TOLTZ, KING, DUVALL, ANDERSON AND ASSOCIATES, INCORPORATED
<br />General Provisions of Engineer -Architect Agreement
<br />ARTICLE 1. GENERAL
<br />These General Provisions supplement and become part of the Agreement between Toltz,
<br />King, Duvall, Anderson and Associates, Incorporated, a Minnesota Corporation,
<br />hereinafter referred to as TKDA, and the other Party to the Agreement, hereinafter
<br />referred to as CLIENT, wherein the CLIENT engages TKDA to provide certain
<br />Engineering, Architectural, and/or Planning services. Either Party to this Agreement may
<br />be referred to as a "Party" or collectively as "Parties."
<br />As used herein, the term "Agreement" refers to (1) TKDA's original Engagement Letter or
<br />proposal (the "Engagement Letter") which forms the basis for the Agreement; (2) these
<br />General Provisions, and (3) any attached Exhibits, as if they were part of one and the
<br />same document. With respect to the order of precedence, any attached Exhibits shall
<br />govern over these General Provisions and the Engagement Letter shall govern over any
<br />attached Exhibits and these General Provisions.
<br />ARTICLE 2. PERIOD OF SERVICE
<br />The term of this Agreement for the performance of services hereunder shall be as set
<br />forth in TKDA's Engagement Letter. Any lump sum or estimated maximum payment
<br />amounts set forth in the Engagement Letter have been established in anticipation of the
<br />orderly and continuous progress of the project in accordance with the schedule set forth
<br />in the Engagement Letter or any Exhibits attached thereto.
<br />ARTICLE 3. COMPENSATION TO TKDA
<br />A. Compensation to TKDA for services shall be as designated in the Engagement
<br />Letter. The CLIENT shall make monthly payments to TKDA within 30 days of date of
<br />invoice.
<br />B. The CLIENT will pay the balance stated on the invoice unless CLIENT notifies
<br />TKDA in writing of the particular item that is alleged to be incorrect within 15 days from
<br />the date of invoice, in which case all undisputed items shall be paid and amounts in
<br />dispute shall become due upon an adjudicated resolution or upon agreement of the
<br />parties. All accounts unpaid after 30 days from the date of original invoice shall be
<br />subject to a service charge of 1-1/2% per month, or the maximum amount authorized by
<br />law, whichever is less. TKDA shall be entitled to recover all reasonable costs and
<br />disbursements, including reasonable attorneys' fees, incurred in connection with
<br />collecting amounts owed by CLIENT. In addition, TKDA may, after giving seven days'
<br />written notice to the CLIENT, suspend services under this Agreement until TKDA has
<br />been paid in full for all amounts then due for services, expenses and charges. CLIENT
<br />agrees that it shall waive any and all claims against TKDA and that TKDA shall not be
<br />responsible for any claims arising from suspension of services hereunder.
<br />ARTICLE 4. EXTRA WORK
<br />If TKDA is of the opinion that any work it has been directed to perform is beyond the
<br />Scope of this Agreement, or that the level of effort required exceeds that estimated due
<br />to changed conditions and thereby constitutes extra work, it shall notify the CLIENT of
<br />that fact. Upon written notification to CLIENT, TKDA shall be entitled to additional
<br />compensation for same, and to an extension of time for completion absent timely written
<br />objection by CLIENT to additional services.
<br />ARTICLE 5. ABANDONMENT, CHANGE OF PLAN AND TERMINATION
<br />Either Party has the right to terminate this Agreement upon seven days' written notice for
<br />convenience of either CLIENT or TKDA. In addition, the CLIENT may at any time reduce
<br />the scope of this Agreement. Such reduction in scope shall be set forth in a written
<br />notice from the CLIENT to TKDA. In the event of unresolved dispute over change in
<br />scope or changed conditions, this Agreement may also be terminated upon seven days'
<br />written notice as provided above.
<br />In the event of a termination or reduction in scope of the project work, TKDA shall be
<br />paid for the work performed and expenses incurred on the project work and for any
<br />completed and abandoned work for which payment has not been made, computed in
<br />accordance with the provisions of the Engagement Letter and payment of a reasonable
<br />amount for services and expenses directly attributable to termination, both before and
<br />after the effective date of termination, such as reassignment of personnel, costs of
<br />terminating contracts with TKDA's subconsultants, costs of producing copies of file
<br />materials and other related close-out costs.
<br />ARTICLE 6. DISPOSITION OF PLANS, REPORTS AND OTHER DATA
<br />All documents, including reports, drawings, calculations, specifications, CADD materials,
<br />computer software or hardware or other work product prepared by TKDA pursuant to this
<br />Agreement are TKDA's Instruments of Service and TKDA retains all ownership interests
<br />in said Instruments of Service, including copyrights. Any use or reuse of such
<br />Instruments of Service, except for the specific purpose intended, by the CLIENT or
<br />others without written consent, verification, or adaptation by TKDA will be at the
<br />CLIENT's risk and full legal responsibility. In this regard, the CLIENT will indemnify and
<br />hold harmless TKDA from any and all suits or claims of third parties arising out of such
<br />use or reuse which is not specifically verified, adapted, or authorized by TKDA.
