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<br />JIIII'1- n Kimley-Horn
<br />~ _ U and Associates, Inc.
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<br />Consultant will be at the Client's sole risk and without liability to the Consultant, and the Client shall indemnify, defend and hold the
<br />Consultant harmless from all claims, damages, losses and expenses, including but not limited to attorneys' fees, resulting there from.
<br />The Consultant's electronic files and source code developed in the development of application code remain the property of the
<br />Consultant and shall be provided to the Client only if expressly provided for in this Agreement. Any electronic files not containing an
<br />electronic seal are provided only for the convenience of the Client, and use of them is at the Client's sole risk. In the case of any
<br />defects in the electronic files or any discrepancies between them and the hardcopy of the documents prepared by the Consultant, the
<br />hardcopy shall govern. 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,
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<br />(6) Opinions of Cost. Because the Consultant does not control the cost of labor, materials, equipment or services furnished by
<br />others, methods of determining prices, or competitive bidding or market conditions, any opinions rendered as to costs, including but
<br />not limited to opinions as to the costs of construction and materials, shall be made on the basis of its experience and represent its
<br />judgment as an experienced and qualified professional, familiar with the industry, The Consultant cannot and does not guarantee that
<br />proposals, bids or actual costs will not vary from its opinions of cost. If the Client wishes greater assurance as to the amount of any
<br />cost, it shall employ an independent cost estimator. Consultant's services required to bring costs within any limitation established by
<br />the Client will be paid for as Additional Services.
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<br />(7) Termination. The obligation to provide further services under this Agreement may be terminated by either party upon seven
<br />days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no
<br />fault ofthe terminating party, or upon thirty days' written notice for the convenience of the terminating party, Ifany change occurs in
<br />the ownership of the Client, the Consultant shall have the right to immediately terminate this Agreement. In the event of any
<br />termination, the Consultant shall be paid for all services rendered and expenses incurred to the effective date of termination, and other
<br />reasonable expenses incurred by the Consultant as a result of such termination. If the Consultant's compensation is a fixed fee, the
<br />amount payable for services will be a proportional amount of the total fee based on the ratio of the amount of the services performed,
<br />as reasonably determined by the Consultant, to the total amount of services which were to have been performed,
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<br />(8) Insurance. The Consultant carries Workers' Compensation insurance, professional liability insurance, and general liability
<br />insurance, If the Client directs the Consultant to obtain increased insurance coverage, the Consultant will take out such additional
<br />insurance, if obtainable, at the Client's expense,
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<br />(9) Standard of Care. In performing its professional services, the Consultant will use that degree of care and skill ordinarily
<br />exercised, under similar circumstances, by reputable members of its profession in the same locality at the time the services are
<br />provided, No warranty, express or implied, is made or intended by the Consultant's undertaking herein or its performance of services,
<br />and it is agreed that the Consultant is not a fiduciary with respect to the Client.
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<br />(10) LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Project to the Client and the Consultant,
<br />the risks have been allocated such that the Client agrees, to the fullest extent of the law, and notwithstanding any other provisions of
<br />this Agreement or the existence of applicable insurance coverage, that the total liability, in the aggregate, of the Consultant and the
<br />Consultant's officers, directors, employees, agents, and subconsultants to the Client or to anyone claiming by, through or under the
<br />Client, for any and all claims, losses, costs or damages whatsoever arising out of, resulting from or in any way related to the services
<br />under this Agreement from any cause or causes, including but not limited to, the negligence, professional errors or omissions, strict
<br />liability or breach of contract or any warranty, express or implied, of the Consultant or the Consultant's officers, directors, employees,
<br />agents, and subconsultants, shall not exceed twice the total compensation received by the Consultant under this Agreement or $50,000,
<br />whichever is greater, Higher limits ofliability may be negotiated for additional fee, Under no circumstances shall the Consultant be
<br />liable for extra costs or other consequences due to changed conditions, or for costs related to the failure of contractors to perform work
<br />in accordance with the plans and specifications, This Section 10 is intended solely to limit the remedies available to the Client or
<br />those claiming by or through the Client, and nothing in this Section 10 shall require the Client to indemnify the Consultant.
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<br />(11) Mutual Waiver of Consequential Damages. In no event shall either party be liable to the other for any consequential,
<br />incidental, punitive, or indirect damages including but not limited to loss of income or loss of profits,
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<br />(12) Certifications. The Consultant shall not be required to execute certifications or third-party reliance letters that are inaccurate,
<br />that relate to facts of which the Consultant does not have actual knowledge, or that would cause the Consultant to violate applicable
<br />rules of professional responsibility,
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<br />(13) Dispute Resolution. All claims by the Client arising out ofthis Agreement or its breach shall be submitted first to mediation in
<br />accordance with the Construction Industry Mediation Procedures of the American Arbitration Association as a condition precedent to
<br />litigation. Any mediation or civil action by Client must be commenced within one year of the accrual of the cause of action asserted
<br />but in no event later than allowed by applicable statutes. ,~: ~; ;:)
<br />t.;.:;J
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<br />rev 08/1 0
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