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GENERAL TERMS AND CONDITIONS
<br />These General Terms and Conditions,together with the professional services
<br />agreement,constitute the ‘Agreement”between DCI and Client for DCI’S services on
<br />the project at issue in the Agreement (the “Project”).This Agreement shall become
<br />effective immediately upon execution by Client or upon Client’s written direction
<br />(including by email)to proceed with the services and shall remain in effect unless and
<br />until amended or superseded by a written agreement executed by both parties.
<br />STANDARD OF CARE:DCI shall perform its services consistent with the degree of
<br />skill and care ordinarily exercised by members of the same profession currently
<br />practicing in the same or similar locality under the same or similar circumstances.DCI
<br />makes no warranty with respect to its services,express or implied.
<br />CLIENT FURNISHED INFORMATION:Client shall provide DCI with a survey
<br />describing the physical characteristics,legal limitations,utility locations,a legal
<br />description,and geotechnical reports for the Project site.DCI shall be entitled to rely
<br />on,and shall not be responsible for the accuracy,completeness,or timeliness of
<br />services and information furnished by Client,its consultants,contractors and agents.
<br />PAYMENTS/ADDITIONAL SERVICES:Client’s failure to pay any invoice within 30
<br />days of the invoice date shall constitute a material breach of this Agreement and DCI
<br />shall have the right to suspend its services,including the withholding of deliverables,
<br />without liability for any costs or damages resulting from such suspension.Client
<br />agrees to pay a monthly finance charge equal to the lesser of 1.5%on the unpaid
<br />balance or the maximum rate allowed by law on any amounts unpaid 30 days after
<br />the invoice date,and DCI’s attorney’s fees and costs of collection incurred in pursuit
<br />of payment of sums owing to DCI,whether or not suit is filed.Client shall have no
<br />right of setoff against any billings of DCI for disputed services or claims.Additional
<br />Services may be provided after execution of this Agreement without invalidating the
<br />Agreement.DCI will notify Client of the need to perform Additional Services which
<br />shall entitle DCI to compensation as agreed upon by the parties.
<br />DELAY:DCI shall not be liable for costs or delays resulting from causes beyond the
<br />control and without the fault of DCI or its subconsultants,including stoppages and
<br />strikes,acts of God and natural disaster,failure of a public agency to act in a timely
<br />manner,and/or acts of Client and its consultants,contractors and agents,including
<br />regarding their failure to furnish information in a timely fashion and/or their faulty or
<br />untimely performance.
<br />CONTINGENCY RESERVE:Client and DCI acknowledge that changes may be
<br />required because of possible omissions,ambiguities or inconsistencies in the Project
<br />plans and specifications and that the costs of the Project as a result may exceed the
<br />construction contract sum.Client agrees to establish a reasonable design contingency
<br />reserve (no less than lO%of anticipated construction costs)to pay for any such costs.
<br />Client further agrees not to make any claim against DCI with respect to any payments
<br />made to any construction contractors within the limit of the design contingency reserve.
<br />INDEMNIFICATION:Client shall indemnify and hold harmless (but not defend)DCI,
<br />its officers and employees,from and against any and all damages,losses and
<br />expenses (including reasonable attorney’s fees)arising from claims by third parties
<br />to the extent caused by the negligence or willful misconduct of Client,its employees,
<br />or anyone for whom Client may be legally responsible.For purposes of the foregoing
<br />indemnification provision only,Client waives any immunity it may have under any
<br />applicable workers compensation laws.
<br />LIMITATION OF LIABILITY:In recognition of the relative risks,rewards and benefits
<br />of the Project to both Client and DCI,the risks have been allocated such that Client
<br />agrees that DCI’s maximum liability to Client or anyone claiming through client for any
<br />and all injuries to persons or property,claims,losses,expenses,damages,legal fees
<br />or costs,and claim expenses,whether arising out of the formation of,performance of
<br />services under,or breach of this Agreement or any amendment thereto,or arising
<br />from DCI’s breach of duties owed independent of this Agreement,including those
<br />based on statute,tort,common law or otherwise,shall not exceed ten times the fees
<br />paid to DCI hereunder,or $500,000,whichever is less.In the event that the foregoing
<br />is deemed unenforceable by a court or arbitrator having lurisdiction,DCI’s liability
<br />shall in no event exceed the applicable limits of liability insurance required under this
<br />Agreement which are then available at the time of settlement or judgment.
<br />CONSEQUENTIAL DAMAGES:DCI and Client waive consequential damages for
<br />claims,disputes or other matters in question arising out of or relating to this Agreement.
<br />This mutual waiver is applicable,but not limited to,lost profits,loss of capital,loss of
<br />use,or any other indirect,special,or consequential damage,whether arising in contract,
<br />tort,warranty,or strict liability.
<br />INSURANCE:DCI agrees to carry the following types and amounts of insurance:
<br />commercial general liability (CGL)($1,000,000 per occurrence,$2,000,000 annual
<br />aggregate);automobile ($1,000,000 combined single limit):worker’s compensation (at
<br />statutory limits);employer’s liability ($500,000 per incident,person,and disease):and
<br />professional liability ($1,000,000 per claim,$2,000,000 annual aggregate).DCI will name
<br />Client as an additional insured on its CGL and automobile policies if Client makes a written
<br />request for such coverage within seven (7)days of execution of this Agreement.
