Finance Committee

City of Nashua Central Purchasing 229 Main Street Nashua NH 03060 603-589-3330 Fax: 603-589-3344 May 26, 2016 Memo #16-146 TO: MAYOR DONCHESS FINANCE COMMITTEE SUBJECT: CITY ARTS NASHUA CONTRACT (VALUE $20,000) DEPARTMENT: 109 CIVIC AND COMMUNITY ACTIVITIES; FUND: GENERAL FUND ACCOUNT CLASSIFICATION: 56 HUMAN SERVICE AGENCIES - DOWNTOWN IMPROVEMENT FUND Please see attached communication from Sarah Marchant, Community Development Director, dated April 15, 2016 for information related to this purchase request. Pursuant to § 5-84 Special Purchase Procedures A. (5) The competitive bidding process shall not apply to the following special purchases. Purchases from a sole manufacturer, where it is determined to be more efficient and economical to reduce costs of maintenance of additional repair parts, supplies or services. Sarah Marchant, Director of Community Development and the Purchasing Department recommend the award of this contract to City Arts Nashua of Nashua, NH in the amount of $20,000. Respectfully, Dan Kooken Purchasing Manager Ce: S. Marchant J. Graziano  Community Development 589-3095 ©ff [ N l a s l h y s i Planning and Zoning 589-3090 Building Safety 589-3080 Community Development Division Code Enforcement 589-3100 Urban Programs 589-3085 City Hall, 229 Main Street, PO Box 2019 Parking 880-0100 Nashua, New Hampshire 03061-2019 Transportation 880-0100 www.nashuanh.gov FAX 589-3119 Date: April 15,2016 To: Jim Donchess, Mayor Finance Committee From: Sarah Marchant, Director of Community Development Subject: City Arts Nashua Downtown Public Art Contract The Community Development Division requests the approval of a $20,000 contract with City Arts Nashua to continue ART ventures, Nashua's Downtown public art program. This contract with a local non-profit organization will allow the City to continue to implement projects that attract people to Downtown Nashua with funding from the Downtown Improvements Committee Expendable Trust Fund. The purpose of ARTventurcs Nashua is to increase awareness and participation in Downtown through art. As part of the first contract, artist Jerry Beck was contracted by City Arts Nashua to facilitate the creation of temporary art by the public, especially children. Mr. Beck, who has a 33- year history in this unique field, worked with about 400 students to create floats for the Gate City Fall Festival parade, to create sculptures that were unveiled at the Holiday Stroll and to write poems for the Totem Poems project. These students then came to Main Street to be in the parade, to see their sculpture in the Holiday Stroll or to celebrate their poems, and they bring with them parents, grandparents, neighbors and friends. Their teachers, school administration and in several cases their Board of Directors also have a raised awareness of Downtown being a busy, fun place to be. If awarded this contract, City Arts Nashua will again contract with Mr. Beck to continue the program. One multi-facet community public art project will be completed, with the resulting ten temporary artworks installed on the sidewalks and/or public spaces within Downtown Nashua. The program will utilize an inclusive approach to include community members, including local artists and children, with the creation of the art. City Arts Nashua was selected for the first contract, and again for this contract, as a sole source vendor in accordance with NRO Sec 5-84(A)(5). The organization has a long history of organizing and encouraging successful public art events throughout Nashua. City Arts Nashua and Jerry Beck contributed many additional hours during the first contract, laying the groundwork and developing the relationships for a sustainable program. Continuing this program with City Arts Nashua, given the successful completion of the first contract and their significant relationship building, is reasonable and expedient. The contract has been reviewed by the Legal and Risk Departments. It is expected the work will take place over the summer and into the Fall, concluding in December 2016.  CONTRACT FOR PROFESSIONAL SERVICES A CONTRACT BETWEEN THE CITY OF NASHUA AND C 1 T Y Ä R T S NASHUA, INC. NAME AND TITLE OF SERVICE PROVIDER PO Box 1603, NASHUA, N H 03060-1603 ADDRESS OF SERVICE PROVIDER WHEREAS, the City of Nashua, a political subdivision of the State of New Hampshire, from time to time requires the services of independent contractors; and WHEREAS, it is deemed that the services of Contractor herein specified are both necessary and desirable and in the best interests of the City of Nashua; and WHEREAS, Contractor represents they are duly qualified, equipped, staffed, ready, willing and able to perform and render the services hereinafter described; Now, THEREFORE, in consideration of the agreements herein made, the parties mutually agree as follows: 1. DOCUMENTS INCORPORATED. The following exhibits are by this reference incorporated herein and are made part of this contract: Exhibit A--General Conditions for Contracts Exhibit B-Scope of Services Exhibit C--Contract Time and Fee Schedule The Contract represents the entire and integrated agreement between the parties and supersedes prior negotiations, proposals, representations or agreements, either written or oral Any other documents which are not listed in this Article are not part of the Contract. 