Township Council Meeting — Packet

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

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 in market conditions, suppliers’ or contractors’ bidding strategies, nor the impacts that these and other variables have on the actual cost of labor and materials. Therefore, H2M cannot guarantee the level of accuracy of any such estimates. If greater accuracy is required, the Client shall separately engage an independent cost estimator. 9.5. Bid Process. If H2M is to participate in Contractor bid process, Client shall provide H2M with standard bid documents required and advertise for proposals from bidders, open the proposals at the appointed time and place and pay costs incident thereto. The Client shall hold all required special meetings, serve all required public and private notices, receive and act upon all protests and fulfil all requirements necessary in the development of the contracts and pay all costs including application and permit fees incident thereto. 9.6. Construction Observation Services. If the Services include H2M providing construction observation services, H2M shall provide such services over @ period defined in, and on a frequency defined in the proposal. Regardless of the required frequency, H2M shall observe the Contractors’ work only for general conformance with the plans and specifications. Such Services do not include any obligation to review any Contractors’ construction means, methods, techniques, sequences or procedures, or any safety precautions and programs in connection with the Project or Site. H2M is not responsible for any Contractors’ failure to carry out its work in accordance with the construction contracts. If the construction schedule is extended for any reason (except due to H2M’s own negligence) H2M shall be entitled to payment for its extended effort as additional services pursuant to 4.1. above, regardless of whether Client seeks reimbursement from the responsible party. Accepted and Agreed Client | Township of West Orange, New Jersey H2M H2M Associates, Inc. Signature Signature By: Name By: Name | Charles A. Martello, P.E., LSRP Title Title | Senior Vice President Date Date Page 4 of 4

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