Search

action ina timely manner. The City and Service Provider also agree to attend all meetings called
by the City or Service Provider to discuss the work under the Contract, and that Service Provider
may elect to conduct and record such meetings and shall later distribute prepared minutes of the
meeting to the City.

7, DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES.
The City shall furnish to Service Provider all information and technical data in the City’s
possession or contra] reasonably required for the proper performance of the services. Service
Provider shall be entitled to reasonably rely without independent verification upon the
information and data provided by the city or obiained from generally accepted sources within the
industry, except to the extent such verification by Service Provider is expressly required as a
defined part of the Services.

Service Provider will endeayor in good faith, as needed, to obtain from the appropriate
authorities their interpretation of applicable codes and standards and will apply its professional
judgment in interpreting the codes and standards as they apply to the Project at the time of
performance of the Services. Notwithstanding the above, the Parties agree that, as the Project
progresses, such codes or standards may change or the applicability of such codes or standards
may vary from Service Providers original interpretation through no fault of Service Provider and
that additional costs necessary to conform to such changes or interpretation during or after
execution of the Services will be subjected to an equitable adjustment in the Compensation and
Project Schedule.

All future questions Service Provider may have concerning interpretation or clarification of this
contract shall be submitted in within 10 calendar days of their arising. The contract shall state
clearly and in full detail the basis for Service Provider’s question or portion. The City
representative shall render a decision with 15 calendar days. The City’s decision on the matter is
final. At all times, Service Provider shall carry on the work under this contract and maintain
and complete work in accordance with the requirement of the contract or determination of the
City. Service Provider is responsible, pursuant to the standard of care, for requesting clarification
or interpretation in the event it discovers a conflict, error or omission or discrepancy in the
contract documents, and is liable for its direct costs or expense to the extent caused by its failure
to do so.

Service Provider shail be responsible for its performance and that of Service Provider's lower-
tier subcontractors and vendors,

8, TERMINATION OF CONTRACT

A. TERMINATION, ABANDONMENT, OR SUSPENSION AT WILL. The City, in its sole
discretion, shail have the right fo terminate, abandon, or suspend al! or part of the project and
contract at will. Ifthe City chooses to terminate, abandon, or suspend all or part of the project, it
shall provide Service Provider 10 day’s written notice of its intent to do so.

[f 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, Service Provider
shall:

—

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, Service Provider shall receive
all amounts due and not previously paid to Service Provider 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 Service Provider in the event of a failure by Service Provider 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.
Service Provider shall be given an opportunity for consultation with the City prior to the
effective date of the termination. Service Provider may terminate the contract on 10 calendar
days written notice if, through no fault of Service Provider, the City fails to pay Service Provider
for 30 days atter the date of approval of any submitted invoice forms and progress reports.

In the event of a termination for cause, Service Provider shall receive all amounts due and not
previously paid to Service Provider 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 Service Provider's failure. Service Provider shall not be relieved of liability to the City for
damages sustained from the failure, and the City may withhold any payment to the Service
Provider until such time as the exact amount of damages due to the City is determined. All
claims for payment by the Service Provider 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 Service Provider 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 Service Provider had
not so failed, ihe termination shall be deemed to have been a termination at will. In that event,
the City shall make an equitable adjustment in the compensation paid to Service Provider. The
adjustment shall include a reasonable profit for services or other work performed up to the
effective date of termination less all previous payments.

Cc. 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.

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 contro} of such party. Delays arising from the actions or
inactions of one or more of Service Provider's principals, officers, employees, agents,
subcontractors, consultants, vendors, or suppliers are expressly recognized to be within Service
Provider's control.

9, DISPUTE RESOLUTION. Any dispute not within the scope of section 7 or section 8 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 Service
Provider representative. At all times and as long as the City is in compliance with Its payment
obligations to Service Provider of undisputed amounts, Service Provider 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. Ifthe dispute is not resolved within 60 days,
either party pursue its remedies pursuant to this contract.

