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KLEINFELDER
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<br /> GENERAL CONDITIONS(PROFESSIONAL SERVICES)
<br /> 1. Client shall pay invoices upon receipt. Invoices not paid within thirty(30)days of the invoice date shall be subject to a late payment charge of 1-112 percent per month(or the
<br /> maximum rate allowable by law,whichever is less). Invoice amounts shall be presumed to be correct unless Client notifies Consultant in writing within fourteen(14)days of
<br /> r receipt. Client agrees to pay all costs incurred with collection of past due accounts,including attorneys'fees. If Client fails to pay an invoice when due,Consultant may,upon
<br /> five(5)calendar days notice to client,suspend all Services until paid in full,and may terminate the Agreement.
<br /> 2. The Client agrees that any and all limitations of the Consultant's liability and indemnifications by the Client to the Consultant shall include and extend to those individuals and
<br /> entities the Consultant retains for performance of the services under this Agreement,including but not limited to the Consultant's officers, partners and employees and their
<br /> v heirs and assigns,as well as the Consultant's subconsultants and their officers,employees,heirs and assigns.
<br /> 3. Consultant shall perform the services in a manner consistent with the standard of care and skill ordinarily exercised by members of the profession practicing in the same or
<br /> similar locality under similar circumstances at the time the services are performed. This Agreement creates no warranty or guarantee,express or implied,nor does it create a
<br /> fiduciary responsibility to Client by Consultant.
<br /> 4. Consultant's construction observation Services,if any,shall be limited to observation of construction operations to provide Client with an understanding of the general nature,
<br /> progress and quality of the work. Unless otherwise agreed in writing,Consultant shall not be responsible for continuous or exhaustive inspection of the work. In no event shall
<br /> Consultant be responsible for the means and methods of construction or for the safety procedures employed by Client's contractor. Client shall hold its contractor solely
<br /> responsible for the quality and completion of the Project,including but not limited to its construction in accordance with the construction documents.
<br /> r 5. Consultant shall sign certifications only if Consultant approves the form of such certification prior to the commencement of Services, such certification is included in
<br /> Consultant's scope of services, and provided such certification is limited to a statement of professional opinion and does not constitute a warranty or guarantee,express or
<br /> implied.
<br /> 6. Client shall notify Consultant at least twenty-four(24)hours in advance of any necessary tests and observations. If Client assigns this responsibility to a contractor,
<br /> subcontractor,or other third party,or if Client fails to provide the proper notice,Consultant shall not be responsible for any damages resulting from improper notice.
<br /> 7. All samples shall remain the property of the Client,and Client shall promptly at its cost remove and lawfully dispose of samples,cuttings and hazardous materials, unless
<br /> otherwise agreed in writing. If appropriate,Consultant shall preserve samples obtained for the Project for not longer than sixty(60)days after the issuance of any document that
<br /> includes the data obtained from those samples.
<br /> V 8. Client shall bear sole responsibility for notifying all prospective purchasers or other appropriate third parties including,but not limited to,all appropriate municipal,regional,
<br /> stele or federal agencies of the existence of any hazardous or dangerous materials located in or around the Project site.
<br /> 9. Client shall provide Consultant with all information regarding existing conditions, including the existence of hazardous or dangerous materials, and proposed uses of the
<br /> Project site and shall correctly designate the location of all property lines of the Project site and all subsurface installations, such as pipes, tanks, cables, electrical lines,
<br /> r, telephone lines and utilities within the Project site. Client shall immediately provide Consultant with any new information, including any change in plans. Client releases
<br /> Consultant from liability for any incorrect advice,judgment or decision based on any inaccurate information furnished by Client or others. If reasonable precautions will be
<br /> inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including hazardous materials, encountered on the site by
<br /> Ccnsuttant,Consultant shall,upon recognizing the condition,immediately stop work in the affected area and report the condition to Client.
<br /> 10 Consultant's reports,boring logs,maps,field data,drawings,test results and other work product are part of Consultant's professional services,and do not constitute goods
<br /> or products. Consultant reserves the right to copyright such work;however,such copyright is not intended to limit the Client's use of the Services pursuant to this Agreement in
<br /> connection with the Project.
<br /> 11. Because data stored on electronic media can deteriorate undetected or be modified without Consultant's knowledge,the Client agrees that it will accept responsibility for
<br /> r the completeness,correctness,or readability of the electronic media after an acceptance leaded of 30 days after delivery of the electronic files.
