348-24 RFP - MA 2025 NJDOT Responses.pdf

ight affect the Project requirements (including but not limited to design objectives and constraints, budgetary limitations, surveys, related reports and studies, environmental, geotechnical, and soil data, preliminary designs, etc.). H2M is entitled to rely on the accuracy of all information that the Client provides, H2M shall not be required to verify any such information, unless such task and information is specifically listed in the Scope of Services. 3.8. Hazardous Materials. Client warrants that to the best of its knowledge there are no constituents of concern on or adjacent to the Site, other than those previously disclosed in writing to H2M. Nothing in this Contract shall be interpreted to give H2M responsibility for the current existence or introduction (including by, but not limited to, dispersal, discharge, escape, release, or saturation, either sudden or gradual) to the Site of any hazardous materials (including but not limited to smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids, or gases) by anyone other than H2M. Client shall therefore hold H2M harmless as to all such matters. 3.9. Claims Assistance. H2M shall be entitled to hourly compensation as Additional Services for all time spent analyzing, preparing, testifying, and otherwise assisting Client to pursue or defend claims and disputes to which H2M is not a named plaintiff or defendant. 4. Payment Terms 4.1, Fees. The “Fees” are the component of compensation to be paid by Client to H2M for its effort in providing the Services. The Fees pertaining to this Contract, are set forth in the proposal, and any Amendments to the Contract. Additional services, when required will be invoiced at hourly rates of compensation or a negotiated lump sum, plus reimbursable expenses. 4.2, Reimbursable Expenses. The “Expenses” are the costs H2M incurs in rendering the Services which are to be reimbursed by Client. Expenses authorized by this Contract include but are not limited to: 4.2.1. Transportation, lodging and subsistence incidental to the project, courier charges, reproduction, renderings or models, specialty field equipment and fees paid for securing approval of authorities having jurisdiction over the project; Page 1 of 4

4.2.2, Sub-contractor expenses, plus a ten (10) percent mark-up to compensate H2M for its handling and administration costs; 4.2.2. Any other expenses set forth in the proposal. 4,3. Taxes. The amount of any sales, excise, value added, gross receipts or any other type of tax that may be imposed by any taxing entity or authority shall be paid by Client in addition to the Fees and Expenses. 4.4, Invoices. H2M shall provide invoices to Client for all Fees and Expenses due under this Contract. Payment of invoices shall not be contingent upon the action of any third party. Client shall pay each invoice within thirty (30) days of the invoice date. 4.5. Interest on Past Due Amounts. Invoices, Fees, and Expenses will be past due as of the thirty first (31st) day following the date of the invoice. All past due amounts shall accrue interest at the maximum rate permissible by lawuntil the date upon which they are finally paid. 4.6. Required Fee Advance. As security against the risks and costs of mobilizing to commence performing the Services, H2M may require a Fee advance. Any such Fee advance will be specified in the proposal. The fee advance will be deposited upon receipt and booked as an outstanding credit against accounts receivable from the Client. The Fee advance will be applied to Client's final invoice. 5, Project Risk Management 5.1. Mutual Waiver. Except as otherwise specifically provided for in these T&C, neither Party shall hold the other responsible for, any consequential damages, nor any damages other than direct damages. 5.2, Mutual Indemnification. Subject to the applicable concepts’ of contributory and comparative fault, and in addition to any other compensation provided by law or this Contract, each Party shall indemnify the other Party's “Indemnitees” (the Party, its owners, directors, officers, employees and volunteers) against third-party claims and liabilities (including the reasonable costs of defending such claims) for death, bodily-injury, and property damage, but only to the extent such have been caused by the negligence of the indemnifying Party (including its owners, directors, officers, employees, volunteers, and those contractors for whom it is legally responsible), and not to the extent such are caused by any other means (including but not limited to the negligence of the Indemnitees themselves). 5,3. Insurance Coverage. H2M

