts, errors,
discrepancies, and ambiguities to the attention of the City of Nashua in writing, and has
concluded that the City of Nashua's resolution of each matter is satisfactory to Independent
Contractor. All future questions Independent Contractor may have concerning interpretation
or clarification of this contract shall be submitted in writing to the City of Nashua within 10
calendar days of their arising. The writing shall state clearly and in full detail the basis for
Independent Contractor's question or position. The City of Nashua representative shall render
a decision within 15 calendar days. The City of Nashua's decision on the matter is final. Any
work affected by a conflict, error, omission, or discrepancy which has been performed by
Independent Contractor prior to having received the City of Nashua's resolution shall be at
Independent Contractor's risk and expense. At all times, Independent Contractor shall carry
on the work under this contract and maintain and complete work in accordance with the
requirements of the contract or determination of the City of Nashua. Independent Contractor
is responsible for requesting clarification or interpretation and is solely liable for any cost or
expense arising from its failure to do so.

TERMINATION OF CONTRACT

A. TERMINATION, ABANDONMENT, OR SUSPENSION AT WILL THE City of Nashua, in its sole discretion, shall
have the right to terminate, abandon, or suspend all or part of the project and contract at will.
lf the City of Nashua chooses to terminate, abandon, or suspend all or part of the project, it
Shall provide Independent Contractor 10 days’ written notice of its intent to do so.

lf all or part of the project is suspended for more than 90 days, the suspension shall be treated
as a termination at will of all or part of the project and contract.

Upon receipt of notice of termination, abandonment, or suspension at will, Independent
Contractor shall:

1. Immediately discontinue work on the date and to the extent specified in the notice.

2. Place no further orders or subcontracts for materials, services, or facilities, other than
as may be necessary or required for completion of such portion of work under the
contract that is not terminated.

3. Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the City of Nashua of all orders or subcontracts to the extent they
relate to the performance of work terminated, abandoned, or suspended under the
notice, assign to the City of Nashua any orders or subcontracts specified in the notice,
and revoke agreements specified in the notice.

4. Not resume work after the effective date of a notice of suspension until receipt of a
written notice from the City of Nashua to resume performance.

GC 4 of 13

In the event of a termination, abandonment, or suspension at will, Independent Contractor
Shall receive all amounts due and not previously paid to Independent Contractor for work
satisfactorily completed in accordance with the contract prior to the date of the notice and
compensation for work thereafter completed as specified in the notice. No amount shall be
allowed or paid for anticipated profit on unperformed services or other unperformed work.

B. TERMINATION FOR CAUSE This agreement may be terminated by the City of Nashua on 10
calendar day’s written notice to Independent Contractor in the event of a failure by
Independent Contractor to adhere to any or all the terms and conditions of the contract or for
failure to satisfactorily, in the sole opinion of the City of Nashua, to complete or make sufficient
progress on the work in a timely and professional manner. Independent Contractor shall be
given an opportunity for consultation with the City of Nashua prior to the effective date of the
termination. Independent Contractor may terminate the contract on 10 calendar days written
notice if, through no fault of Independent Contractor, the City of Nashua fails to pay
Independent Contractor for 45 days after the date of approval by the City of Nashua of any
Application for Payment.

Upon receipt of notice of termination for cause, Independent Contractor shall:

1. Immediately discontinue work on the date and to the extent specified in the notice.

2. Provide the City of Nashua with a list of all unperformed services.

3. Place no further orders or sub-contracts for materials, services, or facilities, other
than as may be necessary or required for completion of such portion of work under
the contract that is not terminated.

4. Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the City of Nashua of all orders or sub contracts to the extent they
relate to the performance of work terminated, abandoned, or suspended under the
notice, assign to the City of Nashua any orders or sub contracts specified in the
notice, and revoke agreements specified in the notice.

5. Not resume work after the effective date of a notice of termination unless and until
receipt of a written notice from the City of Nashua to resume performance.

In the event of a termination for cause, Independent Contractor shall receive all amounts due
and not previously paid to Independent Contractor for work satisfactorily completed in
accordance with the contract prior to the date of the notice, less all previous payments. No
amount shall be allowed or paid for anticipated profit on unperformed services or other
unperformed work. Any such payment may be adjusted to the extent of any additional costs
occasioned to the City of Nashua by reasons of Independent Contractor's failure. Independent
Contractor shall not be relieved of liability to the City of Nashua for damages sustained from
the failure, and the City of Nashua may withhold any payment to the Independent Contractor
until such time as the exact amount of damages due to the City of Nashua is determined. All
claims for payment by the Independent Contractor must be submitted to the City of Nashua
within 30 days of the effective date of the notice of termination.

lf after termination for the failure of Independent Contractor to adhere to any of the terms
and conditions of the contract or for failure to satisfactorily, in the sole opinion of the City of
Nashua, to complete or make sufficient progress on the work in a timely and professional

GC 5 of 13

10.

11.

manner, it is determined that Independent Contractor had not so failed, the termination shall
be deemed to have been a termination at will. In that event, the City of Nashua shall, if
necessary, make an adjustment in the compensation paid to Independent Contractor such that
Independent Contractor receives total compensation in the same amount as it would have
received in the event of a termination-at-will.

