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TOLTZ, KING, DUVALL, ANDERSON AND ASSOCIATES, INCORPORATED General Provisions of Engineer-Architect Agreement ARTICLE 1. GENERAL will be at the user's sole risk. If there is a discrepancy between the electronic files and These General Provisions supplement and become part of the Agreement between Toltz, the hard copies,the hard copies govern. In the event electronic copies of documents are King, Duvall, Anderson and Associates, Incorporated, a Minnesota Corporation, made available to the CLIENT, the CLIENT acknowledges that the useful life of hereinafter referred to as TKDA, and the other Party to the Agreement, hereinafter electronic media may be limited because of deterioration of the media,obsolescence of referred to as CLIENT, wherein the CLIENT engages TKDA to provide certain the computer hardware and/or software systems or other causes outside of TKDA's Engineering,Architectural,and/or Planning services. Either Party to this Agreement may control. Therefore,TKDA makes no representation that such media will be fully usable be referred to as a'Party"or collectively as'Parties-" beyond 30 days from date of delivery to CLIENT. As used herein,the term'Agreement"refers to(1)TKDA's original Engagement Letter or If requested, at the time of completion or termination of the work, TKDA shall make proposal(the'Engagement Letter")which forms the basis for the Agreement;(2)these available to the CLIENT at CLIENT's expense copies of the Instruments of Service upon General Provisions,and(3)any attached Exhibits,as if they were part of one and the (i)payment of amounts due and owing for work performed and expenses incurred under same document. With respect to the order of precedence,any attached Exhibits shall this Agreement,and(ii)fulfillment of the CLIENT's obligations under this Agreement. govern over these General Provisions and the Engagement Letter shall govern over any ARTICLE 7. CLIENT'S ACCEPTANCE BY PURCHASE ORDER attached Exhibits and these General Provisions. In lieu of or in addition to execution of the Engagement Letter,the CLIENT may authorize ARTICLE 2. PERIOD OF SERVICE TKDA to commence services by issuing a purchase order by a duly authorized The term of this Agreement for the performance of services hereunder shall be as set representative. Such authority to commence services or purchase order shall forth in TKDA's Engagement Letter. Any lump sum or estimated maximum payment incorporate by reference the terms and conditions of this Agreement. In the event the amounts set forth in the Engagement Letter have been established in anticipation of the terms and conditions of this Agreement conflict with those contained in the CLIENT's orderly and continuous progress of the project in accordance with the schedule set forth purchase order, the terms and conditions of this Agreement shall govern. in the Engagement Letter or any Exhibits attached thereto. Notwithstanding any purchase order provisions to the contrary,no warranties,express or ARTICLE 3. COMPENSATION TO TKDA implied, are made by TKDA. In order to implement the intent of Parties to this Agreement,the Parties agree that the Engagement Letter,these General Provisions,and A. Compensation to TKDA for services shall be as designated in the Engagement any Exhibits constitute the entire Agreement between them. The Parties further agree Letter. The CLIENT shall make monthly payments to TKDA within 30 days of date of that the preprinted terms and conditions of any CLIENT-generated purchase order issued invoice. to request work pursuant to this Agreement will not apply to the work, regardless of B. The CLIENT will pay the balance stated on the invoice unless CLIENT notifies whether TKDA executes the purchase order in acceptance of the work. TKDA in writing of the particular item that is alleged to be incorrect within 15 days from ARTICLE 8. CLIENT'S RESPONSIBILITIES the date of invoice, in which case all undisputed items shall be paid and amounts in A. To permit TKDA to perform the services required hereunder, the CLIENT shall dispute shall become due upon an adjudicated resolution or upon agreement of the parties. All accounts unpaid after 30 days from the date of original invoice shall be supply,in proper time and sequence,the following at no expense to TKDA: subject to a service charge of 1-112%per month,or the maximum amount authorized by 1. All necessary information regarding its requirements as necessary for orderly law, whichever is less. TKDA shall be entitled to recover all reasonable costs and progress of the work. disbursements, including reasonable attorneys' fees, incurred in connection with 2. Designate in writing a person to act as CLIENT's representative with respect to collecting amounts owed by CLIENT. In addition,TKDA may,after giving seven days' the services to be rendered under this Agreement. Such person shall have written notice to the CLIENT,suspend services under this Agreement until TKDA has authority to transmit instructions,receive instructions,receive information,and been paid in full for all amounts then due for services,expenses and charges. CLIENT interpret and define CLIENT's policies with respect to TKDA's services. agrees that it shall waive any and all claims against TKDA and that TKDA shall not be 3. Furnish,as required for performance of TKDA's services(except to the extent responsible for any claims arising from