for whom it is legally responsible), and not to the extent such are caused by any other means (including but not limited to the negligence of the Indemnitees themselves). 5,3. Insurance Coverage. H2M shall maintain the following insurance coverage while performing the Services. Upon request, H2M will provide a Certificate of Insurance to Client as Certificate Holder reflecting such coverage. 5.3.1. Workers’ Compensation and Disability coverages with limits at least in the amount required by law. 5.3.2. Employers’ Liability coverage with policy limits not less than one million dollars ($1,000,000) each accident, one million dollars ($1,000,000) each employee, and one million dollars ($1,000,000) policy limit. 5.3.3, Automobile Liability coverage for H2M owned and non-owned vehicles utilized in performance of its Contract obligations, meeting statutorily required coverage, and with policy limits not less than one million dollars ($1,000,000) each accident for bodily injury, death of any person and property damage. 5.3.4. Commercial General Liability coverage with policy limits of not less than one million dollars ($1,000,000) each occurrence and two million dollars ($2,000,000) in the aggregate for bodily injury and property damage. 5.3.5. Professional Liability coverage for negligent acts, errors and omissions in the performance of professional services with policy limits ofnot less than one million dollars ($1,000,000) per claim and one million dollars ($1,000,000) in the aggregate. (Ver 210520) 5.3.6. Pollution Liability coverage with policy limits of notless than one million dollars ($1,000,000) per claim and one million dollars ($1,000,000) in the aggregate, whenever such would apply to H2M's Services. 5.4, Additional Insured Coverage. Client shall be covered as Additional Insured under the terms of H2M’s Commercial General Liability policy. 5.5, LIMITATION OF H2M LIABILITY. H2M's AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM AND/OR RELATED TO THIS CONTRACT, THE SERVICES, THE PROJECT, AND/OR THE SITE, SHALL BE LIMITED TO THE GREATER OF THE AMOUNT OF FEES PAID UNDER THIS CONTRACT OR FIFTY THOUSAND DOLLARS ($50,000.00). 6. Dispute Resolution 6.1. Notice of Claim or Dispute. An aggrieved Party shall give the other Party written notice of any claim or dispute arising from the Project, the Services, or this Contract. The Parties shall endeavor in

Notice of Claim or Dispute. An aggrieved Party shall give the other Party written notice of any claim or dispute arising from the Project, the Services, or this Contract. The Parties shall endeavor in good faith to resolve such matters fairly and amicably through negotiation. Ifthe matter has not been resolved by negotiation within thirty (30) days of receipt of such written notice, either Party may demand mediation of the matter. 6.2. Mediation. Unless the Parties agree to other rules, any mediation shall be conducted under the auspices of the American Arbitration Association (AAA), pursuant to its Construction industry mediation rules. Each Party shall bear its own mediation costs (except as specified in the ules, and except that the AAA fees, mediator fees, and if agreed the venue fees, shall all be bome equally by the Parties). Except as otherwise specifically permitted herein, a prospective plaintiff Party may Not file an action before giving the other Party ten (10) day's written notice and opportunity to demand mediation. Such notice, and a good faith effort in any mediation timely demanded, shall be a condition precedent to the prospective plaintiff Party commencing litigation. 6.3. Waiver of Jury Trial. The Parties hereby waive any and all rights to a trial by jury in any litigation pertaining to the Services or this Contract, 6.4. Certificate of Merit. As a condition precedent to filing any pleading containing a cause of action based on professional liability, Client must include a sworn Certificate of Merit from a similarly licensed professional explaining the applicable Standard of Professional Care and alleging the specific acts or omissions by which H2M violated the Standard. 6.5. Suspension of Services. Upon ten (10) days written notice, H2M may suspend delivery of the Services until any past due Invoice is paid. Client shall hold H2M harmless for the impact of any such suspension. 6.6. Collection Efforts. Upon ten (10) days additional written notice, H2M may refer any past due invoice to inside or outside counsel for collection. H2M is entitled to reimbursement by Client for the time and cost involved in such collection efforts. 6.7. Liquidated Damages. Since the actual costs that H2M will suffer in such collection efforts is difficult to ascertain, the Parties agree that Client will pay H2M the following amounts as liquidated damages

idated Damages. Since the actual costs that H2M will suffer in such collection efforts is difficult to ascertain, the Parties agree that Client will pay H2M the following amounts as liquidated damages for such costs: two hundred dollars ($200.00) when H2M refers a past due invoice for collection; plus either an additional six hundred dollars ($600.00) when a collection action is filed in small claims court, or an additional two thousand dollars ($2,000.00) when a collection action is filed in any other court. These liquidated damages are H2M's only remedy to recover such costs of collection. 6.8. Payment Disputes. H2M's collection efforts are not subject to the mediation requirements set forth above. In disputing any invoice, Client shall adhere to the Mediation and Certificate of Merit requirements set forth above. Page 2 of 4