<br />LIMITATION OF ACTIONS:As an inducement fof DCI to take on the Project,which carries
<br />the risk of liability that could extend far into the future,any suit against DCI arising from
<br />Dcl’s performance or nonperformance of services under the Agreement,or related to the
<br />formation,performance or breach of this Agreement,will be forever barred if not filed within:
<br />(i)three (3)years following substantial completion of the Project to which this Agreement
<br />pertains;or (it)if this Agreement does not pertain to construction of a new project,three (3)
<br />years after the date DCI’s services under this Agreement have been concluded.This term
<br />has been bargained for at arms’length.
<br />INSTRUMENTS OF SERVICE:Dcl’s Instruments of Service (as defined in AlA
<br />Document A2017M.2017)are intended for use solely for this Project and shall also
<br />include any Building Information Models (BIM)or other electronic files (“Digital Media
<br />Files”)prepared by DCI.DCI shall retain all rights,including ownership and copyright,
<br />to the Instruments of Service.Provided Client substantially performs all obligations
<br />under this Agreement,DCI grants Client a non-exclusive license to use the
<br />Instruments of Service solely for purposes of constructing,using,and maintaining the
<br />Project If Client modifies or uses DCI’s Instruments of Service without retaining DCI,
<br />then Client releases DCI from any liability,claims or damages arising out of such use
<br />and further agrees to defend,indemnify,and hold harmless DCI from and against any
<br />liability,claims or damages arising out of such use.Except for rightful termination of
<br />this Agreement by Client,termination of this Agreement shall terminate the license
<br />granted in this section.DCI shall have the right to include photographic or artistic
<br />representations of the Project among DCI’s promotional and professional materials.
<br />DIGITAL MEDIA FILES:DCI may provide certain Digital Media Files,including DCI’s
<br />BIM model,to Client upon request,but any use of the Digital Media Files by the Client
<br />shall be at Client’s sole risk.DCI does not warrant the Digital Media Files in any way.
<br />Unless otherwise specified in this Agreement,only the officially-issued,stamped and
<br />signed documents are to be interpreted as correct.Client agrees not to further
<br />disseminate the Digital Media Files without DCIs prior written consent.
<br />PROJECT SITE:DCI shall not have control over,charge of,or responsibility for
<br />construction means,methods,or sequences,or for safety precautions or programs
<br />in connection with the Project,nor shall DCI be responsible for any contractor’s failure
<br />to construct the Project in accordance with the requirements of the construction
<br />agreement.DCI shall have no responsibility for the discovery,handling,or removal
<br />of.or exposure of persons to,hazardous or toxic substances at the Project site.
<br />MEDIATION,LAW &FORUM:As a condition precedent to any litigation,all disputes
<br />arising out of this Agreement or DCI’s services shall be submitted to mediation.The
<br />cost of the mediator shall be shared equally by the parties.The parties further agree
<br />to include the foregoing provision in all agreements with independent contractors and
<br />consultants retained for the Project.This Agreement shall be governed by the laws
<br />of the State where the Project is located,without regard to its choice of law rules.Any
<br />litigation relating to this Agreement shall be brought in a state or federal court having
<br />jurisdiction over the dispute in the State where the Project is located;alternatively,
<br />DCI at its sole discretion may elect to bring suit in (or transfer any suit filed under this
<br />Agreement to)King County,Washington Superior Court,in which case Washington
<br />law (excluding its conflicts of laws rules)shall apply.
<br />CORPORATE RESPONSIBILITY:DCI’s services shall not subject DCI’s individual
<br />employees,officers,or directors,including any engineer who affixed his or her seal
<br />to the plans for the Project,to any personal legal exposure for the risks associated
<br />with this Project.Client agrees that all claims,demands,or suits shall be directed
<br />and/or asserted only against DCI,a Washington state professional corporation.
<br />TERMINATION:Either party may terminate this Agreement upon not less than seven
<br />(7)days’written notice should the other party fail to substantially perform in
<br />accordance with the terms of this Agreement through no fault of the party initiating
<br />the termination.
<br />THIRD PARTIES:Nothing contained in this Agreement shall create a contractual
<br />relationship with,or a cause of action in favor of,a third party against either DCI or
<br />Client.Neither party shall assign this Agreement without the written consent of the
<br />other.
<br />RIGHTS CUMULATIVE:All rights and remedies of either party under the Agreement,
<br />will be cumulative and not mutually exclusive;the exercise of or failure to exercise
<br />one right or remedy will not be deemed a waiver of any other right or remedy,and no
<br />waiver shall be effective unless made in writing.
<br />ENTIRE AGREEMENT:If any term of this Agreement,or its application to any
<br />circumstances,is determined to be invalid or unenforceable to any extent,the
<br />remaining provisions of this Agreement shall remain valid and fully enforceable.
<br />Neither party has relied upon any statement or representation except for those
<br />expressly contained in this Agreement.This Agreement incorporates and
<br />supersedes all prior negotiations,agreements,and representations.
<br />COUNTERPARTS:This Agreement may be executed in any number of counterparts,
<br />each of which shall be deemed an original but all of which together shall constitute
<br />one complete instrument.Transmission by fax or email of an image of an executed
<br />counterpart shall have the same effect as a manually-signed original.
<br />FebrUary 2024
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