1.0 CONSULTANT’S SERVICES. BDH (“Consultant”) shall perform the services identified in the attached proposal (the “Proposal”), for the party identified in the Proposal (the “Client”), and no other services or clients unless otherwise agreed and unless Consultant is paid additional compensation in accordance with this Proposal.
1.1 STANDARD OF CARE. Consultant’s services shall be performed based on the standard of reasonable professional care for services similar in scope, schedule, and complexity to the services being provided by Consultant. ALL WARRANTIES, EXPRESSED OR IMPLIED, UNDER THIS PROPOSAL OR OTHERWISE, IN CONNECTION WITH CONSULTANT’S SERVICES ARE EXPRESSLY DISCLAIMED.
1.2 SCHEDULE. Time limits established by the schedule identified in the Proposal shall not, except for reasonable cause, be exceeded by Consultant or Client. Consultant’s compensation shall be equitably adjusted in the event of delays caused by Client, Client’s other consultants, or Client’s agents. Fees quoted in the Proposal shall be adjusted if services do not commence within 90 days after the date of the Proposal. Neither party shall be deemed in default of this agreement to the extent that any delay or failure in the performance of its obligations results from any cause beyond its reasonable control and without its negligence or other legal fault.
1.3 LIMITATIONS UPON AND EXCLUSIONS FROM RESPONSIBILITY DURING CONSTRUCTION: Whether or not Consultant provides services during construction: (1) Consultant shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. (2) Consultant shall not have control over, or charge of, and shall not be responsible for: construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, including compliance with State or Federal OSHA requirements. (3) To the fullest extent permitted by law, Client shall defend, indemnify, and hold Consultant harmless from all loss, damage, liability, cost or expense (including but not limited to reasonable attorneys’ fees) arising out of or relating to the failure of the Work to conform to the Drawings and Specifications.
2.0 ADDITIONAL SERVICES. In addition to any other Additional Services listed in the Proposal, the following services are not included in Basic Services and Client shall compensate Consultant for such services, in addition to compensation for Basic Services: (1) Making revisions in Drawings and Specifications or other documents or services when such revisions are (a) inconsistent with approvals, information or instructions previously given, (b) the result of adjustments in Client’s requirements, (c) required by enactment, interpretation or revision of codes, laws or regulations subsequent to preparation of such documents, (d) required by the failure of Client or Client’s consultants to render decisions or to provide necessary information in a timely manner, (e) imposed by municipal or other authorities as a condition for approval of a project, unless the Drawings, Specifications or other documents clearly were not in compliance with applicable law when submitted for approval, or (f) due to or causes not solely within control of Consultant: (2) Providing any services excluded from the Scope of Services identified in the Proposal: (3) Providing any other services not otherwise expressly included in this Proposal.
3.0 CLIENT’S REPRESENTATIONS AND RESPONSIBILITIES. Client at its expense shall promptly provide full information and requirements for the Project, including but not limited to all information in Client’s possession or otherwise available to Client, Client’s consultants, or Client’s agents relating to: the design, construction, and actual or intended use of the Project; as-built information regarding existing structures and improvements; existing surveys describing physical characteristics, legal limitations and utility locations for the site of Project; existing soils information and professional recommendations of soils (geotechnical) engineers; and all other information reasonably requested by Consultant. Consultant shall be entitled to rely upon the accuracy and completeness of all information furnished by Client. Client shall provide information, render decisions, and make approvals promptly. Client shall retain a qualified Contractor to construct the Project. The person signing this agreement on behalf of Client represents and warrants that Client either owns fee title to, or has the legal right to direct Consultant to perform services in connection with, the site of the Project and that there is presently nothing to prevent Consultant from filing a lien against the site of the Project.
4.0 OWNERSHIP AND USE OF DOCUMENTS. Consultant’s Drawings, Specifications, and other documents (including CAD and Revit files or other information on electronic media) as well as substantially similar and/or derivative documents prepared by using or copying Consultant’s intellectual property (collectively referred to as “Documents”), are instruments of Consultant’s service for use solely with respect to this Project. Consultant is the author of these Documents and retains all common law, statutory and/ or reserved rights, including copyright. The Documents may not be used on other projects, for addition to this Project or for completion of this Project by others.
5.0 DISPUTE RESOLUTION, GOVERNING LAW.
5.1 The Consultant and Client agree to negotiate any claim, dispute or other matter in question arising out of or relating to this Proposal or breach thereof (“Claim”) in good faith prior to exercising any other legal or equitable remedy. If a Claim cannot be settled within 30 days by good faith negotiations, then as a condition precedent to arbitration or litigation the Consultant and Client agree to submit it to mediation in accordance with the Construction Industry Rules of the American Arbitration Association. If the claim or dispute cannot be settled by mediation within 90 days after selection of a mediator, then either party may proceed to arbitration or litigation as set forth in Section 5.2 below.
