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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.

In the event of a termination, abandonment, or suspension at will, Professional Engineer
shall receive all amounts due and not previously paid to Professional Engineer 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 Professional Engineer in the event of a failure by
Professional Engineer 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. Professional
Engineer shall be given an opportunity for consultation with the City of Nashua prior to
the effective date of the termination. Professional Engineer may terminate the contract
on 10 calendar days written notice if, through no fault of Professional Engineer, the City
of Nashua fails to pay Professional Engineer 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, Professional Engineer 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 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.

4. 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.

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, Professional Engineer shall receive all amounts

GC 5 of 14

due and not previously paid to Professional Engineer 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 Professional Engineer's
failure. Professional Engineer 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 Professional Engineer until such time as the exact amount of damages due to the City
of Nashua is determined. All claims for payment by the Professional Engineer must be
submitted to the City of Nashua within 30 days of the effective date of the notice of
termination.

If after termination for the failure of Professional Engineer 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 manner, it is determined that Professional Engineer 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 Professional
Engineer such that Professional Engineer 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 Professional Engineer shall cease conducting
business, the City of Nashua shall have the right to solicit applications for employment
from any employee of the Professional Engineer 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 Professional Engineer's
principals, officers, employees, agents, subcontractors, consultants, vendors, or suppliers
are expressly recognized to be within Professional Engineer'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 a Professional Engineer Representative. At all times, Professional
Engineer 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

GC 6 of 14

10.

1]

days, if requested in writing by either the City of Nashua or the Professional Engineer
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 Professional Engineer for
damages because of hindrances or delays in the progress of the work from any cause, and
Professional Engineer agrees to accept in full satisfaction of such hindrances and delays
any extension of time that the City of Nashua may provide.

. INSURANCE. Professional Engineer shall carry and maintain in effect during the

performance of services under this contract:

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

$2,000,000 ageregate;
> $1,000,000 Combined Single Limit Automobile Liability;
*Cov i ~ e i Vv

> $5,000,000 Profession Liability;
> and Workers’ Compensation Coverage in compliance with the State of New
Hampshire statutes, $100,000/$500,000/$100,000.

Professional Engineer 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 Professional Engineer are intended to and shall
not in any manner limit or qualify the liabilities and obligations assumed by Professional
Engineer under this contract. The City of Nashua shall not maintain any insurance on
behalf of Professional Engineer. Subcontractors are subject to the same General Liability,
Automobile Liability and Workers’ Compensation insurance requirements as the
Professional Engineer. Those subcontractors involved in design and implementation of
electrical/mechanical systems at the site shall also maintain Professional Liability
insurance. Jt shall be the Professional Engineer’s responsibility to ensure compliance of
these requirements.

Professional Engineer will provide the City of Nashua with certificates of insurance for
coverage as listed below and endorsements affecting coverage required by the contract
within ten calendar days after the City of Nashua issues the notice of award. 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 and Auto Liability policies must name the City of Nashua as an additional

GC 7 of 14

insured and reflect on the certificate of insurance. Professional Engineer 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.

> Ifaggregate limits of less than $2,000,000 are imposed on bodily injury and
property damage, Professional Engineer 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 Professional Engineer of its
responsibilities or limit the amount of its liability to the City of Nashua or other
persons, and Professional Engineer 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.

> Professional Engineer is responsible for and required to remedy all damage or loss
to any property, including property of the City of Nashua, caused by Professional
Engineer or anyone employed, directed, or supervised by Professional Engineer.

12. INDEMNIFICATION. Regardless of any coverage provided by any insurance, Professional

13.

Engineer 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 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 to the extent caused by any negligent act, error or omission, or
willful misconduct, whether active or passive, of Professional Engineer or of anyone
acting under its direction or control or on its behalf in connection with or incidental to the
performance of this contract. Professional Engineer’s indemnity and hold harmless
obligations, or portions thereof, shall not apply to liability caused by the 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 Engineer 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 Engineer 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 Engineer. Professional Engineer
shall have no claim of any sort to the unexpended funds.

