30. SEVERABILITY GC--b2
31. MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT GC--12
32. CHOICE OF LAW AND VENUE GC--13
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GENERAL CONDITIONS
1. DEFINITIONS. Unless: otherwise required by the context, "Professional Engineer”
includes any of the Professional Engineer's consultants, sub consultants, contractors, and
subcontractors
om PROFESSIONAL ENGINEER STATUS AND PROVISION OF WORKERS’
COMPENSATION COVERAGE. The parties agree that Professional Engineer shall have the
status of and shall perform all work under this contract as a Professional Engineer, maintaining
control over all its consultants, sub consultants, contractors, or subcontractors. The only
contractual relationship created by this contract is between the City and Professional Engineer,
and nothing. in this contract shall create any contractual relationship between the City and
Professional Engineer's consultants, sub consultants, contractors, or subcontractors. The parties
also agree that Professional Engineer is not a City employee and that there shall be no:
(1) Withholding of income taxes by the City:
(2) Industrial insurance coverage provided by the City;
(3) Participation in group insurance plans which may be available to employees of
the City;
(4) Participation or contributions by either the Professional Engineer or the City to
the public employee’s retirement system;
(5) Accumulation of vacation leave or sick leave provided by the City;
(6) Unemployment compensation coverage provided by the City.
Professional Engineer agrees, before commencing any work under the contract, to complete and
to provide the following written request to its insurer:
(Company Name) has entered into a contract with the City of Nashua to perform
work upon receipt of an Executed Contract and a Valid Purchase Order issued from
the City to Final Completion and requests that the Insurer provide to the City of
Nashua 1) a certificate of coverage, and 2) notice of any lapse in coverage or
nonpayment of coverage that the Professiona] Engineer is required to maintain. The
certificate and notice should be mailed to:
Risk Management
City of Nashua
229 Main Street
Nashua, NH 03060
3. STANDARD OF CARE. Professional Engineer shall be responsible for the professional
quality, technical accuracy, timely completion, and coordination of all work performed under
this contract. Professional Engineer 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 Professional Engineer to assure at its own expense that all work is technically sound and in
conformance with all applicable federal, state, and local laws, statutes, regulations, ordinances,
orders, or other requirements. In addition to all other rights which the City may have,
Professional Engineer 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 Professional Engineer's failure to perform in accordance with this
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standard of care. Any approval by the City of any products or services turnshed or used by
Professional Engineer shall not in any way relieve Professional Engineer of the responsibility for
professional and technical accuracy and adequacy of its work. City review, approval, or
acceptance of, or payment for any of Professional Engineer's work under this contract shall not
operate as a waiver of any of the City's rights or causes of action under this contract, and
Professional Engineer shall be and remain liable in accordance with the terms of the contract and
applicable law.
Professional Engineer shall furnish competent and skilled personnel to perform the work under
this contract. The City reserves the right to approve key personnel assigned by Professional
Engineer to perform work under this contract. Approved key personnel shall not be taken off of
the project by Professional Engineer without the prior written approval of the City, except in the
event of termination of employment. Professional Engineer shall, if requested to do so by the
City, remove from the job any personnel whom the City determines to be incompetent,
dishonest, or uncooperative.
4. CITY REPRESENTATIVE. The City may designate a City representative for this contract.
If designated, all notices, project materials, requests by Professional Engineer, and any other
communication about the contract shall be addressed or be delivered to the City Representative.
5. CHANGES TO SCOPE OF WorRK. The City may, at any time, by written order, make
changes to the general scope, character, or cost of this contract and in the services or work to be
performed, either increasing or decreasing the scope, character, or cost of Professional
Engineer's performance under the contract. Professional Engineer shall provide to the City within
10 calendar days, a written proposal for accomplishing the change. The proposal for a change
shall provide enough detail, including personnel hours for each sub-task and cost breakdowns of
tasks, for the City to be able to adequately analyze the proposal. The City will then determine in
writing if Professional Engineer should proceed with any or all of the proposed change. If the
change causes an increase or a decrease in Professional Engineer'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 Professional Engineer for adjustment under this
clause shall be asserted in writing within 30 days of the date the City notified Professional
Engineer of the change and shall be consistent with the proposal for change provided in
accordance with this section.
When Professional Engineer seeks changes, Professional Engineer shall, before any work
commences, estimate their effect on the cost of the contract and on its schedule and notify the
City in writing of the estimate. The proposal for a change shall provide enough detail, including
personnel hours for each sub-task and cost breakdowns of tasks, for the City to be able to
adequately analyze the proposal. The City will then determine in writing if Professional
Engineer should proceed with any or all of the proposed change.
Except as provided in this paragraph, Professional Engineer shall implement no change unless
the City in writing approves the change. Unless otherwise agreed to in writing, the provisions of
this contract shall apply to all changes. The City may provide verbal approval of a change when
the City, in its sole discretion, determines that time is critical or public health and safety are of
concern. Any verbal approval shall be confirmed in writing as soon as practicable. Any change
undertaken without prior City approval shall not be compensated and is, at the City's election,
sufficient reason for contract termination.
