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east and disbursements; Including reasonable attamey's fees,
<br />incurred in connection with coiled ing amounts owed by Client.
<br />2.Should taxes,.fees•or costs be imposed, they shall beln addition to
<br />Consultant's agreed upon .compensaticn.
<br />3.Notwithstanding anything to the contrary herein, Consultantmay
<br />pursue collection of past due invoices without the necessity of any
<br />mediation proceedings.
<br />SECTION IV — GENERAL CONSIDERATIONS
<br />A. Standards of Performance
<br />1.The standard of care.for at professlonal.engineerin0 and related
<br />services performed o.rfumished by. Con sul[an t underthis. Agreement
<br />will be the.care and skit ordinarily: exercised by members of
<br />CcnsultanNs,ptdfeAon practicing under similar circumstances, at the
<br />same.lime and In the same locality. Consultant makes no warranties;
<br />express or implied, under this Agreement or otherwise, in connection
<br />With its Services.
<br />2.Con sultant heither guarantees the performance of any.Contractornor
<br />assumes. responsibility for ahy Contractor's failure to furnish and
<br />perform the work in accordance with its construation contractor the
<br />ccnstructlon documents prepared by Consultant. Client
<br />acknowledges Consultant will not direct; supervise or: control the work
<br />of. construct fan contractors or their subcontractors at the site or
<br />otherwise. Consultant shall have no authority over or responsibilityfoe
<br />the contractor's acts or amissions, nor for its: means; methods, a
<br />prace dures of construe@on: Consultant's Services do not indude .
<br />review or evaluation of the Oil ent's}.contractars or subcontractor's.
<br />safety rneasures; or site safety orfumis.hing or performing any of
<br />the C ontra does work,
<br />3..ConWit ant's.Opinlons'.af Probable.C.onstructlon Ccst are provided if
<br />agreed upon in writing and made on the basis of.Ccnsultant's
<br />experience and qualifications. Consultant has na control aver the cast
<br />of labor, materials, equipment or service furnished by others, or over
<br />the. Contractor's methods of determining pnces,.or over .competitive
<br />bidding or market.condit€on61 Consultant cannot and rises not
<br />guarantee that proposals, bids or actual canstructio0 cost.will riot
<br />vary from Opinions of Probable Ccnstruction Cost. pre pared by
<br />Consultant: If Cl€ent wishes greater assurance as to construction
<br />costs; Client shall employ an independent cost estimator.
<br />B. Indemnityfor Environmental Issues
<br />1.Con sultant is not a user,.generator, handler, operator, arranger,.
<br />Storer, transporter, or dispaser.of hazardous. or toxic.substances.
<br />Therefore the Client agrees to hold harmless, indemnify, and :defend.
<br />Consultant and Consultant's officers, directors, subcbnsultant(s),
<br />employees and agents: from. and against any and all claims; lasses;
<br />damages; Ilability and.costs, including but not limited to costs of
<br />defense; arising. out of or in any way. connected with, the presence,
<br />discharge, release, or escape of hazardous or toxic substances,
<br />patlutents .or contaminants of any kind at the site,
<br />C. Limitations on Liability
<br />1.The Client hereby agrees that to the fullest extentpermitted by [aw.,
<br />Consultant's total liability to the Ct€entfor all injuries, claims, losses,
<br />expenses, or damages. whatsceverarising out of or in any way.
<br />related to the Project ar:this.Agreement from any. cause or causes
<br />€ncludIng, but natlimited.to, Consultant's negligence, errors,
<br />omissions, strict liability, beach of contractor breach of warranty
<br />shall nat.exceed five hundred thousand dollars ($600.000). Ih the
<br />event Client desires I€mlts of liability in.excess of those provided in
<br />this paragraph, Client shalIadvise Consultant in writing and agree
<br />that Consultant's fee shall Inore.ase by 10/. for, each additional five.
<br />hundred thousand dcHars of Iiability limits, up to.a maximum limit.of
<br />Iiabliity of five million dollars ($5,000,000),
<br />2.Neither Party shall be liable to the other forcon damages;
<br />including without limitation lost.rentals; increased rental expenses;
<br />loss of use; loss of income; lost profit, financing, business,. or
<br />reputation; and loss of managementoremployee productivity,
<br />incurred.byone another or the'r.subsidiarfes or successors,
<br />regardless.of whether such dain age s:.are.fc eseeabie and are caused
<br />by.brea0 of contract, vAllfu1.misconduct,.negligent. act or amissicri .dr
<br />other wrangfbl act of elt her of them. Consul;ant expressiy.disdaims
<br />any duty to defend Client for any alleged actions or damages.
<br />3, It is intended by the parties to this Agreement that Consultant's
<br />Services shall not subject Consultant's employees,.offioers or
<br />directors to any personal legal.exposure for the risks assaciated *th
<br />thisAgreement, The Client agrees that. as the Client's sole and.
