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will, where appropriate, endeavor to identify, remove and/or encapsulate damages,losses and expenses including attomeys'fees arising out of,or resulting from, asbestos products,petroleum,pollutants or Hazardous Materials located in the any interpretation, clarification, substitution acceptance, shop drawing or sample project area prior to accomplishment by TKDA of any work on the project. approval or modification of such documentation issued or carried out by CLIENT or If TKDA encounters,or reasonably suspects that it has encountered,asbestos others. Nothing contained in this paragraph shall be construed to release TKDA(or or pollution in the project, TKDA shall cease activity on the project and TKDA's professional associates or consultants) from liability for failure to perform in promptly notify the CLIENT,who shall proceed as set forth above. Unless accordance with professional standards any duty or responsibility which TKDA has otherwise specifically provided in the Engagement Letter,the services to be undertaken or assumed under this Agreement provided by TKDA do not include identification of asbestos or pollution, and ARTICLE 11. INSURANCE TKDA has no duty to identify or attempt to identify the same within the area of TKDA shall procure and maintain insurance for protection from claims against it under the project. workers' compensation acts, claims for damages because of bodily injury including With respect to the foregoing,CLIENT acknowledges and agrees that TKDA is personal injury,sickness or disease or death of any and all employees,and from claims not a user,handler,generator,operator,treater,Storer,transporter or disposer against it for damages because of injury to or destruction of property. of asbestos,petroleum,Pollutant,or other Hazardous Materials which may be Also,TKDA shall procure and maintain professional liability insurance for protection from encountered by TKDA on the project. CLIENT agrees to hold harmless, claims arising out of performance of professional services caused by any negligent act, indemnify and defend TKDA and TKDA's officers, subconsultant(s), error,or omission for which TKDA is legally liable. subcontractor(s),employees and agents from and against any and all claims, Certificates of insurance will be provided to the CLIENT upon request. lawsuits, damages, liability and costs, including, but not limited to, costs of defense,arising out of or in any way connected with the presence,discharge, ARTICLE 12. ASSIGNMENT release, or escape of asbestos, petroleum or other Hazardous Materials or This Agreement, being intended to secure the personal service of the individuals waste on the site. This indemnification is intended to apply only to existing employed by and through whom TKDA performs work hereunder,shall not be assigned, conditions present at the site prior to TKDA's commencement of services,and sublet or transferred without the written consent of TKDA and the CLIENT. Any does not apply to conditions that arise subsequent to TKDA's commencement assignment of the Agreement, or claims arising under or relating to the Agreement of services that are caused or created by TKDA_ without the written consent of both Parties shall be null and void- 9- Provide such accounting, independent cost estimating and insurance ARTICLE 13. CONTROLLING LAW counseling services as may be required for the project,such legal services as This Agreement is to be governed by the laws of the State of Minnesota. the CLIENT may require or TKDA may reasonably request with regard to legal ARTICLE 14. SEVERABILITY issues pertaining to the project including any that may be raised by Any provision or portion thereof in this Agreement which is held to be void or contractor(s),such auditing service as CLIENT may require to ascertain how or unenforceable under any law shall be deemed stricken,and all remaining provisions shall for what purpose any contractor has used the monies paid under the continue to be valid and binding between CLIENT and TKDA_ construction contract,and such inspection services as CLIENT may require to ascertain that contractor(s) are complying with any law, rule, regulation, ARTICLE 15. WAIVER OF CONSEQUENTIAL DAMAGES ordinance,code or order applicable to their furnishing and performing the work. CLIENT and TKDA waive consequential damages for claims,disputes or other matters in 10. Provide'record"drawings and specifications for all existing physical plants or question arising out of or relating to TKDA's services under this Agreement. This mutual facilities which are pertinent to the project waiver of consequential damages applies and survives termination of this Agreement. 