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Professional Services Agreement
<br />Little Lake Johanna and Pike Lake Stormwater Retrofit Analysis
<br />220191
<br />09/21/2022
<br />Page 9 of 11
<br />
<br />Version2.3 02052021
<br />employees, and consultants, harmless from and against any and all claims, damages, and expenses, whether
<br />direct, indirect, or consequential, including, but not limited to, attorney fees and Court costs, arising out of, or
<br />resulting from the discharge, escape, release, or saturation of smoke, vapors, soot, fumes, acid, alkalis, toxic
<br />chemicals, liquids gases, or any other materials, irritants, contaminants, or pollutants in or into the atmosphere,
<br />or on, onto, upon, in, or into the surface or subsurface of soil, water, or watercourses, objects, or any tangible
<br />or intangible matter, whether sudden or not.
<br />It is acknowledged by both parties that COMPANY’S Scope of Services does not include any services related
<br />to asbestos or hazardous or toxic materials. In the event COMPANY or any other party encounters asbestos
<br />or hazardous or toxic materials at the job site, or should it become known in any way that such materials may
<br />be present at the job site or any adjacent areas that may affect the performance of COMPANY’S services,
<br />COMPANY may, at its option and without liability for consequential or any other damages, suspend performance
<br />of services on the project until the CLIENT retains appropriate specialist consultant(s) or contractor(s) to identify,
<br />abate and/or remove the asbestos or hazardous or toxic materials, and warrants that the job site is in full
<br />compliance with applicable laws and regulations.
<br />Nothing contained within this AGREEMENT shall be construed or interpreted as requiring COMPANY to assume
<br />the status of a generator, storer, transporter, treater, or disposal facility as those terms appear within the
<br />Resource Conservation and Recovery Act, 42 U.S.C.A., §6901 et seq., as amended, or within any State statute
<br />governing the generation, treatment, storage, and disposal of waste.
<br />8.24 Certificate of Merit
<br />The CLIENT shall make no claim for professional negligence, either directly or in a third party claim, against
<br />COMPANY unless the CLIENT has first provided COMPANY with a written certification executed by an
<br />independent design professional currently practicing in the same discipline as COMPANY and licensed in the
<br />State in which the claim arises. This certification shall: a) contain the name and license number of the certifier;
<br />b) specify each and every act or omission that the certifier contends is a violation of the standard of care
<br />expected of a design professional performing professional services under similar circumstances; and c) state in
<br />complete detail the basis for the certifier's opinion that each such act or omission constitutes such a violation.
<br />This certificate shall be provided to COMPANY not less than thirty (30) calendar days prior to the presentation
<br />of any claim or the institution of any judicial proceeding.
<br />8.25 Limitation of Liability
<br />In recognition of the relative risks and benefits of the Project to both the CLIENT and the COMPANY, the risks
<br />have been allocated such that the CLIENT agrees, to the fullest extent permitted by law, to limit the liability of
<br />the COMPANY and COMPANY’S officers, directors, partners, employees, shareholders, owners and sub -
<br />consultants for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from
<br />any cause or causes, including attorneys’ fees and costs and expert witness fees and costs, so that the total
<br />aggregate liability of the COMPANY and COMPANY’S officers, directors, partners, employees, shareholders,
<br />owners and sub-consultants shall not exceed $50,000.00, or the COMPANY’S total fee for services rendered
<br />on this Project, whichever is greater. It is intended that this limitation apply to any and all liability or cause of
<br />action however alleged or arising, unless otherwise prohibited by law.
<br />8.26 Drywells, Underdrains and Other Infiltration Devices
<br />Services provided by COMPANY under this AGREEMENT do NOT include the geotechnical design of drywells,
<br />underdrains, injection wells or any other item that may be devised for the purpose of removing water from the
<br />CLIENT’S property by infiltration into the ground. Due to the high variability of soil types and conditions such
<br />devices will not be reliable in all cases. While for this reason COMPANY does not recommend the use of these
<br />devices, in some cases their use may be necessary to obtain an adequate amount of are a for development on
<br />the CLIENT’S property. Since the use of these devices is intended to enhance the value of the CLIENT’S
<br />property and, in some cases, allow development that would otherwise not be possible, the CLIENT will assume
<br />all risks inherent in the design and construction of these devices, unless the contractor or a Geotechnical
<br />Engineer assumes these risks. Typical risks include but are not limited to:
<br />• Failure to obtain the required release rate;
<br />• Variability of the soils encountered during construction from those encountered in soil borings. (Soils
<br />can vary widely over a small change in location, horizontal or vertical, particularly with regards to
<br />permeability);
<br />• Failure of the device due to siltation, poor construction or changes in the water table;
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