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Coffman _______________ Client Initials _______________
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<br />Certificates of insurance reflecting such coverage may be produced by
<br />Coffman upon request. Notwithstanding any other provision contained
<br />within this Agreement, nothing shall be construed so as to void, vitiate,
<br />or adversely affect any insurance coverages held by either party to this
<br />Agreement.
<br />10. Limitation of Liability: To the fullest extent permitted by law,
<br />Coffman and Client agree to limit the liability of Coffman and its
<br />subconsultants to Client for any and all causes of action, claims
<br />(including but not limited to claims for negligence, professional errors
<br />or omissions, strict liability, and breach of contract or warranty), losses,
<br />costs, damages of any nature whatsoever or claims expenses from any
<br />cause or causes related to Coffman’s Services, so that the total
<br />aggregate liability of Coffman and its subconsultants to all those named
<br />shall not exceed $50,000 or Coffman’s total fee for Services, whichever
<br />is greater, in any event.
<br />11. Indemnity: Subject to the limitation of liability mutually
<br />negotiated in this Agreement, Coffman shall indemnify Client from
<br />damages resulting from third party claims solely to the proportionate
<br />extent they are proximately caused by Coffman’s negligent
<br />performance of Services pursuant to this Agreement. Coffman’s
<br />indemnity obligations shall not require it to indemnify Client for Client’s
<br />sole negligence or reckless or willful misconduct. If damages are
<br />caused by, result from, or relate to the concurrent negligence of Client
<br />or a third party not directly controlled by Coffman, Coffman’s indemnity
<br />obligations shall be strictly limited to the extent of its proportionate
<br />negligence as established by a court of competent jurisdiction or
<br />arbitrator.
<br />12. Ownership of Documents: All reports, field data, field notes,
<br />test data, calculations, drawings and specifications, estimates, CAD
<br />drawing files, and other documents prepared by Coffman, its officers,
<br />employees, agents, and subcontractors in the course of implementing
<br />this Agreement (collectively “Instruments of Service”) shall remain
<br />Coffman’s property. Coffman grants Client a nonexclusive license to
<br />use the Instruments of Service solely and exclusively in connection
<br />with Client’s use on the Project, provided that Client substantially
<br />performs its obligations pursuant to this Agreement, including prompt
<br />payment of all sums when due to Coffman. Client agrees to indemnify
<br />and hold Coffman harmless from and against any and all claims,
<br />liabilities, suits, demands, losses, damages, costs, and expenses
<br />(including but not limited to reasonable legal fees, costs of defense,
<br />and in-house counsel expenses), accruing or resulting to any persons,
<br />firms, or other legal entities on account of any damages or losses to
<br />property or persons including death and/or economic loss, arising out
<br />of the unlicensed or unauthorized use, transfer, or modification of the
<br />Instruments of Service.
<br />13. Jobsite Safety: Coffman will not supervise, direct, control, or
<br />have authority over or be responsible for construction means,
<br />methods, techniques, sequences, or procedures of construction, or the
<br />safety precautions and programs incident thereto on the Project or for
<br />any failure of Client to comply with applicable laws and regulations.
<br />14. Hazardous Materials: Client acknowledges that Coffman has
<br />no expertise in and is not being retained for the purposes of
<br />investigating, detecting, abating, replacing, remediating, or removing
<br />any items, products, or materials containing hazardous substances.
<br />Client agrees to indemnify and hold harmless Coffman from and
<br />against any and all claims, losses, damages, liability, and costs,
<br />(including but not limited to reasonable legal fees, costs of defense,
<br />and in-house counsel expenses) arising out of or in any way connected
<br />with the presence, discharge, release, or escape of contaminants of
<br />any kind, excepting only such liabilities as may arise out of the sole
<br />negligence of Coffman in the performance of services pursuant to this
<br />Agreement.