2. WORK TO BE PERFORMED. Except as otherwise provided in this contract, Contractor shall furnish all services, equipment, and materials and shall perform all operations necessary and required to carry out and perform in accordance with the terms and conditions of the contract the work described in Exhibit B. AG - 1 of 2 3. PERIOD OF PERFORMANCE. Contractor shall perform and complete all work within the time periods set forth in Exhibit C. The time periods set forth in Exhibit C may only be altered by the parties by a written agreement to extend the period of performance or by termination in accordance with the terms of the contract. Contractor shall begin performance upon receipt of a Notice to Proceed and a valid purchase order from the City. 4. COMPENSATION. Service Provider agrees to perform the work for a total lump sum cost of Twenty Thousand Dollars and Zero Cents ($ 20,000.00) which, unless otherwise provided in this contract, shall be paid in accordance with the provisions of Exhibit C. Unless otherwise provided in Exhibit C or unless Service Provider has received a written exemption from the City, Service Provider shall submit monthly requests for payment for services performed under this agreement. Requests for payment shall be submitted no later than fifteen (15) days after the end of each month and must include a detailed summary of the expenditures reported in a form that supports the approved budget. Specifically, Service Provider agrees to provide the following with each request for payment: 1. Appropriate invoice forms The forms shall include the project purchase order number, a listing of percent task complete for which payment is sought. 2. A progress report. The report shall include, for each monthly reporting period, a description of the work accomplished, problems experienced, upcoming work, any extra work carried out, and a schedule showing expenditures billed for the period, cumulative total expenditures billed and paid to date under the contract, and a comparison of cumulative total expenditures billed and paid to the approved budget. The City will pay for work satisfactorily completed by Service Provider. The City will pay Service Provider within 30 days of approval by the City of the submitted invoice forms and progress reports. The City will make no payments until the invoice forms and progress reports have been submitted and approved. 5. COMPENSATION. Contractor agrees to perform the work as outlined in Exhibit B and shall be paid in accordance with the provisions of Exhibit C. 6. EFFECTIVE DATE OF CONTRACT. This contract shall not become effective until and unless approved by the City of Nashua. 7. NOTICES. All 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: City Representative Service Provider Representative Sarah Marchant Katherine Hersh Community Development Director City Arts Nashua marchants@nahuanh.gov Kathyhersh1@gmail.com 603.589.3075 603-315-0112 Any notice required or permitted under this contract, if sent by United States mail, shall be deemed to be given to and received by the addressee thereof on the third business day after being deposited in the mail. The City or Contractor may change the address or representative by giving written notice to the other party. IN WITNESS WHEREOF, the parties hereto have caused this contract to be signed and intend to be legally bound thereby. AG - 2 of 2 City of Nashua, NH (signature) (signature) James Donchess, Mayor Katherine Hersh, President (Printed Name and Title) (Printed Name and Title) Date Date AG - 3 of 2  EXHIBIT A GENERAL CONDITIONS 1. DEFINITIONS. Unless otherwise required by the context, "Contractor" includes any of the Contractor's consultants, subconsultants, contractors, and subcontractors. 2. INDEPENDENT CONTRACTOR STATUS AND PROVISION OF WORKERS' COMPENSATION COVERAGE. T h e parties agree that Contractor shall have the status of and shall perform all work under this contract as an independent contractor, maintaining control over all its consultants, subconsultants, contractors, or subcontractors. The only contractual relationship created by this contract is between the City and Contractor, and nothing in this contract shall create any contractual relationship between the City and Contractor's consultants, subconsultants, contractors, or subcontractors. The parties also agree that Contractor is not a City employee and that there shall be no: (1) Withholding of income taxes by the City: (2) Industrial insurance coverage provided by the City; (3) Participation in group insurance plans which may be available to employees of the City; (4) Participation or contributions by either the independent contractor or the City to the public employee's retirement system; (5) Accumulation of vacation leave or sick leave provided by the City; (6) Unemployment compensation coverage provided by the City. Contractor agrees, if not exempt, to maintain required workers' compensation coverage throughout the entire term of the contract. If Contractor does not maintain coverage throughout the entire term of the contract, Contractor agrees that City may, at any time the coverage is not maintained by Contractor, order the Contractor to stop work, suspend the contract, or terminate the contract. For each six-month period this contract is in effect, Contractor agrees, prior to the expiration of the six-month period, to provide another written request to its insurer for the provision of a certificate and notice of lapse in or nonpayment of coverage. If Contractor does not make the request or does not provide the certificate before the expiration of the six-month period, Contractor agrees that City may order the Contractor to stop work, suspend the contract, or terminate the contract. 3. STANDARD OF CARE. Contractor shall be responsible for the professional quality, technical accuracy, timely completion, and coordination of all work performed under this contract. 