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05-10-21-R
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Professional Services Agreement <br />Hamline Avenue and Shorewood Drive Improvement Project <br />Job Number: 181582 <br />5/3/2021 <br />Page 7 of 10 <br /> <br />Version2.3 5.3.2021 <br />6.11 Governing Law and Jurisdiction <br />The CLIENT and the COMPANY agree that this AGREEMENT and any legal actions concerning its validity, <br />interpretation and performance shall be governed by the laws of the State of Minnesota without regard to any <br />conflict of law provisions, which may apply the laws of other jurisdictions. <br />It is further agreed that any legal action between the CLIENT and the COMPANY arising out of this <br />AGREEMENT or the performance of the services shall be brought in a court of competent jurisdiction in the <br />State of Illinois. <br />6.12 Attorney’s Fees <br />If litigation arises relating to this AGREEMENT, the Court in such litigation shall award reasonable costs and <br />expenses, including attorney fees, to the prevailing party. <br />6.13 Ownership of Instruments of Service <br />All reports, plans, specifications, field data, field notes, laboratory test data, calculations, estimates and other <br />documents including all documents on electronic media prepared by COMPANY as instruments of service shall <br />remain the property of COMPANY. COMPANY shall retain these records for a period of five (5) years following <br />completion/submission of the records, during which period they will be made available to the CLIENT at all <br />reasonable times. <br />6.14 Reuse of Documents <br />All project documents including, but not limited to, plans and specifications furnished by COMPANY under this <br />project are intended for use on this project only. Any reuse, without specific written verification or adoption by <br />COMPANY, shall be at the CLIENT's sole risk, and CLIENT shall defend, indemnify and hold harmless <br />COMPANY from all claims, damages and expenses including attorneys’ fees arising out of or resulting <br />therefrom. <br />Under no circumstances shall delivery of electronic files for use by the CLIENT be deemed a sale by the <br />COMPANY, and the COMPANY makes no warranties, either express or implied, of merchantability and fitness <br />for any particular purpose. In no event shall the COMPANY be liable for indirect or consequential damages as <br />a result of the CLIENT’s use or reuse of the electronic files. <br />6.15 Failure to Abide by Design Documents or To Obtain Guidance <br />The CLIENT agrees that it would be unfair to hold COMPANY liable for problems that might occur should <br />COMPANY’S plans or specifications not be followed, or for problems resulting from others' failure to obtain <br />and/or follow COMPANY’S guidance with respect to any errors, omissions, inconsistencies, ambiguities or <br />conflicts which are detected or alleged to exist in or as a consequence of implementing COMPANY’S plans, <br />specifications or other instruments of service. Accordingly, the CLIENT waives any claim against COMPANY, <br />and agrees to defend, indemnify and hold COMPANY harmless from any claim for injury or losses that results <br />from failure to follow COMPANY’S plans or specifications. <br />6.16 Opinion of Probable Construction Cost <br />As part of the Deliverables, COMPANY may submit to the CLIENT an opinion of probable cost required to <br />construct work recommended, designed, or specified by COMPANY, if required by CLIENT. COMPANY is not <br />a construction cost estimator or construction contractor, nor should COMPANY’S rendering an opinion of <br />probable construction costs be considered equivalent to the nature and extent of service a construction cost <br />estimator or construction contractor would provide. This requires COMPANY to make a number of assumptions <br />as to actual conditions that will be encountered on site; the specific decisions of other design professionals <br />engaged; the means and methods of construction the contractor will employ; the cost and extent of labor, <br />equipment and materials the contractor will employ; contractor's techniques in determining prices and market <br />conditions at the time, and other factors over which COMPANY has no control. Given the assumptions which <br />must be made, COMPANY cannot guarantee the accuracy of its opinions of cost, and in recognition of that fact, <br />the CLIENT waives any claim against COMPANY relative to the accuracy of COMPANY’S opinion of probable <br />construction cost. <br />6.17 Design Information in Electronic Form <br />Because electronic file information can be easily altered, corrupted, or modified by other parties, either <br />intentionally or inadvertently, without notice or indication, COMPANY reserves the right to remove itself from its <br />ownership and/or involvement in the material from each electronic medium not held in its possession. CLIENT
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