<br />Copies of documents that may be relied upon by the CLIENT are limited to the printed
<br />copies (also known as hard copies) that are signed or sealed by TKDA's Engineer or
<br />Architect. Files in electronic format furnished to the CLIENT are only for convenience of
<br />the CLIENT. Any conclusion or information obtained or derived from such electronic files
<br />will be at the user's sole risk. If there is a discrepancy between the electronic files and
<br />the hard copies, the hard copies govern. In the event electronic copies of documents are
<br />made available to the CLIENT, the CLIENT acknowledges that the useful life of
<br />electronic media may be limited because of deterioration of the media, obsolescence of
<br />the computer hardware and/or software systems or other causes outside of TKDA's
<br />control. Therefore, TKDA makes no representation that such media will be fully usable
<br />beyond 30 days from date of delivery to CLIENT.
<br />If requested, at the time of completion or termination of the work, TKDA shall make
<br />available to the CLIENT at CLIENT's expense copies of the Instruments of Service upon
<br />(i) payment of amounts due and owing for work performed and expenses incurred under
<br />this Agreement, and (ii) fulfillment of the CLIENT's obligations under this Agreement.
<br />ARTICLE 7. CLIENT'S ACCEPTANCE BY PURCHASE ORDER
<br />In lieu of or in addition to execution of the Engagement Letter, the CLIENT may authorize
<br />TKDA to commence services by issuing a purchase order by a duly authorized
<br />representative. Such authority to commence services or purchase order shall
<br />incorporate by reference the terms and conditions of this Agreement. In the event the
<br />terms and conditions of this Agreement conflict with those contained in the CLIENT's
<br />purchase order, the terms and conditions of this Agreement shall govern.
<br />Notwithstanding any purchase order provisions to the contrary, no warranties, express or
<br />implied, are made by TKDA. In order to implement the intent of Parties to this
<br />Agreement, the Parties agree that the Engagement Letter, these General Provisions, and
<br />any Exhibits constitute the entire Agreement between them. The Parties further agree
<br />that the preprinted terms and conditions of any CLIENT -generated purchase order issued
<br />to request work pursuant to this Agreement will not apply to the work, regardless of
<br />whether TKDA executes the purchase order in acceptance of the work.
<br />ARTICLE 8. CLIENT'S RESPONSIBILITIES
<br />A. To permit TKDA to perform the services required hereunder, the CLIENT shall
<br />supply, in proper time and sequence, the following at no expense to TKDA:
<br />1. All necessary information regarding its requirements as necessary for orderly
<br />progress of the work.
<br />2. Designate in writing a person to act as CLIENT's representative with respect to
<br />the services to be rendered under this Agreement. Such person shall have
<br />authority to transmit instructions, receive instructions, receive information, and
<br />interpret and define CLIENT's policies with respect to TKDA's services.
<br />3. Furnish, as required for performance of TKDA's services (except to the extent
<br />provided otherwise in the Engagement Letter or any Exhibits attached thereto),
<br />data prepared by or services of others, including without limitation, soil borings,
<br />probing and subsurface explorations, hydrographic and geohydrologic surveys,
<br />laboratory tests and inspections of samples, materials and equipment;
<br />appropriate professional interpretations of all of the foregoing; environmental
<br />assessment and impact statements; property, boundary, easement,
<br />right-of-way, topographic and utility surveys; property descriptions; zoning,
<br />deed and other land use restriction; and other special data not covered in the
<br />Engagement Letter or any Exhibits attached thereto.
<br />4. Provide access to, and make all provisions for TKDA to enter upon publicly or
<br />privately owned property as required to perform the work.
<br />5. Act as liaison with other agencies or involved parties to carry out necessary
<br />coordination and negotiations; furnish approvals and permits from all
<br />governmental authorities having jurisdiction over the project and such
<br />approvals and consents from others as may be necessary for completion of the
<br />project.
<br />6. Examine all reports, sketches, drawings, specifications and other documents
<br />prepared and presented by TKDA, obtain advice of an attorney, insurance
<br />counselor or others as CLIENT deems necessary for such examination, and
<br />render in writing decisions pertaining thereto within a reasonable time so as not
<br />to delay the services of TKDA.
<br />7. Give prompt written notice to TKDA whenever the CLIENT observes or
<br />otherwise becomes aware of any development that affects the scope or timing
<br />of TKDA's services or any defect in the work of Construction Contractor(s),
<br />subconsultants or TKDA.
<br />8. Initiate action, where appropriate, to identify and investigate the nature and
<br />extent of asbestos, petroleum and/or pollution in the project and to abate
<br />and/or remove the same as may be required by federal, state or local statute,
<br />ordinance, code, rule, or regulation now existing or hereinafter enacted or
<br />amended. For purposes of this Agreement, "pollution' and "pollutant" shall
<br />mean any solid, liquid, gaseous or thermal irritant or contaminant, including
<br />petroleum, smoke, vapor, soot, alkalis, chemicals and hazardous or toxic
<br />waste. Hazardous Materials means any substance, waste, pollutant or
<br />contaminant (including petroleum) now or hereafter included within such terms
<br />under any federal, state or local statute, ordinance, code, rule or regulation
<br />now existing or hereinafter enacted or amended. Waste further includes
<br />materials to be recycled, reconditioned or reclaimed. CLIENT further agrees it
<br />TKDA GENERAL PROVISIONS JULY 2009 (E/O)
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