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 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 may have, 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 Contractor's failure to perform in accordance with this standard of care. Any approval by the City of any products or services furnished or used by Contractor shall not in any way relieve Contractor of the responsibility for professional and technical accuracy and adequacy of its work. City review, approval, or acceptance of, or payment for any of Contractor's work under this contract shall not operate as a waiver of any of the City's rights or causes of action under this contract, and Contractor shall be and remain liable in accordance with the terms of the contract and applicable law. Contractor shall furnish competent and skilled personnel to perform the work under this contract. The City reserves the right to approve key personnel assigned by Contractor to perform work under this contract Approved key personnel shall not be taken off of the project by Contractor without the prior written approval of the City, except in the event of termination of employment. Contractor shall, if requested to do so by the City, remove from the job any personnel whom the City determines to be incompetent, dishonest, or uncooperative. GC - 1 of 8 CITY REPRESENTATIVE. The City may designate a City representative for this contract. If designated, all notices, project materials, requests by Contractor, invoice forms, and progress reports, and any other communication about the contract shall be addressed or be delivered to the City Representative. CHANGES TO SCOPE OF WORK. The City 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 Contractor's performance under the contract. Contractor shall provide to the City 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 to be able to adequately analyze the proposal. The City will then determine in writing if Contractor should proceed with any or all of the proposed change. If the change causes an increase or a decrease in 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 Contractor for adjustment under this clause shall be asserted in writing within 30 days of the date the City notified Contractor of the change. When Contractor seeks changes, Contractor shall, before any work commences, estimate their effect on the cost of the contract and on its schedule and notify the City 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 to be able to adequately analyze the proposal. The City will then determine in writing if Contractor should proceed with any or all of the proposed change. Except as provided in this paragraph, Contractor shall implement no change unless the City in writing approves the change. Unless otherwise agreed to in writing, the provisions of this contract shall apply to all changes. The City may provide verbal approval of a change when the City, 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 approval shall not be compensated and is, at the City's election, sufficient reason for contract termination. CITY COOPERATION. The City agrees that its personnel will cooperate with Contractor in the performance of its work under this contract and that such personnel will be available to Contractor for consultation at reasonable times and after being given sufficient advance notice that will prevent conflict with their other responsibilities. The City also agrees to provide Contractor with access to City records in a reasonable time and manner and to schedule items that require action by the Finance Committee in a timely manner. The City and Contractor also agree to attend all meetings called by the City or Contractor to discuss the work under the Contract, and that Contractor may elect to conduct and record such meetings and shall later distribute prepared minutes of the meeting to the City. DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES. C o n t r a c t o r warrants that it has examined all contract documents, has brought all conflicts, errors, discrepancies, and ambiguities to the attention of the City in writing, and has concluded that the City's resolution of each matter is satisfactory to Contractor. All future questions Contractor may have concerning interpretation or clarification of this contract shall be submitted in writing to the City within 10 calendar days of their arising. The writing shall state clearly and in full detail the basis for Contractor's question or position. The City representative shall render a decision within 15 calendar days. The City's decision on the matter is final. Any work affected by a conflict, error, omission, or discrepancy which has been performed by Contractor prior to having received the City's resolution shall be at Contractor's risk and expense. At all times, 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. Contractor is responsible for requesting clarification or interpretation and is solely liable for any cost or expense arising from its failure to do so. GC - 2 of 8 8. TERMINATION OF CONTRACT A. TERMINATION, ABANDONMENT, OR SUSPENSION AT WILL. The City, in its sole discretion, shall have the right to terminate, abandon, or suspend all or part of the project and contract at will. If the City chooses to terminate, abandon, or suspend all or part of the project, it shall provide Contractor 10 day's written notice of its intent to do so. If 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, 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 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 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 to