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<br />4.4.2 The Consultant shall maintain:
<br />
<br />1) Statutory workers compensation and employers' liability insurance
<br />coverage.
<br />
<br />2) Comprehensive general liability and automobile liability insurance
<br />coverage in the sum of not less than $1,000,000 each.
<br />
<br />4.5 Use of Instruments of Service
<br />
<br />Documents (including Digital Data) prepared by the Consultant, such
<br />as drawings, specifications and reports ("Consultant Documents") are
<br />instruments of the Consultant's professional services, and not
<br />products. The Consultant Documents are prepared for a specific
<br />Project and may not be used by the Client for other Projects. For
<br />health and safety reasons, the Client agrees it will not use the
<br />Consultant Documents (except for computer hydraulic or hydrologic
<br />modeling data) for other purposes or provide them to other persons. If
<br />the Client violates this provision, it waives any resulting claims against
<br />the Consultant, and agrees to defend and indemnify the Consultant
<br />from any resulting claim or liability (including reasonable attomeys'
<br />fees ).
<br />
<br />4.6 Diaital Data
<br />
<br />4.6.1 If included in Basic Services or Supplemental Services and
<br />as a convenience to the Client, the Consultant will furnish the Client
<br />with electronic data versions of certain written documents ("Digital
<br />Data") provided in hard copy fonn. In the event of any conflict between
<br />a hard copy document and the Digital Data, the hard copy document
<br />governs. The Digital Data shall be prepared in the current software in
<br />use by the Consultant and is not warranted to be compatible with other
<br />systems or software.
<br />
<br />4.6.2 Any Digital Data submitted by the Consultant to the Client is
<br />submitted for an acceptance period of 60 days ("Acceptance Period").
<br />Any defects that the Client discovers during this period and reports to
<br />the Consultant will be corrected by the Consultant at no extra charge.
<br />For correction of defects reported to the Consultant after the
<br />Acceptance Period, the Client shall compensate Consultant on an
<br />hourly basis at Consultant's nonnal billing rates. The Client
<br />understands that the Digital Data is perishable and the Client is
<br />responSible for maintaining it.
<br />
<br />4.7 Termination. Susoension or Abandonment
<br />
<br />4.7.1 The Client or the Consultant may tenninate or suspend this
<br />Agreement for substantial non-perfonnance by the other party,
<br />including without limitation the failure to make payments in accordance
<br />with this Agreement. The party tenninating or suspending this
<br />Agreement shall give seven days written notice to the other party.
<br />
<br />4.7.2 If the Project or the Consultant's services are suspended for
<br />more than 90 days, the Consultant may tenninate this Agreement upon
<br />seven days written notice to the Client. The Consultant shall have no
<br />liability on account of a suspension by the Client. If a suspended
<br />Project is reinstated, an equitable adjustment to the Consultant's
<br />compensation may be necessary.
<br />
<br />4.7.3 In the event of tennination or suspension pennitted by this
<br />Agreement, the Client shall compensate the Consultant for services
<br />perfonned prior to termination, suspension or abandonment and for
<br />services directly attributable to the tennination, suspension or
<br />abandonment itself, together with Reimbursable Expenses. If the Client
<br />properly terminates Consultant for cause, Client may withhold from
<br />Consultant's compensation those damages directly attributable to the
<br />cause of the termination.
<br />
<br />4.8 Dispute Resolution
<br />
<br />4.8.1 In an effort to resolve any conflicts that arise out of the
<br />services under this Agreement, all,disputes between the Client and the
<br />Consultant arising out of or relating to this Agreement shall be
<br />submitted to nonbinding mediation prior to commencing arbitration or
<br />litigation. The Mediator's fee shall be shared equally and mediation
<br />shall proceed only at a place where arbitration or litigation is proper.
