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� .- v <. < � � � • � : yr rerun rrer avn000 nma1LCY -tiUitiV l¢J 012 / 013 <br /> expenses, including but not limited to attorneys' fees, resulting therefrom Any authorization or adaptation will entitle the <br /> Consultant to further compensation at rates to be agreed upon by the Client and the Consultant Any electronic files not <br /> containing an electronic seal are provided only for the convenience of the Client, and use of them is at the Client's sole risk <br /> In the case of any defects in the electronic files or any discrepancies between them and the hardcopy of the documents <br /> prepared by the Consultant, the hardcopy shall govern. Only printed copies of documents conveyed by the Consultant may <br /> be relied upon. Because data stored in electronic media format can deteriorate or be modified without the Consultant's <br /> authorization, the Client has 60 days to perform acceptance tests, after which it shall be deemed to have accepted the data. <br /> (6) Opinions of CosL Because the Consultant does not control the cost of labor, materials, equipment or services <br /> famished by others, methods of determining prices or competitive bidding or market conditions, airy opinions rendered as <br /> to costs, including but not limited to opinions as to the costs of construction and materials, shall be made on the basis of its <br /> experience and represent its judgment as an experienced and qualified professional, familiar with the industry. The <br /> Consultant cannot and does not guarantee that proposals, bids or actual costs will not vary from its opinionscoIf <br /> f st. the <br /> Client wishes greater assurance as to the amount of any cost, it shall employ an independent cost estimator.oConsuilta he <br /> services required to bring costs within any limitation established by the Client will be paid for as Additional Services. <br /> (7) Termination. The obligation to provide further services under this Agreement may be terminated by either party upon <br /> seven days' written notice in the event of substantial failure by the other party to perform in accordance with the terms <br /> hereof through no fault of the terminating ply, or upon thirty days' written notice for the convenience of the terminating <br /> party. If any material change occurs in the ownership of the Client, the Consultant shall have the right to immediately <br /> terminate this Agreement. In the event of any termination, the Consultant shall be paid for all services rendered and <br /> expenses incurred to the effective date of termination, and other reasonable expenses incurred by the Consultant as a result <br /> of such termination. If the Consultant's compensation is a fixed fee, the amount payable for services will be a proportional <br /> amount of the total fee based on the ratio of the amount of the services performed, as reasonably determined by the <br /> Consultant, to the total amount of services which were to have been performed. <br /> (8) Insurance. The Consultant carries Workers' Compensation insurance, professional liability insurance, and general <br /> liability insurance. If the Client directs the Consultant to obtain increased insurance coverage, the Consultant will take out <br /> such additional insurance, if obtainable, at the Client's expense. <br /> (9) Standard of Care. In performing its professional services, the Consultant will use that degree of care and skill <br /> ordinarily exercised, under similar circumstances, by reputable members of its profession in the same locality at the time the <br /> services are provided. No warranty, express or implied, is made or intended by the Consultant's undertaking herein or its <br /> performance of services, and it is agreed that the Consultant is not a fiduciary with respect to the Client. <br /> ( 10) LIMITATION OF LL4J31UTY. In recognition of the relative risks and benefits of the Project to both the Client and <br /> the Consultant, the risks have been allocated such that the Client agrees, to the fullest extent of the law, and notwithstanding <br /> any other provisions of this Agreement or the existence of applicable insurance coverage, that the total liability, in the <br /> aggregate, of the Consultant and the Consultant's officers, directors, employees, agents, and subconsultants to the Client or <br /> to anyone claiming by, through or under the Client, for any and all claims, losses, costs or damages whatsoever arising out <br /> of; resulting from or in any way related to the services under this Agreement from any cause or causes, including but not <br /> limited to, the negligence, professional errors or omissions, strict liability or breach of contract or any warranty, express or <br /> implied, of the Consultant or the Consultant's officers, directors, employees, agents, and subconsultants, shall not exceed <br /> twice the total compensation received by the Consultant under this Agreement or 350,000, whichever is greater. IIigher <br /> limits of liability may be negotiated for additional fee. Under no circumstances shall the Consultant be liable for lost profits <br /> or consequential damages, for extra costs or other consequences due to changed conditions, or for costs related to the future <br /> Of contractors to perform work in accordance with the plans and specifications. This Section 10 is intended solely to limit <br /> the remedies available to the Client, and nothing in this Section 10 shall require the Client to indemnify the Consultant <br /> (11) Certifications. The Consultant shall not be required to execute certifications or third-party reliance letters that are <br /> inaccurate, that relate to facts of which the Consultant does not have actual knowledge, or that would rause the Consultant <br /> to violate applicable rules of professional responsibility. <br /> (12) Dispute Resolution. All claims by the Client arising out of this Agreement or its breach shall be submitted first to <br /> mediation in accordance with the Construction Industry Mediation Rules of the American Arbitration Association as a <br /> condition precedent to litigation. Any mediation or civil action by Client must be commenced within one year of the accrual <br /> of the cause of action asserted but in no event later than allowed by applicable statutes. <br /> rev 08106 2 <br />