resume performance. In the event of a termination, abandonment, or suspension at will, Contractor shall receive all amounts due and not previously paid to 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 on 10 calendar day's written notice to Contractor in the event of a failure by Contractor to adhere to all the terms and conditions of the contract or for failure to satisfactorily, in the sole opinion of the City, pursue the project or to complete work in a timely and professional manner. Contractor shall be given an opportunity for consultation with the City prior to the effective date of the termination. Contractor may terminate the contract on 10 calendar days written notice if, through no fault of Contractor, the City fails to pay Contractor for 30 days after the date of approval of any submitted invoice forms and progress reports In the event of a termination for cause, Contractor shall receive all amounts due and not previously paid to 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 by reasons of Contractor's failure. Contractor shall not be relieved of liability to the City for damages sustained from the failure, and the City may withhold any payment to the Contractor until such time as the exact amount of damages due to the City is determined. All claims for payment by the Contractor must be submitted to the City within 30 days of the effective date of the notice of termination If after termination for the failure of Contractor to adhere to all the terms and conditions of the contract or for failure to satisfactorily, in the sole opinion of the City, pursue the project or to complete work in a timely and professional manner, it is determined that Contractor had not so failed, the termination shall be deemed to have been a termination at will In that event, the City shall make an equitable adjustment in the compensation GC - 3 of 8  paid to Contractor. The adjustment shall include a reasonable profit for services or other work performed up to the effective date of termination less all previous payments. C. GENERAL PROVISIONS FOR TERMINATION. Upon termination of the contract, the City may take over the work and prosecute it to completion by agreement with another party or otherwise. In the event Contractor shall cease conducting business, the City shall have the right to solicit applications for employment from any employee of the Contractor assigned to the performance of the contract. Neither party shall be considered in default of the performance of its obliga ions 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 Contractor's principals, officers, employees, agents, subcontractors, consultants, vendors, or suppliers are expressly recognized to be within Contractor's control. 9. DISPUTE RESOLUTION. Any dispute not within the scope of section 7 and section 9 shall be resolved under this paragraph. 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 Representative and a Contractor representative. At all times, 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. If the dispute is not resolved within 30 days, either party may request that the dispute be submitted to the Economic Development Director for final resolution. The decision of the Economic Development Director shall be final and binding on the parties. If either party is dissatisfied with the decision of the Economic Development Director, that party may immediately terminate the contract under this paragraph, with Contractor being entitled to compensation for work actually and satisfactorily performed up to the time of the termination and the City being entitled to all contract materials in accordance with paragraph 17, and compensation for any additional damages or expenses incurred in completing the work under the contract, including, without limitation, the costs of-securing the services of other independent contractors. 10. No DAMAGES FOR DELAY. Apart from a written extension of time, no payment, compensation, or adjustment of any kind shall be made to Contractor for damages because of hindrances or delays in the progress of the work from any cause, and Contractor agrees to accept in full satisfaction of such hindrances and delays any extension of time that the City may provide. 11. INSURANCE. Contractor shall carry and maintain in effect during the performance of services under this contract: o Workers' Compensation Coverage in compliance with the State of New Hampshire statutes, $ 100,000/$500,000/$100,000, • General Liability insurance in the amount of $1,000,000 per occurrence. 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 Contractor are intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by Contractor under this contract. The City of Nashua shall not maintain any insurance on behalf of Contractor. Subcontractors are subject to the same insurance requirements as Contractor and it shall be the Contractor's responsibility to ensure compliance of this requirement. Contractor will provide the City with certificates of insurance for coverage as listed below and endorsements affecting coverage required by the contract within ten (10) calendar days after the City issues the notice of award. The City requires thirty (30) days written notice of cancellation or GC - 4 of 8  material change in coverage. The certificates and endorsements for each insurance policy are to be signed by a person authorized by the insurer and who is licensed by the State of New Hampshire. Employers' Liability policies must name the City of Nashua as an additional insured and reflect on the certificate of insurance. Contractor is responsible for filing updated Certificates