<br />
<br />Public Sector - no design or construction
<br />
<br />Mediation shall not be a condition precedent to arbitration or litigation if
<br />a party refuses to make reasonable arrangements for a mediation
<br />within 20 days of demand by the other party. If a dispute relates to or is
<br />the subject of a lien arising out of the Consultant's services, the
<br />Consultant may proceed in accordance with applicable law to comply
<br />with the lien notice or filing deadlines prior to resolution of the matter
<br />by mediation or arbitration.
<br />
<br />4.8.2 Unless the Client and the Consultant mutually agree
<br />otherwise, all claims, disputes, and other matters in question arising
<br />out of or relating to this Agreement which are not resolved by
<br />mediation and where the amount in controversy is less than
<br />$1,000,000, shall be decided by binding arbitration in accordance with
<br />the then-most current Construction Industry Rules of the American
<br />Arbitration Association. The arbitrators will not have jurisdiction, power
<br />or authority to consider any claim or dispute: (a) where the amount in
<br />controversy is more than $1,000,000 (exclusive of interest and costs);
<br />(b) when the demand for arbitration is made after the date when a
<br />court action would be barred by any applicable statute or period of
<br />repose or limitations; or (c) when the claim or dispute is a claim for
<br />contribution or indemnity arising out of a claim by a third party who
<br />does not consent to joinder in arbitration.
<br />
<br />4.8.3 In the event of litigation or arbitration arising from or related
<br />to the services provided under this Agreement, the prevailing party is
<br />entitled to recovery of all reasonable costs incurred. including staff
<br />time, court costs, attorney's fees and other related expenses.
<br />
<br />4.8.4 If the Consultant or the Client intends to assert a claim
<br />against the other as a result of a dispute with a third party, the claiming
<br />party shall notify the other party as soon as possible, and in any event
<br />prior to resolving the dispute with the third party.
<br />
<br />4.8.5 So that any claims of the Client may be intelligently
<br />addressed by the Consultant, the Client agrees to make no claim for
<br />professional negligence against the Consultant unless the Client has
<br />first provided the Consultant a written certification signed by an
<br />independent professional licensed in the state in which the Project is
<br />located and currently practicing in the same discipline. The certification
<br />shall specify every act or omission of the Consultant that is a violation
<br />of the applicable standard of care and the basis for the certifier's
<br />opinion(s). This certificate shall be provided no fewer than 30 days
<br />prior to instituting arbitration or suit.
<br />
<br />4.8.6 Causes of action between the Consultant and the Client
<br />relating to acts or failures to act shall be deemed to have accrued and
<br />the applicable statute of limitations shall commence to run not later
<br />than the date of substantial completion of a Project.
<br />
<br />4.9 Hazardous Substances
<br />
<br />The Consultant's scope of selVices does not include any services
<br />related to hazardous or toxic materials, including asbestos and PCBs.
<br />If it becomes known that such materials may be present at or near a
<br />Project that may affect the Consultant's services, the Consultant may
<br />suspend perfonnance of its services, without liability, and will assist the
<br />Client to retain appropriate consultants to adequately identify and
<br />abate such materials so that Consultant's services may resume.
<br />Nothing in this Agreement shall be construed to require the Consultant
<br />to: (a) assume the status of a generator, storer, transporter. treater, or
<br />disposal facility as those terms appear within the Resource
<br />Conservation and Recovery Act, 42 USC 6901 et seq, as amended, or
<br />within any state statute governing the generation, treatment, storage
<br />and disposal of waste; or (b) arrange for the transportation, treatment,
<br />or disposal of hazardous substances, as described in the
<br />Comprehensive Environmental Response, Compensation and Liability
<br />Act, 42 USC 9601, et. seq, as amended. The Client agrees to defend,
<br />indemnify and hold harmless the Consultant, its employees,
<br />subcontractors and agents from all claims, losses, damages liability
<br />and costs, including attorney's fees. relating to or arising out of
<br />hazardous or toxic materials at or near a Project.
<br />
<br />4.10 Governina Law
<br />
<br />This Agreement shall be governed by the laws of the state in which the
<br />Project is located.
<br />
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