10. NO DAMAGES FOR DELAY. Apart from a written extension of time, no payment,
compensation, or adjustment of any kind shall be made to Service Provider for damages because
of hindrances or delays in the progress of the work from any cause, and Service Provider agrees
to accept in full satisfaction of such hindrances and delays any extension of time that the City
may provide, except when the city request Service Provider to provide over time or expend
additional resources to complete the work and such delay is not the result of Service Providers
negligent acts, errors or omissions.

11. INSURANCE. Service Provider 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
agerepate;
» $1,000,000 Combined Single Limit Automobile Liability,
*Coverage must include all owned, non-owned and hired vehicles.
> $1,000,000 Profession Liability;

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

Service Provider 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 issues the notice of award. The City of Nashua requires thirty days written
notice of cancellation of coverage. The certificates and endorsements for each insurance policy
must be signed by a person authorized by the insurer and who is authorized by the State of New

oo

nm,

a

Hampshire. General Liability and Auto Liability policies must name the City of Nashua as
an additional insured and reflect on the certificate of insurance. Service Provider is responsible
for filing updated certificates of insurance with the City of Nashua's Risk Management
Department during the life of the contract.

4 All deductibles and self-insured retentions above $100,000.00 shall be fully disclosed in
the certificate(s) of insurance.

a Tf aggregate limits of less than $2,000,000 are imposed on bodily injury and property
damage, Service Provider must maintain umbrella liability insurance of at least
$1,000,000. All ageresates must be fully disclosed on the required certificate of
insurance. .

" The specified insurance requirements do not relieve Service Provider of its
responsibilities or limit the amount of its liability to the City or other persons, and Service
Provider 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.

= Service Provider is responsible for and required to remedy all damage or loss to any
property, including property of the City, to the extent caused by Service Provider or
anyone employed, directed, or supervised by Service Provider.

12. INDEMNIFICATION Regardless of any coverage provided by any insurance, Service
Provider 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, reasonable attorney’s fees, costs and expenses to the extent caused by any
negligent act, omission, or fault or willful misconduct, whether active or passive, of Service
Provider or of anyone acting under its direction or control or on its behalf in connection with or
incidental to the performance of this contract. Service Provider’s indemnity, defense and hold
harmless obligations, or portions thereof, shall not apply to liability to the extent caused by the
sole negligence or willful misconduct of the party indemnified or held harmless.

13. FIscaAL 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 Service Provider with a right of payment
over any other entity. Any funds obligated by the City under this contract that are not paid to
Service Provider 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 Service Provider.
Service Provider shall have no claim of any sort to the unexpended finds.

14. COMPENSATION. If Applicable, review by the City of Service Provider's submitted
monthly invoice forms and progress reports for payment will be promptly accomplished by the
City. Hf the City disagrees with any portion of an invoice or requires additional information, it
shall notify Service Provider in writing of the amount mm dispute and the specific reason for the
objection within 10 days of receipt of invoice and The City shali pay all undisputed invoices of
Service Provider in full within 30 days of the submitted monthly invoice forms and progress
reports.

is, COMPLIANCE WITH APPLICABLE LAWS. Service Provider, 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. Service
Provider 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 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, Service Provider agrees to the following terms. Service
Provider 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. Service Provider agrees to take affirmative action to employ, advance
in employment, or io 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, Service Provider'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 Service Providers 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 Service Providers and Subcontractors
for Handicapped Workers," which, by this reference, is incorporated in this contract.

Tn connection with the performance of work under this contract, Service Provider 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 Hmited 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.

Service Provider 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 Service Provider shall constitute a material breach of the contract.

17, FEDERAL SUBCONTRACTING REQUIREMENTS. If Service Provider awards a subcontract
under this contract, Service Provider, if applicable, shall use the following alternative steps:

A. Using the services of the Smal] Business Administration and the Minority
Business Development Agency of the United States Department of
Commerce, as appropriate; and

B. Requiring the subcontractor, if it awards subcontracts, to take the
affirmative steps set forth in paragraph A,

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

19. ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING. Service Provider 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.

20. Ciry INSPECTION OF CONTRACT MATERIALS, The books, records, documents and
accounting procedures and practices of Service Provider related to this contract shall be subject
to inspection, examination and audit by the City, 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.

