Reso 2009-1463 - Laserfiche WebLink

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Consultant to further compensation at rates to be agreed upon by the Client and the Consultant. Any electronic files not containina an electronic seal are provided only for the conVenience of tile Client, and use of them is at the Client's sole risk. In the case of any defec:ta in the electronic tiles or any discrepancies between them and the hardcopy of the documenta prepared by the Consultant, the hardcopy shall govcm. Only printed copies of documents conveyed by the Consultant may be relied upon. Becauso data stored in electronic media format can deteriorate or be modified without the CODSUltant's authorization, the Client bas 60 days to perform acceptance testa, after which it shall be deemed to have accepted the data. (6) OpiDioDl of COlt. Because tho Conaultant does not control the cost of labor, materials, equipment or services furnished by others. mcthoda of determining prices, or competitive bidding or marbt conditiona, any opiniona rendered as to costa, including but not limited to opiniona IS to the costa of construction and materials, shall be made on the basis of ita experience and represedt ita judgment as an experienced and qualified professional, familiar with the industry. The Consultant cannot and dQcs not guarantee that propoaJs, bids or actual costa will not vary from ita opinions of cosl If the Client wishes greater assurance as to the amount of any cost, it shall employ an indepeudent cost estimator. Consultant's services required to bring costa within any limitation established by the Client will be paid for as Additional Services. (7) TermfDatioD. The obligation to provide further services under this Agreement may be terminAted by either party upon seven days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fimlt Qf the terminating party, or upon thirty days' written notice for the convenience of the terminllting party. If any change OCCUl'll in the ownership of the Client, the Consultant shall have the right to itnmMilltely terminate this Agreement In the event of any termination, the ConsaItant shall be paid for all services rendered and expenses incurred to the effective date of termination, and other reasonable expenses incurred by the Consultant as a result of such termination. If the Consultant's compensation is a fixed fee, the amount payable for services will be a proportional amount of the total fee based on the ratio of the amount of the services perfonned, as reasonably determined by the Consultant, to the total amount of services which were to have been perfonned. (8) IllIUI"ance. The COnsultant carries Workers' Compensation insurance, professional liability insurance, and general liability insurance. If the Client directs the Consultant to obtain increased insurance coverage, the Consultant will take out such additional insurancel if oblainable, at the Client's ctpeIISC. (9) Standard of Care. In peri"onning its professiOllll1 services, the Consultant will use that degree of care and skill ordinarily exercised, under similar ciR:umstaoces, by reputable members of ita profession in the same locality at the time the services are provided. No warranty, express or implied, is made or intended by the Consultant's undertaking herein or ita performance of services, and it is agreed that the Consultant is not. a fiduciary with respect to the Client. (10) LIMITATION OF LIABILITY. In recognition of the relative riab and benefita of the Project to both the Client and the Conaultant, the risks have been allocated such that die Client agrees, to the fullest extent of the law, and notwithstanding any other provisions of tbia Agreement or the existea:e of applicable insurance coverage, that the total liability, in the aggregate, of the Consultant and the Consultants officcn, directors, employees, agenta, and subconsultanta to the Client or to anyone claiming by, tbrouah or under the Client, for any and all claims, losses, costa or damages whatsoever ari.sin& out o( resulting from or in any way related to the services UDder this Agreement from any cause or causes, including but not limited to, the negligence, professional errors or omiuiooa, strict liability or breach of contract or any wammty, express or implied, of the Consultant or the Consultant's officers, directors, employees, agenm, and subc:onsu1tanta, sha1J not exceed twice the total compen.sation received by the Consultaat under this Agreement or $50,000, whichever is greater. Higher limita of liability may be negotiated for additional fee. Under no circumstances shall the Consultant be liable to the Client or those claiming by or through the Client for lost profits or cooaequentia1 damages, for extra costa or other consequences due to changed conditiona, or for costa related to the failure of contractors to perform work in accordance with the plans and specificationa. This Section 10 is inteDded solely to imit the remedies available to the Client or those cJaimin& by or through the Client, and nothing in this Section 10 shall require the Client to indl'nmify the Consultant. (11) Certific:atio.... The Consultant sbaIJ not be required to execute certifications or third-party reliance letters that are inaccurate, that relate to &eta of which the Consultant does not have actual Icnowled&e, or that would cause the CODSUltant to violate applicable.rules of professional responsibility. (12) DiJpute Resolutio.. All claims by the Client arim1g out oftbis Agrccmcnt or ita breach shall be submitted first to mediation in accordance with the Construction Industry Mediation Ru1cs of the American Arbitration Association as a condition precedent to litigation. Any mediation or civillCtion by Client muat be commenced within one year of the accrual of the cause of action asserted but in no event later than allowed by applicable statutes. (13) 1lazard0Ul SubltaJ(cellUld Conditio.... .~) ....... i '.., :) i -) rev 01109 2