<br />exclusive -remedy, any claim, demand or suit shall be directed andfor
<br />General Conditions - 2
<br />{Rev.05A1 ,22]
<br />asserted: only against.Cdnsultant, and not against any of Consultant's
<br />individual employees, :officers or directors, and Client knowingly
<br />waives all such claims against Consultant Individual employees,.
<br />officers or directors.
<br />4. Causes of action between the parties fc:this Agreement pertaining to
<br />acts a failures to act stlalI be deeimed to have accrued, and the
<br />applicable statutes of IlmItations:sha11 comM6nce.to run, not .Iater
<br />tin an either the date of Substantial.Complotion .for acts or failures to
<br />act occurring prior to substanti at completion or the date of issuance of
<br />the final invoice for acts or.failures to act accurnng after Substantial
<br />Completion. In no event shall such statutes oft€mltations corn menoe
<br />to.run any later than the date .whenthe Serytces are substantially
<br />completed:
<br />D.. Assignment
<br />f .Neither party to this Agreement shall transfer, sublet orassign any
<br />rights under, or interests in, this Agreement. or claims based'on.this
<br />Agreement:without the prior wri lien consent of the other party, Any
<br />assignment in violatioh of this subsectlon shall be null and. void.
<br />E. Dispute Resolution
<br />1.Any dispute between Client and Consultant arising out of or relating.
<br />to this Agreement or the 'Se rvices =except for%unpaid invoices which
<br />are:gaverned bySectian III) shall be.subrnitted to. medlation as.a
<br />precondition to litigation unless the.parties mutua]ly agree otEierWse.
<br />Mediation shall occur within 60 days of a written demand for
<br />mediation unless :Consultant and Client mutually agree otherwise.
<br />2,Any :dispute nat settled through mediation shall be.settled through
<br />litigation in the. state and county where.the Project at issua is located.
<br />SECTION V---INTELLECTUAL PROPERTY
<br />A, Prupdatary Information
<br />1:AII documents; in reports, drawings, calculations,
<br />specifications, CADO materials, computers software.or hardware or
<br />other work product prepared by Consultant pursuant to this.
<br />Agreement are Consultant's Instruments of Service.{°instruments of
<br />Seniice'l Consultant retains all ownership interests in Instrurents of
<br />Service, including all available copyrights.
<br />2.Notwithstanding anything to the contrary,. Consultant shaf! retain all:cf
<br />itsrights in its proprietary information including:without Iiinitaticn its
<br />rnethodologiesarid meth ads of analysis, ideas, concepts,
<br />expressions, inventions, know:hcw, methods, techniques, skills,
<br />knowledge, and.experionce possessed by Consultant prior to, a
<br />acquired by Consultant during, the performance of this Agreement.'
<br />and the same shall nat be deenied.to be work product .ar workfor hire
<br />and Consultant shall not. be restricted in anyway vAth respect thereto.
<br />Consultant :shall retain full rights to electronic data and 6e.drawinot,
<br />speclfications, including .those in electronic form, prepared. by
<br />Consultant and its. sub ccnsultants and the right to reuse component
<br />information. contained in them in. the normal course of Consultant's
<br />professional activities.
<br />B. Client Use of Instruments of Service
<br />1. Provided that Consultant has been paid in full for. its Services, Client
<br />sha]I have the right in the .farm of a non exdusvo license to use
<br />Instruments of Service delivered. to Clientexclusiveiyfor purposes of
<br />constructing, using, maintaining; altering and adding to the.Project.
<br />Consultant shall Be deern ed.to be the author of. such Instruments of
<br />Service, electronic data or documents, and shall be given appropriate
<br />credit in anypubito display of such Instruments of SeMce.
<br />.2.Records requests. or requests far additional copies of instruments of
<br />Services outside.of the soope of :Services; incfuding.sub Reenas
<br />directed fro m.oron behalf of:Clientare avail able. to Client subject to
<br />Consultant's. current rates ched ul 6. ConsultaritshalI not. tie regOre d
<br />to.provide CAD files or documents uNoss .specifi call y agreed to in
<br />writing as part of this Agreement.
<br />C. 'Reuse of Documents
<br />1.AII Instrum ent6 of Service prepared by Consultant pursuant to this
<br />Agreement are. nat. intended cr represented to be suitable far reuse
<br />by the Client or others on extensions of ttie Prate cl or on any. other
<br />Project. Any reuse of the Instruments of Service without written
<br />consent or adaptation. by Consultant for the specific.purpose intended.
<br />will be atthe Client's sole risk.And without liability or legal exposure to
<br />Con sultant'.and the Client shall release.Consultantfrom all claims
<br />arising fram.such use, Client -shall also defend; indemnify, and hold
<br />harmless Consultant from all .claims, damages, losses, and expenses
<br />including :attorneys' fees arlsing out of or resuRing from reuse of
<br />Consultant documents without written consent:
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