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Professional Services Agreement
<br />Arden Manor and Floral Parks
<br />Playground Equipment Replacement and Reconstruction
<br />Design and Construction Administration Services
<br />November 10, 2021
<br />Page 10 of 14
<br />
<br />Version2.3 02052021
<br />8.15 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 />8.16 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 />8.17 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, specifications or design intents not be followed, or for problems resulting from others' failure
<br />to obtain and/or follow COMPANY’S guidance with respect to any errors, omissions, inconsistencies,
<br />ambiguities or conflicts which are detected or alleged to exist in or as a consequence of impl ementing
<br />COMPANY’S plans, specifications or other instruments of service. Accordingly, the CLIENT waives any claim
<br />against COMPANY, and agrees to defend, indemnify and hold COMPANY harmless from any claim for injury
<br />or losses that results from failure to follow COMPANY’S plans, specifications or design intent, or for failure to
<br />obtain and/or follow COMPANY’S guidance with respect to any alleged errors, omissions, inconsistencies,
<br />ambiguities or conflicts contained within or arising as a result of implement ing COMPANY’S plans, specifications
<br />or other instruments of service. The CLIENT also agrees to compensate COMPANY for any time spent and
<br />expenses incurred remedying CLIENT’s failures according to COMPANY’S prevailing fee schedule and
<br />expense reimbursement policy.
<br />8.18 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 />8.19 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
<br />shall retain copies of the work performed by COMPANY in electronic form only for information and use by
<br />CLIENT for the specific purpose for which COMPANY was engaged. Said material shall not be used by CLIENT
<br />or transferred to any other party, for use in other projects, additions to this project, or any other purpose for
<br />which the material was not strictly intended by COMPANY without COMPANY’s express written permission.
<br />Any unauthorized use or reuse or modifications of this material shall be at CLIENT’S sole risk. Furthermore,
<br />the CLIENT agrees to defend, indemnify, and hold COMPANY harmless from all claims, injuries, damages,
<br />losses, expenses, and attorneys’ fees arising out of the modification or reuse of these materials.
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