suspension of services hereunder. provided otherwise in the Engagement Letter or any Exhibits attached thereto), ARTICLE 4. EXTRA WORK data prepared by or services of others,including without limitation,soil borings, If TKDA is of the opinion that any work it has been directed to perform is beyond the probing and subsurface explorations,hydrographic and geohydrologic surveys, Scope of this Agreement,or that the level of effort required exceeds that estimated due laboratory tests and inspections of samples, materials and equipment; to changed conditions and thereby constitutes extra work,it shall notify the CLIENT of appropriate professional interpretations of all of the foregoing;environmental that fact. Upon written notification to CLIENT, TKDA shall be entitled to additional assessment and impact statements; property, boundary, easement, compensation for same,and to an extension of time for completion absent timely written right-of-way, topographic and utility surveys; property descriptions; zoning, objection by CLIENT to additional services. deed and other land use restriction;and other special data not covered in the ARTICLE 5. ABANDONMENT,CHANGE OF PLAN AND TERMINATION Engagement Letter or any Exhibits attached thereto. Either Party has the right to terminate this Agreement upon seven days'written notice for 4. Provide access to,and make all provisions for TKDA to enter upon publicly or convenience of either CLIENT or TKDA. In addition,the CLIENT may at any time reduce privately owned property as required to perform the work. the scope of this Agreement. Such reduction in scope shall be set forth in a written 5. Act as liaison with other agencies or involved parties to carry out necessary notice from the CLIENT to TKDA. In the event of unresolved dispute over change in coordination and negotiations; furnish approvals and permits from all scope or changed conditions,this Agreement may also be terminated upon seven days' governmental authorities having jurisdiction over the project and such written notice as provided above. approvals and consents from others as may be necessary for completion of the In the event of a termination or reduction in scope of the project work,TKDA shall be project. paid for the work performed and expenses incurred on the project work and for any 6. Examine all reports,sketches, drawings,specifications and other documents completed and abandoned work for which payment has not been made,computed in prepared and presented by TKDA, obtain advice of an attorney, insurance accordance with the provisions of the Engagement Letter and payment of a reasonable counselor or others as CLIENT deems necessary for such examination,and amount for services and expenses directly attributable to termination,both before and render in writing decisions pertaining thereto within a reasonable time so as not after the effective date of termination, such as reassignment of personnel, costs of to delay the services of TKDA_ terminating contracts with TKDA's subconsultants, costs of producing copies of file 7. Give prompt written notice to TKDA whenever the CLIENT observes or materials and other related close-out costs. otherwise becomes aware of any development that affects the scope or timing ARTICLE 6. DISPOSITION OF PLANS,REPORTS AND OTHER DATA of TKDA's services or any defect in the work of Construction Contractor(s), All documents,including reports,drawings,calculations,specifications,CADD materials, subconsultants or TKDA_ computer software or hardware or other work product prepared by TKDA pursuant to this 8. Initiate action,where appropriate,to identify and investigate the nature and Agreement are TKDA's Instruments of Service and TKDA retains all ownership interests extent of asbestos, petroleum and/or pollution in the project and to abate in said Instruments of Service, including copyrights. Any use or reuse of such and/or remove the same as may be required by federal,state or local statute, Instruments of Service, except for the specific purpose intended, by the CLIENT or ordinance, code, rule, or regulation now existing or hereinafter enacted or others without written consent, verification, or adaptation by TKDA will be at the amended. For purposes of this Agreement, 'pollution" and 'pollutant" shall CLIENT's risk and full legal responsibility. In this regard,the CLIENT will indemnify and mean any solid, liquid, gaseous or thermal irritant or contaminant, including hold harmless TKDA from any and all suits or claims of third parties arising out of such petroleum, smoke, vapor, soot, alkalis, chemicals and hazardous or toxic use or reuse which is not specifically verified,adapted,or authorized by TKDA. waste. Hazardous Materials means any substance, waste, pollutant or Copies of documents that may be relied upon by the CLIENT are limited to the printed contaminant(including petroleum)now or hereafter included within such terms copies(also known as hard copies)that are signed or sealed by TKDA's Engineer or under any federal, state or local statute, ordinance, code, rule or regulation Architect. Files in electronic format furnished to the CLIENT are only for convenience of now existing or hereinafter enacted or amended. Waste further includes the CLIENT. Any conclusion or information obtained or derived from such electronic files materials to be recycled,reconditioned or reclaimed. CLIENT further agrees it TKDA GENERAL PROVISIONS JULY 2009(E/0)