6.9. Project Suspension. Upon seven (7) days’ written notice to H2M, Client may suspend the Project for any reason. If the aggregate number of Project suspension days exceeds sixty (60) days, such will constitute cause for termination, 8.10. Termination. Either Party may terminate this Contract for cause if the other Party substantially fails to perform its obligations or otherwise breaches a material term of this Contract. Such termination will only be effective upon seven (7) days’ written notice and Opportunity to cure. This Contract may also be terminated by the Client without cause by providing HM thirty (30) days written notice. If this Contract is terminated H2M shall be entitled to invoice and to be paid for any Services performed prior to the termination. Notwithstanding any other provisions of the Contract, if H2M terminates this Contract for cause, in addition to any direct damages for breach of contract, it shall be entitled to recover from Client any expenses demonstrably attributable to termination 7. Definitions (additional definitions indicated by quotes in context). 7.1. “Client” means the person/entity for which H2M is Obliged to perform the Scope of Services set forth in the Contract (and/or for which H2M performs services described in 1.2. above). Client and H2M are each individually a “Party” and are collectively the “Parties” to the Contract. 7.2. “H2M” means the entity appropriately authorized to offer and render the services contained in the proposal and Contract. Specifically H2M \ Associates, Inc.; H2M Architects & Engineers, Inc.; or H2M Architects, Engineers, Land Surveying and Landscape Architecture, D.P.C. (d/b/a H2M architects + engineers), as appropriate. No proposal is intended as, and none should be interpreted to be, an offer to provide any services in any location where H2M is not authorized to Provide such services. 7.3, “Contract” means the written agreement by which H2M is obligated to perform services for the Client, and includes all components specified in the proposal or otherwise incorporated by written reference. 7.4, “Services” means those services H2M is required by the Contract to perform for the Client, as such are reflected in the agreed “Scope of Services” set forth in the proposal and any amendments thereto agreed by the Parties in writing. 7.5. “Project” means the Client's overall endeavor at the

s such are reflected in the agreed “Scope of Services” set forth in the proposal and any amendments thereto agreed by the Parties in writing. 7.5. “Project” means the Client's overall endeavor at the Site, of which H2M's Scope of Services is a component. 7.6. “Site” means the real Property to which the Project pertains, or where components of the Project are being built or disposed, 7.7. “Owner” means the owner(s) of the Site, whether or not such owner is also the Client. 7.8. “Contractor” means any person or entity (including the employees and subcontractors at every level thereof), other than H2M (including H2M's own employees and subconsultants), that provides materials and/or services for the Client telating to the Project or the Site. Any licensed professional or firm engaged by a Contractor, or by the Client directly (rather than as a subconsultant to H2M) is also a Contractor. 7.9. “Contractor Activity” means every activity performed by a Contractor that is in any way related to furthering the Project or otherwise performed on the Site, regardless of whether such activity is required by contract. Contractor Activity also includes a Contractor's failure to perform any activity required by law or contract. 8. General Terms 8.1. Headings. Paragraph numbering and headings are for navigational Purposes only and shall be given no weight in construing the terms and conditions of this Contract. 8.2. Integration. This Contract, the components of which are specified in the proposal, represents the entire and integrated agreement between Client and H2M. This Contract supersedes all prior representations, (Ver 210520) Negotiations, and agreements, written or otherwise. In the event of any conflict between other Contract terms and these T&C, these T&C shall govern, unless the conflicting term specifically states that it is superior in precedence to this these T&C, 8.3. Severability. If any term or condition in this Contract is found to be unenforceable, the enforceable remainder shall be valid and binding upon the Parties. No waiver of any term or condition shall be construed to be a waiver of any subsequent breach. 8.4. Amendment. Any modification or addition to this Contract shall not be enforceable unless agreed upon in writing. 8.5. Delegation. Any delegation of a Party's fight or obligation under this Contract shall be void unless made Pursuant