GC 8 of 14

14. COMPENSATION. Review by the City of Nashua of Professional Engineer's submitted

15.

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

COMPLIANCE WITH APPLICABLE LAWS. Professional Engineer, at all times, shall use
reasonable care to 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 Engineer 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.

16. NONDISCRIMINATION. If applicable or required under any federal or state law, statute,

regulation, order, or other requirement, Professional Engineer agrees to the following
terms. Professional Engineer 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 Engineer agrees to
take affirmative action to employ, advance in employment, or to otherwise treat qualified,
handicapped individuals without discrimination based upon physical or mental handicap
in all employment practices, including but not limited to the following: employment,
upgrading, demotion, transfer, recruitment, advertising, layoff, termination, rates of pay,
or other forms of compensation and selection for training, including apprenticeship.

Without limitation of the foregoing, Professional Engineer'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 Engineer agrees to assist disadvantaged business enterprises in obtaining
business opportunities by identifying and encouraging disadvantaged suppliers,
consultants, and subconsultants to participate to the extent possible, consistent with their
qualification, quality of work, and obligation of Professional Engineer under this
contract.

In connection with the performance of work under this contract, Professional Engineer
agrees not to discriminate against any employee or applicant for employment because of

GC 9 of 14

17.

18.

19.

20.

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 Engineer 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 Engineer shall constitute a material breach of
the contract.

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

ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING. Professional Engineer
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 Engineer 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, Corporation Counsel, and, if applicable, the
Comptroller General of the United States, or any authorized representative of those
entities,

DISPOSITION OF CONTRACT MATERIALS. Any books, reports, studies, photographs,
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 Engineer 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 Engineer's expense, by Professional Engineer 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
Engineer, 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 Engineer

GC 10 of 14

21.

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

PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS. Professional Engineer expressly
agrees that all documents ever submitted, filed, or deposited with the City of Nashua by
Professional Engineer (including those remitted to the City of Nashua by Professional
Engineer 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 Engineer 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 Engineer. The City of Nashua
shall have the right to reproduce any such materials.

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

Professional Engineer 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.

22. FINAL ACCEPTANCE. Upon completion of all work under the contract, Professional

GC 11 of 14

23.

24.

25.

Engineer 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 Engineer in writing that
the whole of the work was completed on the date indicated in the notice or provide
Professional Engineer with a written list of work not completed. With respect to work
listed by the City of Nashua as incomplete, Professional Engineer 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 Engineer 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 Engineer 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, nghts, and remedies otherwise imposed or available by law.

. PROHIBITED INTERESTS. Professional Engineer 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 Engineer warrants that no officer or employee of the City of
Nashua has any direct or indirect interest, whether contractual, non-contractual, financial
or otherwise, in this contract or in the business of Professional Engineer. If any such
interest comes to the attention of Professional Engineer at any time, a full and complete
disclosure of the interest shail be immediately made in wniting to the City of Nashua.
Professional Engineer 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 Engineer 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 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 Engineer (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 Engineer shall refund to

GC 12 of 14

27.

28.

29,

30.

31.

the City of Nashua any profits realized under this contract, and Professional Engineer
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 Engineer warrants that no gratuities (including, but not limited to,
entertainment or gifts) were offered or given by Professional Engineer 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
Engineer, 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 Engineer.

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

CHOICE OF LAW AND VENUE. This contract shall be 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

GC 13 of 14

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.
32. CLIENT RESPONSIBILITIES

1. To contract with Mavel Americas, Inc. in a timely manner that allows for sufficient
time to engineer and permit the project and for delivery of the TGC system to the
project site.

2. Provide access to the project site and to the City’s records concerning the Jackson Mills
Hydroelectric Project; plus the City’s GIS and land map records showing existing
above and below ground utilities, property lines, and permanent easements and right-of-
way at and adjacent to the project site.

3. The City is responsible for all permitting fees for the project.

4. Assistance in obtaining any temporary easements.

GC 14 of 14