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