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General Conditions - 2
<br />(Rev. 07.14.16)
<br />
<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
<br />Agreement will be the care and skill ordinarily exercised by
<br />members of Consultant's profession practicing under similar
<br />circumstances at the same time and in the same locality.
<br />Consultant makes no warranties, express or implied, under this
<br />Agreement or otherwise, in connection with its services.
<br />2. Consultant neither guarantees the performance of any
<br />Contractor nor assumes responsibility for any Contractor's failure
<br />to furnish and perform the work in accordance with its
<br />construction contract or the construction documents prepared by
<br />Consultant. Client acknowledges Consultant will not direct,
<br />supervise or control the work of construction contractors or their
<br />subcontractors at the site or otherwise. Consultant shall have no
<br />authority over or responsibility for the contractor's acts or
<br />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
<br />the Contractor's work.
<br />3. If requested in the scope of a Supplemental Letter Agreement,
<br />then Consultant may provide an Opinion of Probable
<br />Construction Cost. Consultant's Opinions of Probable
<br />Construction Cost provided for herein are to be made on the
<br />basis of Consultant's experience and qualifications and
<br />represent Consultant's best judgment as a professional generally
<br />familiar with the industry. However, since Consultant has no
<br />control over the cost of labor, materials, equipment or service
<br />furnished by others, or over the Contractor's methods of
<br />determining prices, or over competitive bidding or market
<br />conditions, Consultant cannot and does not guarantee that
<br />proposals, bids or actual construction cost will not vary from
<br />Opinions of Construction Cost prepared by Consultant. If Client
<br />wishes greater assurance as to probable Construction Cost,
<br />Client shall employ an independent cost estimator or negotiate
<br />additional services and fees with Consultant.
<br />B. Indemnity for Environmental Issues
<br />1. Consultant 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
<br />defend Consultant and Consultant's officers, directors,
<br />subconsultant(s), employees and agents from and against any
<br />and all claims, losses, damages, liability and costs, including but
<br />not limited to costs of defense, arising out of or in any way
<br />connected with, the presence, discharge, release, or escape of
<br />hazardous or toxic substances, pollutants or contaminants of any
<br />kind at the site.
<br />C. Limitations on Consultant's Liability
<br />1. The Client hereby agrees that to the fullest extent permitted by
<br />law, Consultant's total liability to the Client for any and all
<br />injuries, claims, losses, expenses, or damages whatsoever
<br />arising out of or in any way related to the Project or this
<br />Agreement from any cause or causes including, but not limited
<br />to, Consultant's negligence, errors, omissions, strict liability,
<br />breach of contract or breach of warranty shall not exceed five
<br />hundred thousand dollars ($500,000). In the event Client desires
<br />limits of liability in excess of those provided in this paragraph,
<br />Client shall advise Consultant in writing and agree that
<br />Consultant's fee shall increase by 1°/o for each additional five
<br />hundred thousand dollars of liability limits, up to a maximum limit
<br />of liability of five million dollars ($5,000,000).
<br />2.1. Neither Party shall be liable to the other for consequential
<br />damages, including, without limitation, lost rentals, increased
<br />rental expenses, loss of use, loss of income, lost profit, financing,
<br />business and reputation and far loss of management or
<br />employee productivity, incurred by one another or their
<br />subsidiaries or successors, regardless of whether such damages
<br />are foreseeable and are caused by breach of contract, willful
<br />misconduct, negligent act or omission, or other wrongful act of
<br />either of them.
<br />3.2. It 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
<br />with this Agreement. The Client agrees that as the Client's sole
<br />and exclusive remedy, any claim, demand or suit shall be
<br />directed and/or asserted only against Consultant, and not
<br />against any of Consultant's individual employees, officers or
<br />directors, and Client knowingly waives all such claims against
<br />Consultant individual employees, officers or directors.
<br />D. Assignment
<br />1. Neither party to this Agreement shall transfer, sublet or assign
<br />any rights under, or interests in, this Agreement or claims based
<br />on this Agreement without the prior written consent of the other
<br />party. Any assignment in violation of this subsection shall be null
<br />and void.
<br />
<br />SECTION V - DISPUTE RESOLUTION
<br />A. Mediation
<br />1. Any dispute between Client and Consultant arising out of or
<br />relating to this Agreement or services provided under this
<br />Agreement, (except for unpaid invoices which are governed by
<br />Section Ill), shall be submitted to nonbinding mediation as a
<br />precondition to litigation unless the parties mutually agree
<br />otherwise. Mediation shall occur within 60 days of a written
<br />demand for mediation unless Consultant and Client mutually
<br />agree otherwise.
<br />B. Litigation - Choice of Venue and Jurisdiction
<br />1. Any dispute not settled through between the parties
<br />may mediation shall be settled through litigation in the
<br />state where the Project at issue is located.
<br />
<br />SECTION VI - INTELLECTUAL PROPERTY
<br />A. Proprietary Information
<br />1. All documents, including reports, drawings, calculations,
<br />specifications, CADD materials, computers software or hardware
<br />or other work product prepared by Consultant pursuant to this
<br />Agreement are Consultant's Instruments of Service ("Instruments
<br />of Service") and Consultant retains all ownership interests in
<br />Instruments of Service, including all available copyrights.
<br />2. Consultant shall retain all of its rights in its proprietary
<br />information including, without limitation, its methodologies and
<br />methods of analysis, ideas, concepts, expressions, inventions,
<br />know how, methods, techniques, skills, knowledge and
<br />experience possessed by Consultant prior to, or acquired by
<br />Consultant during, the performance of this Agreement and the
<br />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
<br />thereto.
<br />
<br />B. A. Client Use of Instruments of Service
<br />1. Provided that Consultant has been paid in full for its services,
<br />Client shall have the right in the form of a license to use
<br />Instruments of Service resulting from Consultant's efforts on the
<br />Project. Consultant shall retain full rights to electronic data and
<br />the drawings, specifications, including those in electronic form,
<br />prepared by Consultant and its subconsultants and the right to
<br />reuse component information contained in them in the normal
<br />course of Consultant's professional activities. Consultant shall be
<br />deemed to be the author of such Instruments of Service,
<br />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
<br />Instruments of Services outside of the scope of services are
<br />available to Client subject to Consultant's current rate schedule.
<br />C. Reuse of Documents
<br />1. All Instruments of Service prepared by Consultant pursuant to
<br />this Agreement are not intended or represented to be suitable for
<br />reuse by the Client or others on extensions of the Project or on
<br />any other Project. Any reuse of the Instruments of Service
<br />without written consent or adaptation by Consultant for the
<br />specific purpose intended will be at the Client's sole risk and
<br />without liability or legal exposure to Consultant; and the Client
<br />shall release Consultant from all claims arising from such use.
<br />Client shall also defend, indemnify and hold harmless Consultant
<br />from all claims, damages, losses and expenses including
<br />attorneys' fees arising out of or resulting from reuse of
<br />Consultant documents without written consent.
<br />Formatted: Character scale: 100%
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