11. Act promptly to approve all pay requests, Supplemental Agreements, or ARTICLE 16. LIMITATION OF LIABILITY requests for information by TKDA as set forth herein. In recognition of the relative risks of CLIENT and TKDA relating to the work,CLIENT 12. Require all Utilities with facilities in the CLIENT's right-of-way to locate and agrees,to the extent permitted by law,that TKDA's liability to the CLIENT or anyone mark said utilities upon request, relocate and/or protect said utilities as claiming through CLIENT for any and all claims,losses,costs,or damages whatsoever determined necessary to accommodate work of the project,submit a schedule arising out of,resulting from or in any way related to the Project or the Agreement from of the necessary relocation/protection activities to the CLIENT for review and any cause or causes including,but not limited to,the negligence,professional errors or comply with agreed upon schedule. omissions,strict liability or breach of contract,or warranty express or implied,of TKDA or 13. Provide other services, materials, or data as may be set forth in the its officers,directors,partners,employees,agents,or consultants,or any of them,shall Engagement Letter or any Exhibits attached thereto. not exceed the total insurance proceeds paid or available on behalf of or to TKDA by its insurers in settlement or satisfaction of CLIENT's claims against TKDA under the terms B. TKDA shall be entitled to rely on the accuracy and completeness of information and conditions of TKDA's insurance policies applicable thereto. furnished by the CLIENT. If TKDA finds that any information furnished by the CLIENT is ARTICLE 17. CONFLICT RESOLUTION in error or is inadequate for its purpose,TKDA shall promptly notify the CLIENT. ARTICLE 9. OPINIONS OF COST In an effort to resolve any conflicts that arise during the design or construction of the project or following the completion of the project,the CLIENT and TKDA agree that all Opinions of probable project cost, construction cost, financial evaluations, feasibility disputes between them arising out of or relating to this Agreement shall be submitted to studies, economic analyses of alternate solutions and utilitarian considerations of nonbinding mediation as a precondition to any formal legal proceedings. operations end maintenance costs provided for in the Engagement Letter or any Exhibits ARTICLE 18. CONFIDENTIALITY attached thereto,are made on the basis of TKDA's experience and qualifications and represent TKDA's judgment as an experienced and qualified design professional. It is TKDA agrees to keep confidential and not to disclose to any person or entity,other than recognized that TKDA does not have control over the cost of labor,material,equipment TKDA's employees, subconsultants and the general contractor and subcontractors, if or services furnished by others or over market conditions or contractors' methods of appropriate,any data and information furnished to TKDA and marked CONFIDENTIAL determining their prices, and that any evaluation of any facility to be constructed, or by the CLIENT. These provisions shall not apply to information in whatever form that acquired, or work to be performed on the basis of TKDA's cost opinions, must of comes into the public domain,nor shall it restrict TKDA from giving notices required by necessity, be speculative until completion of construction or acquisition. Accordingly, law or complying with an order to provide information or data when such order is issued TKDA does not guarantee that proposals,bids or actual costs will not substantially vary by a court, administrative agency or other authority with proper jurisdiction, or if it is from opinions,evaluations or studies submitted by TKDA to CLIENT hereunder. TKDA reasonably necessary for TKDA to complete services under the Agreement or defend assumes no responsibility for the accuracy of opinions of probable project costs or itself from any suit or claim. construction costs,and provides these estimates for the sole convenience of the CLIENT ARTICLE 19. UNDERGROUND UTILITIES for the purposes of general project budgeting. If authorized in the Engagement Letter,TKDA and/or its authorized subconsultant will ARTICLE 10. CONSTRUCTION PHASE SERVICES conduct the research that in its professional opinion is necessary and will prepare a plan CLIENT acknowledges that it is customary for the Architect or Engineer who is indicating the locations intended for subsurface penetrations with respect to assumed responsible for the preparation and furnishing of Drawings and Specifications and other locations of underground improvements. Such services by TKDA or its subconsultant will construction-related documents to be employed to provide professional services during be performed in a manner consistent with the ordinary standard of care. The CLIENT the Construction Phases of the project,(1)to interpret and clarify the documentation so recognizes that the research may not identify all underground improvements and that the furnished and to modify the same as circumstances revealed during bidding and information upon which TKDA relies may contain errors or may not be complete. construction may dictate, (2) in connection with acceptance of substitute of or-equal The CLIENT agrees,to the fullest extent permitted by law,to waive all claims and causes items of materials and equipment proposed by bidders and contractor(s), (3) in of action against TKDA and anyone for whom TKDA may be legally liable,for claims by connection with review of shop drawings and sample submittals,and(4)as a result of CLIENT or its contractors for delay or additional compensation relating to the and in response to TKDA's detecting in advance of performance of affected work identification,removal,relocation,or restoration of utilities,or damages to underground inconsistencies or irregularities in such documentation. CLIENT agrees that if TKDA is improvements resulting from subsurface penetration locations established by TKDA_ not employed to provide such professional services during the Construction Phases of the project,TKDA will not be responsible for,and CLIENT shall indemnify and hold TKDA (and TKDA's professional associates and consultants) harmless from, all claims, TKDA GENERAL PROVISIONS JULY 2009(E/0)