of Insurance with the City of Nashua's Risk Management Department during the life of the contract. A. All deductibles and self-insured retentions shall be fully disclosed in the certificates of insurance. B. If aggregate limits of less than $1,000,000 are imposed on bodily injury and property damage, the Contractor must maintain umbrella liability insurance of at least $1,000,000. All aggregates must be fully disclosed on the required certificate of insurance. C. The specified insurance requirements do not relieve Contractor of its responsibility or limit the amount of its liability to the City or other persons, and Contractor is encouraged to purchase such additional insurance, as it deems necessary. D. Contractor is responsible for and required to remedy all damage or loss to any property, including property of the City, caused in whole or in part by Contractor or anyone employed, directed, or supervised by Contractor. Contractor is responsible for and required to remedy all damage or loss to any property, including property of the City, caused in whole or part by Contractor or anyone employed, directed, or supervised by Contractor. 12. INDEMNIFICATION. Regardless of the coverage provided by any insurance, Contractor agrees to indemnify and shall defend and hold harmless the City, its agents, officials, employees and authorized representatives and their employees from and against any and all suits, causes of action, legal or administrative proceedings, arbitrations, claims, demands, damages, liabilities, interest, attorneys' 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 Contractor. Contractor's indemnity, defense 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. 13. FISCAL CONTINGENCY. All payments under this contract are contingent upon the availability to the City of the necessary funds. This contract shall terminate and the City's obligations under it shall be extinguished at the end of any fiscal year in which the City fails to appropriate monies for the ensuing fiscal year sufficient for the performance of this contract. Nothing in this contract shall be construed to provide Contractor with a right of payment over any other entity. Any funds obligated by the City under this contract that are not paid to Contractor shall automatically revert to the City's discretionary control upon the completion, termination, or cancellation of the agreement. The City shall not have any obligation to re-award or to provide, in any manner, the unexpended funds to Contractor. Contractor shall have no claim of any sort to the unexpended funds. 14. COMPENSATION. The City shall pay Contractor as outlined in Exhibit C. 15. COMPLIANCE WITH APPLICABLE LAWS. 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. 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 in writing of any changes to the same relating to or affecting this contract, and shall submit detailed GC - 5 of 8  documentation of any effect of the change in terms of both time and cost of performing the contract. 16. ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING. Contractor shall not assign, transfer, delegate, or subcontract any rights, obligations, or duties under this contract without the prior written consent of the City. Any such assignment, transfer, delegation, or subcontracting without the prior written consent of the City is void. Any consent of the City 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. 17. 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 Contractor in the performance of its obligations under this contract shall be the exclusive property of the City and all such materials shall be remitted and delivered, at Contractor's expense, by Contractor to the City upon completion, termination, or cancellation of this contract. Alternatively, if the City provides its written approval to 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 Contractor in the performance of its obligations under this contract must be retained by 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, in writing, requests any or all of the materials, then Contractor shall promptly remit and deliver the materials, at Contractor's expense, to the City. Contractor shall not use, willingly allow or cause to have such materials used for any purpose other than the performance of Contractor's obligations under this contract without the prior written consent of the City. 18. PUBLIC RECORDS LAW. Contractor expressly agrees that all documents ever submitted, filed, or deposited with the City by Contractor 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. 19. COPYRIGHTS AND PATENTS. 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 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 Contractor. The City shall have the right to reproduce any such materials. 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 or any of its officers or employees, in either their official or individual capacity, for violations of or infringement of the copyright or patent laws of the United States or of any other nation. Contractor agrees to indemnify, to defend, and to hold harmless the City, 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 Contractor infringes any copyright or that any equipment, material, or process (or any part thereof) specified by Contractor infringes any patent. 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 GC - 6 of 8  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. 