Search

DM FWD

ge

10.
Li.
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

CONSULTANT 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

PUBLIC 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 i of 11

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

1,

General Terms and Conditions

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

CONSULTANT STATUS The parties agree that Consultant shall have the status of and shall
perform all work under this contract as a Consultant, 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 Consultant, and nothing in this contract shall create
any contractual relationship between the City of Nashua and Consultant's consultants, sub
consultants, contractors, or subcontractors. The parties also agree that Consultant 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 Consultant 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 Consultant shall be responsible for the professional quality, technical
accuracy, timely completion, and coordination of all work performed under this. contract.
Consultant 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 Consultant
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, Consultant 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
Consultant'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 Consultant shall not in any way
relieve Consultant 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 Consultant'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 Consultant shall be and remain liable in accordance with
the terms of the contract and applicable law.

Consultant 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 Consultant to
perform work under this contract. Approved key personnel shall not be taken off of the project
by Consultant without the prior written approval of the City of Nashua, except in the event of
termination of employment. Consultant 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.

CITY 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

GC 2 of 11

Consultant, 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 Consultant's
performance under the contract. Consultant 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 Consultant should proceed with any or all of the proposed change. If
the change causes an increase or a decrease in Consultant'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 Consultant for adjustment under this clause shall be asserted in
writing within 30 days of the date the City of Nashua notified Consultant of the change.

When Consultant seeks changes, Consultant 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 Consultant should
proceed with any or all of the proposed change.

Except as provided in this paragraph, Consultant 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 Consultant in the performance of its work under this contract and that such personnel will be
available to Consultant 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 Consultant with access to City of Nashua records in a reasonable time and
manner and to schedule items that require action by the Board of Public Works and Finance
Committee in a timely manner. The City of Nashua and Consultant also agree to attend all
meetings called by the City of Nashua or Consultant to discuss the work under the Contract, and
that Consultant 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
Consultant 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 Consultant. All
future questions Consultant 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 Consultant'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 1s final. Any work affected by a conflict, error, omission, or
discrepancy which has been performed by Consultant prior to having received the City of
Nashua's resolution shall be at Consultant's risk and expense. At all times, Consultant 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. Consultant is responsible for

GC 3 of 11

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. If the City of Nashua chooses to terminate, abandon, or suspend all or part of the
project, it shall provide Consultant 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, Consultant shall:

1. Immediately discontinue work on the date and to the extent specified in the notice.
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, Consultant shall receive all
amounts due and not previously paid to Consultant 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 Consultant in the event of a failure by Consultant 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. Consultant shall be given an opportunity for consultation with the City of
Nashua prior to the effective date of the termination. Consultant may terminate the contract on
10 calendar days written notice if, through no fault of Consultant, the City of Nashua fails to pay
Consultant 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, Consultant 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,

GC 4 of i1

10.

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, Consultant shall receive all amounts due and not
previously paid to Consultant 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
Consultant's failure. Consultant 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
Consultant until such time as the exact amount of damages due to the City of Nashua is
determined, All claims for payment by the Consultant 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 Consultant 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
Consultant 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 Consultant such that Consultant 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 Consultant shall cease conducting business, the City of Nashua shall
have the right to solicit applications for employment from any employee of the Consultant
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 Consultant's principals, officers, employees, agents, subcontractors,
consultants, vendors, or suppliers are expressly recognized to be within Consultant'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 Consultant Representative. At all
times, Consultant 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, the
parties may request that the dispute be submitted to the Board of Public Works for resolution. If
the parties are dissatisfied with the decision of the Board of Public Works, 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 Consultant for damages because of hindrances or
delays in the progress of the work from any cause, and Consultant agrees to accept in full

GC 5 of i

11.

12.

satisfaction of such hindrances and delays any extension of time that the City of Nashua may
provide.

INSURANCE Consultant 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
aggregate;
> $1,000,000 Combined Single Limit Automobile Liability;
*Coverage must include all owned, non-owned and hired vehicles.
> $1,000,000 Profession Liability;
>» and Workers' Compensation Coverage in compliance with the State of New
Hampshire statutes, $100,000/$500,000/$100,000.

Consultant 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 Consultant are intended to and shall not in any manner limit or qualify the
liabilities and obligations assumed by Consultant under this contract. The City of Nashua shall
not maintain any insurance on behalf of Consultant. Subcontractors are subject to the same
insurance requirements as Consultant and it shall be the Consultant’s responsibility to ensure
compliance of this requirement.

Consultant 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 insured and reflect on the certificate of
insurance. Consultant 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, Consultant 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 Consultant of its responsibilities
or limit the amount of its liability to the City of Nashua or other persons, and Consultant 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.
> Consultant 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
Consultant or anyone employed, directed, or supervised by Professional Engineer.

INDEMNIFICATION Regardless of any coverage provided by any insurance, Consultant agrees to
indemnify and shall defend 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 caused,
occasioned, or contributed to in whole or in part by reason of any negligent act, omission, or fault

GC 6 of 11

13.

14.

15.

16,

or willful misconduct, whether active or passive, of Consultant or of anyone acting under its

' direction or control or on its behalf in connection with or incidental to the performance of this

contract. Consultant’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.