<br /> 12 Client shall cooperate with all reasonable requests by Consultant that are related to the performance of the Services, including but not limited to obtaining permission,at
<br /> Client's sole cost,to allow Consultant access to the Project site.
<br /> 13. Consultant's potential liability to Client and others is grossly disproportionate to Consultant's fee due to the size,scope,and value of the Project. Therefore,unless Client
<br /> r, and Consultant otherwise agree in writing in consideration for an increase in Consultant's fee,Client agrees to(1)limit Consultant's liability to the greater of$50,000.00 or the
<br /> amount of Consultant's fee, and (2) indemnify Consultant against all claims, liability, damages, or expenses (except for Consultant's sole negligence or willful misconduct)
<br /> arising out of or relating to all acts,failures to act,or other conduct of Consultant,including but not limited to,claims,liability,damages,or expenses arising out of or relating to
<br /> the active negligence or other fault of Consultant. Client shall indemnify Consultant even if Client is partially or wholly without fault for such claims, liability, damages, or
<br /> expenses even it liability is claimed to have arisen while Consultant was performing work outside the scope of services set forth on page 1.
<br /> 14. All disputes between Consultant and Client,with the exception of non-payment issues,shall first be subject to non-binding mediation. Either party may demand mediation
<br /> by serving a written notice staling the essential nature of the dispute and demanding that the mediation proceed within sixty(60)days of service of notice. The mediation shall
<br /> be administered by the American Arbitration Association or by such other person or organization as the parties may agree upon. No action or suit may be commenced unless
<br /> (1 the mediation does not occur within ninety(90)days after service of notice,(2)the mediation occurs within ninety(90)days after service of notice but does not resolve the
<br /> dispute,or(3)a statute of limitation would elapse if suit was not filed prior to ninety(90)days after service of notice.
<br /> 15. If Client insures property,real or personal,or both,at or adjacent to the Project by property insurance,whether during or after the completion of the construction of the
<br /> Project,Client agrees to waive all subrogation claims against Consultant for damages caused by fire or other causes of loss to the extent covered by such property insurance.
<br /> 16. Client waives all claims against Consultant for all claims,liabilities,losses,and expenses arising out of or relating to Client's failure to perform,in whole or in part,any of its
<br /> oLlgations under this Agreement and any subsequent agreements.
<br /> 17. Client shall be responsible for jobsite safety.
<br /> 1 E. If during the course of performance of this Agreement conditions or circumstances are discovered which were not contemplated by Consultant at the commencement of this
<br /> Agreement,Consultant shall nofify Client in writing of the newly discovered conditions or circumstances,and Client and Consultant shall renegotiate, in good faith,the terms
<br /> ` and conditions of this Agreement. If amended terms and conditions cannot be agreed upon within thirty(30)days after notice,Consultant may terminate this Agreement and
<br /> Consultant shall be paid for its services through the date of termination.
<br /> 19. Client shall furnish to Consultant within fifteen(15)days after receipt of a written request information necessary and relevant for the Consultant to evaluate,give notice of,or
<br /> enforce mechanic's lien rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located,the name of the Project
<br /> lender,and the Client and/or Owners interest therein.
<br /> 20. Except for actions such as for enforcement of mechanic's liens which are required by statute to be brought in a specific venue,in the event that litigation is instituted under
<br /> the terms of this Agreement,the same is to be brought and tried in the judicial jurisdiction of the court of the county in which this Agreement is made. Client waives the right to
<br /> have the suit brought,or tried in,or removed to,any other county or judicial jurisdiction.
<br /> 21. This Agreement,including Consultant's Addenda and Schedule of Fees,represents the entire Agreement and understanding between the parties,and supersedes any and
<br /> all agreements,either oral or in writing,including any purchase order,between the parties. Any modification to this Agreement will be effective only it it is in writing signed by
<br /> the party to be bound. One or more waivers of any term,condition or covenant by either party shall not be construed as a waiver of any other term,condition or covenant.
<br /> 22. The laws of the State where the contract was entered into shall govern interpretation of this Agreement. If any term of this Agreement is deemed unenforceable,the
<br /> remainder of the Agreement shall stay in full force and effect. If services of an attorney are required by any party to secure performance under this Agreement,the prevailing
<br /> party shall be entitled to reasonable attorney's fees and costs.
<br /> Copyright 2001,Kleinfelder,Inc.
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