21. DISPOSITION OF CONTRACT MATERIALS. Except for pre-existing works and/or other
intellectual property owned by Service Provider, 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 Service Provider 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 Service
Provider's expense, by Service Provider to the City upon completion, termination, or cancellation
of this contract. Alternatively, if the City provides its written approval to Service Provider, 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 Service Provider in the performance of its
obligations under this contract must be retained by Service Provider 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 Service Provider
shall promptly remit and deliver the materials to the City. Service Provider shall not use,
willingly allow or cause to have such materials used for any purpose other than the performance
of Service Provider's obligations under this contract without the prior written consent of the City.
Service Provider shall not be responsible for any claims of the use of such materials by the City
for any other purpose than that which is expressly set forth under this Contract.

22. PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS. Excluding Services Provider’s
preexisting work or intellectual property, Service Provider expressly agrees that all documents
ever submitted, filed, or deposited with the City by Service Provider (including those remitted to
the City by Service Provider pursuant to paragraph 21), 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,

ARTICLE 10 — LIABILITY

APHIS-WS assumes no liability for any actions or activities conducted under this agreement except to
the extent that recourse or remedies are provided by Congress under the Federal Tort Claims Act (28
U.S.C. 1346(b), 2401(b), and 2671-2680).

ARTICLE 11 — NON-DISCRIMINATION CLAUSE

The United States Department of Agriculture prohibits discrimination in all its programs and activities
on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status,
familial status, parental status, religion, sexual orientation, genetic information, political beliefs,
reprisal, or because all or part of an individual’s income is derived from any public assistance
program. Not all prohibited bases apply to all programs.

ARTICLE 12 - DURATION, REVISIONS, EXTENSIONS, AND TERMINATIONS

This agreement shall become effective on July 1, 2022 and shall continue through June 30, 2025, not
to exceed five years. This Cooperative Service Agreement may be amended by mutual agreement of
the parties in writing. The Cooperator must submit a written request to extend the end date at least 10
days prior to expiration of the agreement. Also, this agreement may be terminated at any time by
mutual agreement of the parties in writing, or by one party provided that party notifies the other in
writing at least 30 days prior to effecting such action. Further, in the event the Cooperator does not
provide necessary funds, APHIS-WS is relieved of the obligation to provide services under this
agreement,

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 Service Provider 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 Service Provider. The City shall have the right to reproduce any such materials.

Service Provider expressly and indefinitely waives ali 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. Service Provider 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 Service
Provider infringes any copyright or that any equipment, material, or process (or any part thereof)
specified by Service Provider infringes any patent.

Service Provider shall have the right, in order to avoid such claims or actions, to substitute at its
expense non-iniringing 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.

23. ENTENTIONALLY OMITTED.
24, INTENTIONALLY OMITTED.

25. 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.

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

27, PROHIBITED INTERESTS. Service Provider shall not allow any officer or employee of the
City to have any indirect or direct interest in this contract by way of employment through Service
Provider. Service Provider warrants that no officer or employee of the City has any direct or
indirect interest, whether contractual, non-contraciual, financial or otherwise, in this contract or
in the business of Service Provider. If any such interest comes to the attention. of Service
Provider at any time, a full and complete disclosure of the interest shall be immediately made in
writing to the City. Service Provider 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. Service Provider further
warrants that no person having such an interest shall be employed in the performance of this

oot

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 Service Provider (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,
Service Provider shall refund to the City any profits realized under this contract, and Service
Provider 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.

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

28. THIRD PARTY INTERESTS AND LIABILITIES. The City and Service Provider, 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
Service Provider,

29, 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.

30. 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 shal! 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.

31. MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT, This contract constitutes the
entire contract between the City and Service Provider. 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.

32. CHOICE OF LAW AND VENUE. This contract shall be governed and construed in
accordance with the law of the State of New Hampshire. Any action, complaint, cause of action,
or other form of litigation, in law or in equity, arising out of this Agreement, the work performed
or to be performed hereunder, or which is in any way referable hereto shall be brought in the

New Hampshire Superior Court for the Southern District of Hillsborough County or in the New
Hampshire 9" Circuit Court situate in Nashua, New Hampshire and not elsewhere.