C. General Provisions for Termination Upon termination of the contract, the City of Nashua may
take over the work and prosecute it to completion by agreement with another party or
otherwise. In the event Independent Contractor shall cease conducting business, the City of
Nashua shall have the right to solicit applications for employment from any employee of the
Independent Contractor assigned to the performance of the contract.

Neither party shall be considered in default of the performance of its obligations hereunder to
the extent that performance of such obligations is prevented or delayed by any cause, existing
or future, which is beyond the reasonable control of such party. Delays arising from the actions
or inactions of one or more of Independent Contractor's principals, officers, employees,
agents, subcontractors, consultants, vendors, or suppliers are expressly recognized to be
within Independent Contractor's control.

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 between the City of Nashua Representative and an Independent
Contractor Representative. At all times, Independent Contractor shall carry on the work under
this contract and maintain and complete work in accordance with the requirements of the
contract or determination or direction of the City of Nashua. If the parties are unable to resolve
their dispute as described above within 30 days, if requested in writing by either the City of
Nashua or the Independent Contractor within 14 days after the 30 days described above,, the
parties shall attempt to resolve the dispute by entering into structured non-binding
negotiations with the assistance of a mediator on a without prejudice basis. The mediator shall
be appointed by agreement of the parties, which agreement shall not be unreasonably
withheld. If the parties cannot agree to a mediator within 30 days or the dispute cannot be
settled within a period of thirty (30) days with the mediator, 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.

No DAMAGES FOR DELAY Apart from a written extension of time, no payment, compensation, or
adjustment of any kind shall be made to Independent Contractor for damages because of
hindrances or delays in the progress of the work from any cause, and Independent Contractor
agrees to accept in full satisfaction of such hindrances and delays any extension of time that
the City of Nashua may provide.

INSURANCE Independent Contractor shall carry and maintain in effect during the performance
of services under this contract:

GC 6 of 13

> General Liability insurance in the amount of $1,000,000 per occurrence;
$2,000,000 aggregate;

> $1,000,000 Combined Single Limit Automobile Liability; *Coverage must include all
owned, non-owned and hired vehicles ; and

> Workers’ Compensation Coverage in compliance with the State of New — Hampshire
statutes, $100,000/$500,000/$ 100,000.

Independent Contractor shall maintain in effect at all times during the performance under
this contract all specified insurance coverage with insurers. None of the requirements as to
types and limits to be maintained by Independent Contractor are intended to and shall not
in any manner limit or qualify the liabilities and obligations assumed by Independent
Contractor under this contract. The City of Nashua shall not maintain any insurance on behalf
of Independent Contractor. Subcontractors are subject to the same insurance requirements
as Independent Contractor and it shall be the Independent Contractor’s responsibility to
ensure compliance of this requirement.

Independent Contractor will provide the City of Nashua with certificates of insurance for
coverage as listed below and endorsements affecting coverage required by the contract. The
City of Nashua requires thirty days written notice of cancellation or material change in
coverage. The certificates and endorsements for each insurance policy must be signed by a
person authorized by the insurer and who is licensed by the State of New Hampshire. General
Liability, Employers’ Liability and Auto Liability policies must name the City of Nashua as an
additional insured and reflect on the certificate of insurance. Independent Contractor is
responsible for filing updated certificates of insurance with the City of Nashua's Risk
Management Department during the life of the contract.

> All deductibles and self-insured retentions shall be fully disclosed in the
certificate(s) of insurance.

> If aggregate limits of less than $2,000,000 are imposed on bodily injury and
property damage, Independent Contractor must maintain umbrella liability insurance
of at least $1,000,000. All aggregates must be fully disclosed on the required certificate
of insurance.

> The specified insurance requirements do not relieve Independent Contractor of its
responsibilities or limit the amount of its liability to the City of Nashua or other
persons, and Independent Contractor is encouraged to purchase such additional
insurance, as it deems necessary.

> The insurance provided herein is primary, and no insurance held or owned by the
City of Nashua shall be called upon to contribute to a loss.

> Independent Contractor is responsible for and required to remedy all damage or
loss to any property, including property of the City of Nashua, caused in whole or
part by Independent Contractor or anyone employed, directed, or supervised by
Independent Contractor.

12. INDEMNIFICATION Regardless of any coverage provided by any insurance, Independent Contractor
agrees to indemnify and hold harmless the City of Nashua, its agents, officials, employees and
authorized representatives and their employees from and against any and all suits, causes of

GC 7 of 13

13.

14.

15.

16.

action, legal or administrative proceedings, arbitrations, claims, demands, damages, liabilities,
interest, attorney’s fees, costs and expenses of any kind or nature in any manner caused,
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 Independent Contractor or of anyone
acting under its direction or control or on its behalf in connection with or incidental to the
performance of this contract. Independent Contractor’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 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 shall have no claim of
any sort to the unexpended funds.

COMPENSATION Review by the City of Nashua of Independent Contractor's submitted invoice
forms 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
invoice forms.

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
employee or applicant for employment is qualified. Independent Contractor agrees to take
affirmative action to employ, advance in employment, or to otherwise treat qualified,

GC 8 of 13