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KLEINFELDER,INC.GENERAL CONDN'IONS(PROFESSIONAL SERVICES)
<br /> 1. Services. This Agreement is entered into between Client and Kleinfelder, Inc.('Consultant)wherein Client engages Consultant to provide professional services('Services")in
<br /> connection with the project described in the proposal('Projee)to which these General Conditions are attached. Client agrees that services not specifically described in the Scope of
<br /> Services identified in Consultant's proposal are not included in the Scope of Services described by Consultant This Agreement including the proposal,these General Conditions,
<br /> Consultants Addenda and Fee Schedule, represents the entire Agreement between the parties and supercedes any and all agreements between the parties,either oral or in writing,
<br /> including any purchase or work order issued by Client.
<br /> 2. Payment. Client shall pay invoices upon receipt. Invoices not paid within thirty(30)days of the invoice date shall be subject to a late payment fee of 1%:%per month from the date
<br /> of invoice. Additionally,Consultant may,upon five(5)calendar days'notice to Client,suspend all Services unfit paid in full and may terminate the Agreement.
<br /> 3. Prevailing Wanes. It is Clients legal responsibility to determine whether the Project is covered under prevailing wage regulations. Unless Client specifically informs Consultant in
<br /> writing that the Project is a prevailing wage project and is identified as such in Consultant's Scope of Services,Client agrees to reimburse Consultant and to defend,indemnify and hold
<br /> harmless Consultant from and against any liability, including casts,fines and attorneys'fees resulting from a subsequent determination that the Project was covered under prevailing
<br /> wage regulations.
<br /> .. 4. Work Product Services provided under this Agreement,including all reports,information,recommendations,or opinions('Reports')prepared or issued by Consultant,are for the
<br /> exclusive use and benefit of Client or its agents in connection with the Project,are not intended to inform,guide or otherwise influence any other entitles or persons with respect to any
<br /> particular business transactions,and should not be relied upon by any entities or persons other than Client or its agents for any purpose other than the Project. Client will not distribute or
<br /> convey such Reports to any other persons or entities without Consultants prior written consent which shall include a release of Consultant from liability and indemnification by the third
<br /> party. Consultants Reports, boring logs, maps, field data.drawings, test results and other work products are part of Consultant's professional services, do not constitute goods or
<br /> products and are copyrighted works of Consultant However,such copyright is not intended to limit the Clients use of its work product in connection with the Project
<br /> 5. Standard of Care. Consultant will strive to perform the Services in a manner consistent with that level of pre and skill ordinarily exercised by members of the Consultant's
<br /> profession practicing in the same locality under similar circumstances at the time the services are performed. This Agreement creates no other representation,warranty or guarantee,
<br /> ` express or implied.
<br /> 6. LimRatlon of Liability. Consultants potential liability to Client and others is grossly disproportionate to Consutants fee due to the size,scope,and value of the Project. Therefore,
<br /> unless Client and Consultant otherwise agree in writing in consideration for an increase in Consultants fee, Client, including its directors, officers, partners, employees, agents,
<br /> contractors and their respective assigns, agree to limit Consultants liability (whether arising from contract statutory violation or tort to the greater of$25,000 or the amount of
<br /> Consultant's fee. This limitation of liability shall apply to all phases of Services performed in connection with this Project, whether subsequent to or prior to the execution of this
<br /> Agreement. In no event shall Consultant be liable for consequential,incidental or special damages.
<br /> 7. Construction Observation. If included in the Services,Consultants services during construction,shall be limited to observation and testing of construction opembons.Consultant
<br /> shall not be responsible for constant or exhaustive inspection of the work,the means and methods of construction or the safety procedures employed by Clients contractor. Performance
<br /> of construction observation services does not constitute a warranty or guarantee of any type,since even with diligent observation,some construction defects,deficiencies or omissions in
<br /> `" the Contractors work may occur. Client shall hold its contractor solely responsible for the quality and completion of the Project,including construction in accordance with the construction
<br /> documents. Any duty hereunder is for the sole benefit of the Client and not for any third party,including the contractor or any subcontractor. Client,or its designees,shall hotly
<br /> Consultant at least twenty-four(24)hours in advance of any field tests and observations required by the construction documents.
<br /> 6. Certifications. Consultant shall sign certifications only if(a)Consultant approves the form of such certfication prior to the commencement of Services,(b)such certification is
<br /> . included in Consultant's Services, (c) the certOcaton is limited to a statement of professional opinion and does not constitute a warranty or guarantee, express or implied. Any
<br /> certification shall not relieve any entity of its obligations.