dition to this Contract shall not be enforceable unless agreed upon in writing. 8.5. Delegation. Any delegation of a Party's fight or obligation under this Contract shall be void unless made Pursuant to advance written consent from the other Party. 8.6. Force Majeure. Neither Party shall be responsible for damages or delay caused by extraordinary events that are beyond its reasonable control and due care (as nonexclusive examples, war, terrorism, and natural disasters). 8.7. Choice of Law. The Standard of Professional Care applicable to the Services shall be supplied by the law of the state in which the Site is located. The remainder of this Contract shall be governed by the laws of the State of New York when the Site is located in New York, or by the laws of the State of New Jersey for all other Projects. 8.8. Choice of Forum. The Parties agree that the courts of New York State shall have jurisdiction over the Parties and their disputes arising under or related to this Contract as it pertains to any Site in New York State, and consent to the jurisdiction of said courts, Any New York litigation arising under or related to this Contract shall be filed in a court located in Nassau County, New York, or any New York county in which H2M maintains a permanent office at the time such litigation is commenced. The Parties agree that the courts of New Jersey shall have jurisdiction over the Parties and their disputes arising under or related to this Contract as it pertains to any Site outside New York State, and Consent to the jurisdiction of said courts. Any non-New York litigation arising under or related to this Contract shall be filed in @ court located in Morris County, New Jersey, or any New Jersey county in which H2M maintains a permanent office at the time such litigation is commenced. 9. Construction-Related Terms 8.1. Construction and Site Safety. Client represents that itis the Owner of the Site, or has the Owner's permission to control the Site, Nothing in this Contract or otherwise shall be interpreted to give H2M responsibility for safety upon the Site, nor for any means, methods, techniques, Sequences, or procedures used, or failed to be used, in any Contractor Activity or other activity on the Project or Site (including, but not limited to shoring, bracing, scaffolding, Underpinning, excavating, temporary retaining, erecting, staging, etc.). H2M

Contractor Activity or other activity on the Project or Site (including, but not limited to shoring, bracing, scaffolding, Underpinning, excavating, temporary retaining, erecting, staging, etc.). H2M employees shall comply with Site safety programs, when applicable, 9.2. Contractor's Insurance. Client is responsible for determining and demanding Contractor insurance that sufficiently protects Client. Additionally, to protect H2M, the Client shall cause any Contractor to Procure, prior to commencing any Contractor Activity, at least the following insurance coverage, which must remain in force during all such activity and its associated guarantee: 9.2.1. Workers’ Compensation and Disability coverages with limits at least in the amount required by law. 9.2.2. Employers’ Liability Coverage with policy limits not less than one million dollars ($1,000,000) each accident, one million dollars ($1,000,000) each employee, and one million dollars ($1,000,000) policy limit. Page 3 of 4

9.2.3, Automobile Liability coverage for Contractor owned and non- owned vehicles utilized in performance of the Contract Activity, meeting statutorily required coverage, and with policy limits not less than one million dollars ($1,000,000) each accident for bodily injury, death of any person and property damage. 9.2.4. Commercial General Liability coverage with policy limits of not less than one million dollars ($1,000,000) each occurrence and three million dollars ($3,000,000) in the aggregate for bodily injury and property damage, and which includes the following features: 9.2.4.a. Explosion, Collapse and Underground coverage, whenever such would apply to the Contractor Activity; 9.2.4.b. Pollution Liability coverage, whenever such would apply to the Contractor Activity; 9.2.4.c. Contractual Liability coverage sufficient to insure the indemnity required by 7.4. below; and 9.2.4.d. Additional Insured coverage for H2M, by endorsement using ISO Form CG 20 32 04 13, specifying each of the entities listed in 3.2. above, as well as all of their directors, officers and employees. 9.2.5. Professional Liability coverage, whenever such would apply to the Contractor Activity, for negligent acts, errors and omissions in the performance of professional services with policy limits of not less than one million dollars ($1,000,000) per claim and one million dollars ($1,000,000) in the aggregate. 9.3, Contractor's Indemnity. Client shall require each of its Contractors to agree, via a written contract executed prior to commencing any Contractor Activity, to defend and indemnify the Client and the “H2M Indemnitees” (including each of the entities listed in 3.2. above, as well as all of their directors, officers, employees, consultants and agents) against all claims, liabilities and costs arising, or alleged to arise, from the negligence of the Contractor (including its owners, directors, employees, contractors and any others for whom the Contractoris legally responsible) in its Contractor Activity or any of its other activities (Ver 210520) concerning the Project or Site. This obligation does not apply to such claims, liabilities and costs that are caused by the sole negligence of the H2M Indemnitee itself. 9.4. Cost Opinions. Any opinion of cost that H2M prepares is merely an estimate supplied for the Client's general guidance. H2M has no control over variations