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 Consultant with a right of payment over any
other entity. Any funds obligated by the City of Nashua under this contract that are not paid to
Consultant shall automatically revert to the City of Nashua’s discretionary control upon the
completion, termination, or cancellation of the agreement. The City of Nashua shall not have any
obligation to re-award or to provide, in any manner, the unexpended funds to Consultant.
Consultant shall have no claim of any sort to the unexpended funds.

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

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

NONDISCRIMINATION If applicable or required under any federal or state law, statute, regulation,
order, or other requirement, Consultant agrees to the following terms. Consultant will not
discriminate against any employee or applicant for employment because of physical or mental
handicap in regard to any position for which the employee or applicant for employment is
qualified. Consultant agrees to take affirmative action to employ, advance in employment, or to
otherwise treat qualified, handicapped individuals without discrimination based upon physical or
mental handicap in all employment practices, including but not limited to the following:
employment, 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, Consultant's attention is directed to 41 C.F.R. § 60-1.4, and
the clause entitled "Equal Opportunity Clause" which, by reference, is incorporated into this
contract, to 41 C.F.R. § 60-250 et seq. and the clause entitled "Affirmative Action Obligations of
Consultants and Subcontractor for Disabled Veterans and Veterans of the Vietnam Era," which,
by reference, is incorporated in this contract, and to 41 C.F.R. § 60-471 and the clause entitled
"Affirmative Action Obligations of Consultants and Subcontractors for Handicapped Workers,"
which, by this reference, is incorporated in this contract.

GC 7 of 11

17.

18.

19.

20.

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

In connection with the performance of work under this contract, Consultant agrees not to
discriminate against any employee or applicant for employment because of race, creed, color,
national origin, sex, age, or sexual orientation. This agreement includes, but is not limited to, the
following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising,
layoff or termination, rates of pay or other forms of compensation, and selection for training,
including apprenticeship.

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

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

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

CITY INSPECTION OF CONTRACT MATERIALS The books, records, documents and accounting
procedures and practices of Consultant related to this contract shall be subject to inspection,
examination and audit by the City of Nashua, including, but not limited to, the contracting
agency, the Board of Public Works, Corporation Counsel, and, 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 Consultant in the
performance of its obligations under this contract shall be the exclusive property of the City of
Nashua and all such materials shall be remitted and delivered, at Consultant's expense, by
Consultant to the City of Nashua upon completion, termination, or cancellation of this contract.
Alternatively, if the City of Nashua provides its written approval to Consultant, any books,
reports, studies, photographs, negatives or other documents, data, drawings or other materials
including but not limited to those contained in media of any sort (e.g., electronic, magnetic,
digital) prepared by or supplied to Consultant in the performance of its obligations under this
contract must be retained by Consultant for a minimum of four years after final payment is made
and all other pending matters are closed. If, at any time during the retention period, the City of
Nashua, in writing, requests any or all of the materials, then Consultant shall promptly remit and
deliver the materials, at Consultant's expense, to the City of Nashua. Consultant shall not use,
willingly allow or cause to have such materials used for any purpose other than the performance

GC 8 of 11

21,

22.

23.

24,

of Consultant's obligations under this contract without the prior written consent of the City of
Nashua.

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

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

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

Consultant shall have the right, in order to avoid such claims or actions, to substitute at its
expense non-infringing materials, concepts, products, or processes, or to modify such infringing
materials, concepts, products, or processes so they become non-infringing, or to obtain the
necessary licenses to use the infringing materials, concepts, products, or processes, provided that
such substituted or modified materials, concepts, products, or processes shall meet all the
requirements and be subject to all the terms and conditions of this contract,

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

TAXES Consultant shall pay all taxes, levies, duties, and assessments of every nature due in
connection with any work performed under the contract and make any and all payroll deductions
required by law. The contract sum and agreed variations to it shall include all taxes imposed by
law. Consultant hereby indemnifies and holds harmiess 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

GC 9 of 11

25,

26.

27,

28.

29,

default, breach, or modification of any of the terms and conditions of the contract unless
expressly stipulated to by the City of Nashua in a written waiver.

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

PROHIBITED INTERESTS Consultant shall not allow any officer or employee of the City of
Nashua to have any indirect or direct interest in this contract or the proceeds of this contract.
Consultant warrants that no officer or employee of the City of Nashua has any direct or indirect
interest, whether contractual, noncontractual, financial or otherwise, in this contract or in the
business of Consultant. If any such interest comes to the attention of Consultant at any time, a
full and complete disclosure of the interest shall be immediately made in writing to the City of
Nashua. Consultant also warrants that it presently has no interest and that it will not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the performance of
services required to be performed under this contract. Consultant further warrants that no person
having such an interest shall be employed in the performance of this contract. If City of Nashua
determines that a conflict exists and was 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 Consultant (or any of its officers, partners, principals, or employees acting with its
authority) is convicted of a crime involving a public official arising out or in connection with the
procurement of work to be done or payments to be made under this contract, City of Nashua may
terminate the contract at will or for cause in accordance with paragraph 8. Upon termination,
Consultant shall refund to the City of Nashua any profits realized under this contract, and
Consultant shall be liable to the City of Nashua for any costs incurred by the City of Nashua in
completing the work described in this contract. At the discretion of the City of Nashua, these
sanctions shall also be applicable to any such conviction obtained after the expiration or
completion of the contract.

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

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

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

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

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

GC 10 of 11