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disbursements, including reasonable attorney's fees, incurred in
<br />connection with collecting amounts owed by Client.
<br />3.Should taxes, fees or costs be imposed, they shall be in addition to
<br />Consultant's agreed upon compensation.
<br />4. Notwithstanding anything to the contrary herein, Consultant may
<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 all professional engineering and related
<br />services performed or furnished by Consultant under this Agreement
<br />will be the care and skill ordinarily exercised by members of
<br />Consultant's profession practicing under similar circumstances at the
<br />same time 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.Consultant neither guarantees the performance of any Contractor nor
<br />assumes responsibility for any Contractor's failure to furnish and
<br />perform the work in accordance with its construction contract or the
<br />construction documents prepared by Consultant. Client acknowledges
<br />Consultant will not direct, supervise or control the work of construction
<br />contractors or their subcontractors at the site or otherwise. Consultant
<br />shall have no authority over or responsibility for the contractor's acts
<br />or omissions, nor for its means, methods, or procedures of
<br />construction. Consultant's Services do not include review or
<br />evaluation of the Client's, contractor's or subcontractor's safety
<br />measures, or job site safety or furnishing or performing any of the
<br />Contractor's work.
<br />3.Consultant's Opinions of Probable Construction Cost are provided if
<br />agreed upon in writing and made on the basis of Consultant's
<br />experience and qualifications. Consultant has no control over the cost
<br />of labor, materials, equipment or service furnished by others, or over
<br />the Contractor's methods of determining prices, or over competitive
<br />bidding or market conditions, Consultant cannot and does not
<br />guarantee that proposals, bids or actual construction cost will not vary
<br />from Opinions of Probable Construction Cost prepared by Consultant.
<br />If Client wishes greater assurance as to construction costs, Client
<br />shall employ an independent cost estimator.
<br />B. Indemnity for Environmental Issues
<br />1. on ultant is not a user, generator, handler, operator, arranger,
<br />Storer, transporter, or disposer of hazardous or toxic substances.
<br />Therefore the Client agrees to hold harmless, indemnify, and defend
<br />Consultant and Consultant's officers, directors, subconsultant(s),
<br />employees and agents from and against any and all claims; losses;
<br />damages; liability; 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 />pollutants or contaminants of any kind at the site.
<br />C. Limitations on Liability
<br />1.The Client hereby agrees that to the fullest extent permitted by law,
<br />Consultant's total liability to the Client for all injuries, claims, losses,
<br />expenses, or damages whatsoever arising out of or in any way related
<br />to the Project or this Agreement from any cause or causes including,
<br />but not limited to, Consultant's negligence, errors, omissions, strict
<br />liability, breach of contract or breach of warranty shall not exceed five
<br />hundred thousand dollars $ 00,000 . In the event Client desires limits
<br />of liability in excess of those provided in this paragraph, Client shall
<br />advise Consultant in writing and agree that Consultant's fee shall
<br />increase by 1% for each additional five hundred thousand dollars of
<br />liability limits, up to a maximum limit of liability of five million dollars
<br />$ ,000,000 .
<br />2. Neither Party shall be liable to the other for consequential 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 management or employee productivity,
<br />incurred by one another or their subsidiaries or successors,
<br />regardless of whether such damages are foreseeable and are caused
<br />by breach of contract, willful misconduct, negligent act or omission, or
<br />other wrongful act of either of them. Consultant expressly disclaims
<br />any duty to defend Client for any alleged actions or damages.
<br />3.lt is intended by the parties to this Agreement that Consultant's
<br />Services shall not subject Consultant's employees, officers or
<br />directors to any personal legal exposure for the risks associated with
<br />this Agreement. The Client agrees that as the Client's sole and
<br />exclusive remedy, any claim, demand or suit shall be directed and/or
<br />asserted only against Consultant, 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 to this Agreement pertaining to
<br />acts or failures to act shall be deemed to have accrued, and the
<br />applicable statutes of limitations shall commence to run, not later than
<br />either the date of Substantial Completion for acts or failures to act
<br />occurring prior to substantial completion or the date of issuance of the
<br />final invoice for acts or failures to act occurring after Substantial
<br />Completion. In no event shall such statutes of limitations commence
<br />to run any later than the date when the Services are substantially
<br />completed.
<br />D. Assignment
<br />1. Neither party to this Agreement shall transfer, sublet or assign any
<br />rights under, or interests in, this Agreement or claims based on this
<br />Agreement without the prior written consent of the other party. Any
<br />assignment in violation of this subsection shall be null and void.
<br />E. Dispute Resolution
<br />1.Any dispute between Client and Consultant arising out of or relating to
<br />this Agreement or the Services (except for unpaid invoices which are
<br />governed by Section III) shall be submitted to mediation as a
<br />precondition to litigation unless the parties mutually agree otherwise.
<br />Mediation shall occur within 60 days of a written demand for mediation
<br />unless Consultant and Client mutually agree otherwise.
<br />2.Any dispute not settled through mediation shall be settled through
<br />litigation in the state and county where the Project at issue is located.
<br />SECTION V — INTELLECTUAL PROPERTY
<br />A. Proprietary Information
<br />1.AII documents, including reports, drawings, calculations,
<br />specifications, CADD 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 />Service"). Consultant retains all ownership interests in Instruments of
<br />Service, including all available copyrights.
<br />2. Notwithstanding anything to the contrary, Consultant shall retain all of
<br />its rights in its proprietary information including without limitation its
<br />methodologies and methods of analysis, ideas, concepts,
<br />expressions, inventions, know how, methods, techniques, skills,
<br />knowledge, and experience possessed by Consultant prior to, or
<br />acquired by Consultant during, the performance of this Agreement
<br />and the same shall not be deemed to be work product or work for hire
<br />and Consultant shall not be restricted in any way with respect thereto.
<br />Consultant shall retain full rights to electronic data and the drawings,
<br />specifications, including those in electronic form, prepared by
<br />Consultant and its subconsultants 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 />shall have the right in the form of a nonexclusive license to use
<br />Instruments of Service delivered to Client exclusively for purposes of
<br />constructing, using, maintaining, altering and adding to the Project.
<br />Consultant shall be deemed to be the author of such Instruments of
<br />Service, electronic data or documents, and shall be given appropriate
<br />credit in any public display of such Instruments of Service.
<br />2. Records requests or requests for additional copies of Instruments of
<br />Services outside of the scope of Services, including subpoenas
<br />directed from or on behalf of Client are available to Client subject to
<br />Consultant's current rate schedule. Consultant shall not be required to
<br />provide CAD files or documents unless specifically agreed to in writing
<br />as part of this Agreement.
<br />C. Reuse of Documents
<br />1 All Instruments of Service prepared by Consultant pursuant to this
<br />Agreement are not intended or represented to be suitable for reuse by
<br />the Client or others on extensions of the Project 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 at the Client's sole risk and without liability or legal exposure to
<br />Consultant; and the Client shall release Consultant from all claims
<br />arising from such use. Client shall also defend, indemnify, and hold
<br />harmless Consultant from all claims, damages, losses, and expenses
<br />including attorneys' fees arising out of or resulting from reuse of
<br />Consultant documents without written consent.
<br />General Conditions - 2
<br />(Rev. 1 .0 .22
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