20. FINAL ACCEPTANCE. Upon completion of all work under the contract, Contractor shall notify the City in writing of the date of the completion of the work and request confirmation of the completion from the City. Upon receipt of the notice, the City shall confirm to Contractor in writing that the whole of the work was completed on the date indicated in the notice or provide Contractor with a written list of work not completed. With respect to work listed by the City as incomplete, 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 shall be the date upon which the Economic Development Project Coordinator or other designated official accepts and approves the notice of completion. 21. TAXES. 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. Contractor hereby indemnifies and holds harmless the City from any liability on account of any and all such taxes, levies, duties, assessments, and deductions. 22. NON-WAIVER OF TERMS AND CONDITIONS. None of the terms and conditions of this contract shall be considered waived by the City. 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 in a written waiver. 23. 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. 24. PROHIBITED INTERESTS. Contractor shall not allow any officer or employee of the City to have any indirect or direct interest in this contract or the proceeds of this contract. Contractor warrants that no officer or employee of the City has any direct or indirect interest, whether contractual, noncontractual, financial or otherwise, in this contract or in the business of Contractor If any such interest comes to the attention of Contractor at any time, a full and complete disclosure of the interest shall be immediately made in writing to the City. 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. Contractor further warrants that no person having such an interest shall be employed in the performance of this contract. If City determines that a conflict exists and was not disclosed to the City, it may terminate the contract at will or for cause in accordance with paragraph 8. In the event 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 may terminate the contract at will or for cause in accordance with paragraph 8. Upon termination, Contractor shall refund to the City any profits realized under this contract, and Contractor shall be liable to the City for any costs incurred by the City in completing the work described in this contract. At the discretion of the City, these sanctions shall also be applicable to any such conviction obtained after the expiration or completion of the contract. Contractor warrants that no gratuities (including, but not limited to, entertainment or gifts) were offered or given by Contractor to any officer or employee of the City 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 determines that such GC - 7 of 8  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 under this contract or at law. 25. THIRD PARTY INTERESTS AND LIABILITIES. The City and 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 and Contractor. 26. 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. 27. 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. 28. MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT. This contract constitutes the entire contract between the City and 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. 29. CHOICE OF LAW AND VENUE. This contract shall be governed exclusively by the laws of the State of New Hampshire and any litigation shall be brought in a court located in the State of New Hampshire. GC - 8 of 8  EXHIBIT B TO THE CONTRACT BETWEEN THE CITY OF NASHUA AND CITY ARTS NASHUA, INC. SCOPE OF SERVICES City Arts Nashua will manage the Downtown Public Art Program ("Program"). The goal of the Program is to enhance downtown Nashua's attractiveness and viability and to increase awareness and appreciation of art. The Program will expand on the City's significant investment in new sidewalks and amenities to create dynamic, interesting places for people to see and enjoy. One multi-facet community public art project will be completed, with the resulting ten temporary artworks installed on the sidewalks and/or public spaces within Downtown Nashua. The program will utilize an inclusive approach to include community members, including ten local artists and children, with the creation of the art. City Arts Nashua will contract with an expert skilled at fostering the collaboration between local artists and community stakeholders to create unique public art displays. The location and duration of the public art installation will be subject to local ordinances that permit the encumbrance of public sidewalks and public spaces. Every effort will be made to install and maintain the art for the duration of its installation as part of the Program. However, unforeseen circumstances may require the early removal of one or more pieces of art. The City will be responsible for installing anchors for mounting the public art, to ensure that public infrastructure is not damaged. The City will consult City Arts Nashua regarding the design and location of the anchors. Exhibit B - 1 of 1  EXHIBIT C TO THE CONTRACT BETWEEN THE CITY OF NASHUA AND CITY ARTS NASHUA, INC. CONTRACT TIME AND FEE SCHEDULE 1. TIME OF PERFORMANCE The services of the Contractor are to commence upon the signing of this Contract by all parties and shall be undertaken and completed in such sequence as to assure their expeditious completion in the light of the purposes of this contract as described in Exhibit B, Scope of Services. 2. FEE SCHEDULE The Contractor will be paid $2,000 upon contract signing. The Contractor will provide detailed invoices not more than monthly and be compensated based on percent of project completion for a total of $20,000. Exhibit C - 1 of 1