<br />15. Mutual Consequential and Punitive Damages Waiver:
<br />Neither Coffman nor Client shall be liable under any circumstances for
<br />loss of profits, loss of product, consequential damages of any kind,
<br />indirect damages of any kind or special damages of any kind to the
<br />other party or to any third party. No punitive or exemplary damages of
<br />any kind shall be recoverable against either party under any
<br />circumstances.
<br />16. Assignment: Except as expressly provided for herein, neither
<br />Party will assign this Agreement, any right arising out of it, or the
<br />performance of obligations hereunder, without the written consent of
<br />the other. Nothing contained in this Agreement will create a contractual
<br />relationship with, or cause of action in favor of, any third party.
<br />17. Severability: If any provision or provisions of this Agreement
<br />shall be held to be invalid, illegal, unenforceable, or in conflict with the
<br />laws of any jurisdiction, the validity, legality, and enforceability of the
<br />remaining provisions shall not in any way be affected and shall remain
<br />in full force and effect.
<br />18. Governing Law: This Agreement shall be governed by the law
<br />of the location of Coffman’s office identified in the attached Proposal,
<br />without regard to conflict of law principles.
<br />19. Headings: The headings in this Agreement are for convenience
<br />of reference only and shall not be deemed to be a part of this
<br />Agreement or limit or otherwise affect the construction, interpretation,
<br />or meaning thereof.
<br />20. Dispute Resolution: All claims, disputes, controversies, or
<br />matters in question arising out of or relating to this Agreement or any
<br />breach thereof, including but not limited to disputes arising out of
<br />alleged design defects, breaches of contract, errors, omissions, or acts
<br />of professional negligence, with the exception of those disputes that
<br />arise out of or are related to collection matters or fees alone pursuant
<br />to this Agreement (collectively “Disputes”), shall be submitted to
<br />mediation before and as a condition precedent to pursuing any other
<br />remedy. Upon written request by either party to this Agreement for
<br />mediation of any Disputes, Coffman and Client shall select a neutral
<br />mediator by mutual agreement. Such selection shall be made within
<br />ten (10) calendar days of the date of receipt by the other party of the
<br />written request for mediation. The mediator shall be located in the
<br />same county as Coffman’s office listed in this Agreement, unless the
<br />Parties otherwise agree. In the event the Parties fail to mutually agree
<br />on a mediator, within ten (10) calendar days of a mediation request, a
<br />mediator shall be chosen as specified in the Mediation Rules of the
<br />American Arbitration Association then in effect, or any other
<br />appropriate rules upon which the parties may agree.
<br />Should either Party to this Agreement commence any legal action
<br />against the other party arising out of this Agreement, the prevailing
<br />party as determined by an arbitrator or court of competent jurisdiction
<br />shall be entitled to recover its reasonable litigation expenses, including
<br />but not limited to court costs, expert witness fees, discovery expenses,
<br />and attorneys’ fees.
<br />21. Amendments: This Agreement may be modified or amended
<br />only by a written document executed by both Coffman and Client.
<br />22. Interpretation of Agreement: This Agreement shall be
<br />interpreted as though prepared by all Parties thereto and shall not be
<br />construed unfavorably against either Party.
<br />23. No Third-Party Beneficiary: This Agreement is for the
<br />exclusive benefit and convenience of the parties hereto. Nothing
<br />contained herein shall be construed as granting, vesting, creating or
<br />conferring any right of action or any other right or benefit upon any third
<br />party not a party to this Agreement.
<br />24. Entire Agreement: This Agreement constitutes the complete
<br />and exclusive statement of Agreement between Client and Coffman.
<br />All prior written and oral communications, including correspondence,
<br />drafts, memoranda, and representations, are superseded in total by
<br />this Agreement.
<br />25. Waiver: No failure on the part of either Party to exercise any
<br />right or remedy hereunder shall operate as a waiver of any other right
<br />or remedy that Party may have hereunder.
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<br />Design-Build Contract for Everett Outdoor Events Center
<br />Exhibit C - Phase 1A Work and Fee Proposal
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