<br /> 9. Samples. All samples shall remain the property of the Client. Client shall promptly, at its cost remove and lawfully dispose of samples,cuttings and hazardous materials, If
<br /> appropnate,Consultant shall preserve samples obtained no longer than sixty(60)days after the issuance of any document that includes the data obtained from those samples. After that
<br /> . date,Consultant may dispose of the samples or return them to Cliental Clients cost.
<br /> 10. Client Responsibilities. Client shall bear sole responsibility for(a)jobsile safety;(b)notifying third parties including any governmental agency or prospective purchaser,of the
<br /> existence of any hazardous or dangerous materials located in or around the Project site; and (e) providing and updating Consultant with accurate information regarding existing
<br /> conditions,including the existence of hazardous or dangerous materials,proposed Project site uses,the correct location of Project property boundaries,any change in Project plans,and
<br /> . all subsurface installations,such as pipes,tanks,cables and utilities within the Project site. Client shall cooperate with all requests by Consultant including obtaining permission for
<br /> access to the Project site. Client releases Consultant from liability for any incorrect advice,judgment or decision based on inaccurate information fumished by Client or others. If
<br /> reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance,including hazardous materials,encountered on
<br /> the site,Consultant shall immediately stop work in the affected area and report the condition to Client.
<br /> 11. Electronic Media. Because data stored on electronic media an deteriorate undetected or be modified without Consultants knowledge,the Client accepts responsibility for the
<br /> completeness or readability of the electronic media after an acceptance period of 30 days from delivery of the electronic files.
<br /> 12. Indemnification. To the fullest extent permitted by law,ClienL including its directors,officers, partners,employees,agents,contractors and their respective assigns,agrees to
<br /> indemnity,defend,and hold harmless Consultant,its directors,officers,employees and subcontractors from and against all claims,liability,damages,or expenses('Claims')arising out
<br /> of,in connection with or relating to any alleged act.failure to act or other conduct of Consultant including but not limited to,Claims alleging the negligence or other fault of Consultant,
<br /> ` but specifically excepting Claims arising out of Consultants sole negligence or willful misconduct Client shall indemnify Consultant even if Client is partally or wholly without fault for
<br /> such Claims.
<br /> 13, Dispute Resolution. The parties shall attempt resolution of any dispute arising under of related to this Agreement by mediation. Notwithstanding the foregoing,in the event of
<br /> Client ran-payment,Consultant may,at 4s sole option,waive mediation. Either party may demand mediation by serving a written notice on the other party slating the essential nature of
<br /> the dispute.The mediation shall be conducted in accordance with the AAA Construction Industry Mediation Rules then in effect within forty-foe(45)days from the service of notice.The
<br /> parties shall share the fees equally, If mediation fails,either parry may institute litigation in the state or federal mud of the county in which Consultants office issuing the proposal is
<br /> located. The prevailing party shall be entitled to attorneys'fees,cost,including costs incurred in the mediation and costs of enforcement of any judgment. The parties expressly waive
<br /> any statute of limitations for a longer period of time and agree that any action shall be brought within one year from the date of Consultant's final invoke.The parties expressly waive any
<br /> and all rights to a tial by jury in any action,proceeding of counterclaim brought by either of the parties against the other with respect to any matter relabrg to,arising out of or in any way
<br /> connected with this Agreement
<br /> 14. Chanced Conditions. If dung the course of performance of this Agreement conditions or circumstances are discovered which were not contemplated by Consultant at the
<br /> commencement of this Agreement.Consultant shall notify Client 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 Consultant
<br /> shall be paid for its services through the date of termination.
<br /> 15. Governing Law. The laws of the State where the Agreement was entered into shall govern interpretation of this Agreement If any term is deemed unenforceable.the remainder of
<br /> the Agreement shall stay in full force and effect
<br /> 16. Additional Provisions. Neither party may assign its interest in this Agreement without the prior written consent of the other. Any modification to this Agreement will be effective
<br /> only if it is in writing signed by the party to be bound,except that lt Consultant has performed services in reliance on Clients verbal approval to proceed,Client shall be bound by such
<br /> verbal approval. One or more waivers of any tern,condition or covenant by either party shall not be construed as a waiver of any other term,condition or covenant- This Agreement may
<br /> be signed in counterpart
<br /> Copyright 2004 Kleinfelder, Inc.
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