GC 40f 13
6. CITY COOPERATION. The City agrees that its personnel will cooperate with
Professional Engineer in the performance of its work under this contract and that such personnel
will be available to Professional Engineer for consultation at reasonable times and after being
given sufficient advance notice that will prevent conflict with their other responsibilities. The
City also agrees to provide Professional Engineer with access to City 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 and Professional Engineer also agree to attend
all meetings called by the City or Professional Engineer to discuss the work under the Contract,
and that Professional Engineer 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,
Professional Engineer warrants that it has examined all contract documents, has brought all
conflicts, errors, discrepancies, and ambiguities to the attention of the City in writing, and has
concluded that the City's resolution of each matter is satisfactory to Professional Engineer. All
future questions Professional Engineer may have concerning interpretation or clarification of this
contract shall be submitted in writing to the City within 10 calendar days of their arising. The
writing shall state clearly and in full detail the basis for Professional Engineer's question or
position. The City representative shall render a decision within 15 calendar days. The City's
decision on the matter is final. Any work affected by a conflict, error, omission, or discrepancy
which has been performed by Professional Engineer prior to having received the City's resolution
shall be at Professional Engineer's risk and expense. 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 of the City. Professional Engineer is responsible
for requesting clarification or interpretation and is solely liable for any cost or expense arising
from its failure to do so.
8. TERMINATION OF CONTRACT
A. TERMINATION, ABANDONMENT, OR SUSPENSION AT WILL. The City, in its sole
discretion, shall have the right to terminate, abandon, or suspend all or part of the project and
contract at will. If the City chooses to terminate, abandon, or suspend all or part of the project, it
shall provide Professional Engineer 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, Professional Engineer
shall:
Immediately discontinue work on the date and to the extent specified in the notice.
Provide the City with a list of all unperformed services.
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 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.
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5. 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, 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 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, 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 prior to the effective date of the termination.
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 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 all orders or sub contracts to the extent they relate to the performance of
work terminated, abandoned, or suspended under the notice, assign to the City 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 OWNER to resume performance.
-In the event of a termination for cause, 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, 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 Professional Engineer's failure. Professional Engineer shall not be relieved of liability
to the City for damages sustained from the failure, and the City may withhold any payment to the
Professional Engineer until such time as the exact amount of damages .due to the City is
determined. All claims for payment by the Professional Engineer 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 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, 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 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.
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. In the event Professional Engineer shall cease conducting business, the City shall
GC 6 of 13
have the right to solicit applications tor 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 supplicrs arc expressly recognized to be within
Professional Engineer'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 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. If the dispute is not resolved within 30 days, either party
may request that the dispute be submitted to the Board of Public Works for final resolution. The
decision of the Board of Public Works shall be final and- binding on the parties. If either party is
dissatisfied with the decision of the Board of Public Works, that party may immediately
terminate the contract under this paragraph, with Professional Engineer being entitled to
compensation for work actually and satisfactorily performed up to the time of the termination
and the City being entitled to all contract materials in accordance with paragraph 21, and
compensation for any additional damages or expenses incurred in completing the work under the
contract, including, without limitation, the costs of securing the services of other Professional
Engineers.
10. 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 may provide.
11. 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
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.
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
GC 7 of 13
limit or qualify the liabilities and obligations assumed by Protessional Engineer under this
contract. The City of Nashua shall not maintain any insurance on behalf of Professional
Engineer. Subcontractors are subject to the same insurance requirements as Professional
Engineer and it shall be the Professional Engineer’s responsibility to ensure compliance of this
requirement.
Professional Engineer will provide the City of Nashua with certificates of insurance for
coverage as required herein and cndorscments affecting coverage required by the contract within
ten calendar days after the City issues the notice of award. Said certificates shall provide that the
City shall receive 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. 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.
= If aggregate 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 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, caused in whole or part by Professional Engineer
or anyone employed, directed, or supervised by Professional Engineer.
12. INDEMNIFICATION Regardless of any coverage provided by any insurance, Professional
Engineer 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, attorney’s fees, costs and expenses of any kind or nature in any manner
caused, occasioned, or contributed to in whole or in part by reason of any negligent act,
omission, or fault or willful misconduct, whether active or passive, of 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, defense and hold harmless
obligations, or portions thereof, shall not apply to liability caused by the sole negligence or
willful misconduct of the party indemnified or held harmless.
13. FIscAL CONTINGENCY. All payments under this contract are contingent upon the
availability to the City of the necessary funds. This contract shall terminate and the City's
obligations under it shall be extinguished at the end of any fiscal year in which the City fails to
appropriate monies for the ensuing fiscal year sufficient for the performance of this contract.
GC 8 of 13
‘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 under this contract that are not
paid to Professional Engineer 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 Professional
Engineer. Professional Engineer shall have no claim of any sort to the unexpended funds.
14. | COMPENSATION. Review by the City of Professional Engineer's submitted monthly
invoice forms and progress reports for payment will be promptly accomplished by the City. If
there is insufficient information, the City may require Professional Engineer to submit additional
information. Unless the City, in its sole discretion, decides otherwise, the City shall pay
Professional Engineer in full within 30 days of approval of the submitted monthly invoice forms
and progress reports.
15. COMPLIANCE WITH APPLICABLE LAWS. Professional Engineer, 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. 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 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 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 Professional Engineers 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 Professional Engineers and
Subcontractors for Handicapped Workers," 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 sub
consultants to participate to the extent possible, consistent with their qualification, quality of
work, and obligation of Professional Engineer under this contract.
GC 9 of 13
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 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.
17. FEDERAL SUBCONTRACTING REQUIREMENTS. If Professional Engineer awards a
subcontract under this contract, Professional Engineer, if applicable, shall use the following
alternative steps:
A. Using the services of the Small 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.
If applicable, Professional Engineer agrees to complete and submit to the City a Minority
Business Enterprise/‘Woman Business Enterprise (MBE/WBE) Utilization Report (Standard
Form 334) within 30 days after the end of each fiscal quarter until the end of the contract.
18. 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.
19. 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. 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. 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, 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. Any books, reports, studies, photographs,
negatives or other documents, data, drawings or other materials, including but not limited to
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