5.2 Any Claim in which the aggregate amount in controversy (exclusive of interest, attorneys’ fees and costs) is less than or equal to $100,000 shall be decided by binding arbitration in Minneapolis in accordance with the Construction Industry Rules of the American Arbitration Association. Judgment on any award by the arbitrator(s) shall be enforceable in any court having jurisdiction. Any Claim in which the aggregate amount in controversy (exclusive of interest, attorneys’ fees and costs) is greater than $100,000 shall be resolved by litigation in the State or Federal Court located within Hennepin County, Minnesota. Consultant and Client expressly consent to the exclusive personal jurisdiction and venue of the Minnesota courts for all purposes relating to this Proposal. The parties waive trial by jury. This Proposal shall be governed by Minnesota law, without regard to conflicts of law principles. In no event shall a claim or dispute be made or sustained if it would be barred by the applicable statute of limitations.
6.0 TERMINATION. This Proposal may be terminated by either party upon not less than seven days written notice should the other party fail to perform in accordance with its terms through no fault of the party initiating termination.
7.0 MISCELLANEOUS PROVISIONS. (1) Services will be performed based upon limited investigations and no destructive or invasive testing techniques will be employed, unless otherwise agreed in writing. (2) The Client and Consultant have discussed the risks, rewards, and benefits of the Project and Consultant’s total fee for its services. The risks have been allocated such that to the fullest extent permitted by law, and for Client to receive the benefit of a fee which includes a reasonable allowance for risks, CONSULTANT’S TOTAL LIABILITY TO CLIENT FOR ANY LOSS, CLAIM OR DAMAGE ARISING OUT OF THE NEGLIGENCE OR OTHER LEGAL FAULT OF CONSULTANT IN PERFORMING ITS SERVICES SHALL BE LIMITED TO THE GREATER OF (I) THE AMOUNT STATED IN THIS PROPOSAL AS COMPENSATION FOR CONSULTANT’S BASIC SERVICES, OR (II) THE LIMITS OF ANY INSURANCE ACTUALLY AVAILABLE TO CONSULTANT. Client may eliminate this limitation on liability by notifying Consultantin writing prior to commencement of Consultant’s services and tendering, with such written notice, a one-time payment equal to twenty percent (20%) of the amount identified in the Proposal as Consultant’s Basic Compensation. This increased compensation is not the purchase of insurance. (3) In no event shall Consultant be liable for damages for loss of profits, loss of use, loss of revenue, or any or special, indirect or consequential damages of any kind. (4) This Proposal represents the entire and integrated agreement between Client and Consultant and supersedes all prior negotiations, representations or agreements, either written or oral. (5) This Proposal may be amended by written instrument signed by both Client and Consultant or, in the case of Additional Services, by a written confirmation from Consultant to which Client does not object within ten (10) working days.
8.0 PAYMENTS TO CONSULTANT. Payments are due upon presentation of Consultant’s invoices. If Payments are not made within thirty (30) days after date of invoice, a SERVICE CHARGE OF ONE AND ONE HALF (1.5) PERCENT PER MONTH (18% PER ANNUM) or the maximum rate permitted by law, whichever is less, will be charged on any unpaid balance. Service charges may be compounded.
8.1 NOTICE OF LIEN RIGHTS (MINNESOTA). (A) ANY PERSON OR COMPANY SUPPLYING LABOR OR MATERIALS FOR THIS IMPROVEMENT TO YOUR PROPERTY MAY FILE A LIEN AGAINST YOUR PROPERTY IF THAT PERSON OR COMPANY IS NOT PAID FOR THE CONTRIBUTIONS. (B) UNDER MINNESOTA LAW, YOU HAVE THE RIGHT TO PAY PERSONS WHO SUPPLIED LABOR OR MATERIALS FOR THIS IMPROVEMENT DIRECTLY AND DEDUCT THIS AMOUNT FROM OUR CONTRACT PRICE, OR WITHHOLD THE AMOUNTS DUE THEM FROM US UNTIL 120 DAYS AFTER COMPLETION OF THE IMPROVEMENT UNLESS WE GIVE YOU A LIEN WAIVER SIGNED BY PERSONS WHO SUPPLIED ANY LABOR OR MATERIAL FOR THE IMPROVEMENT AND WHO GAVE YOU TIMELY NOTICE.
9.0 BASIS OF COMPENSATION. Client shall compensate Consultant as set forth in the Proposal. AN ESTIMATED FEE IS NOT A FIRM FIGURE. If the Scope of or schedule for Consultant’s Services is changed materially, the compensation shall be equitably adjusted. Rates and multiples for Additional Services and other services as set forth in the Proposal shall be adjusted annually in accordance with normal salary review practices of Consultant. For Additional Services of Consultant, compensation shall be an hourly rate, plus Reimbursable Charges; or, if agreed by Client and Consultant in writing, a lump sum amount. For additional services of Consultant’s consultants, compensation will be 1.10 times the amount billed to Consultant for such services, plus Reimbursable Charges. For Reimbursable Charges, Consultant shall be compensated for out-of-pocket expenditures incurred in connection with the services identified in this Proposal, based on 1.10 times actual costs incurred. In addition to other expenses, Consultant will be reimbursed for any applicable sales, use, or similar taxes related to services or products provided under this Proposal which may be imposed by any governmental entity. A MERCHANDISE SURCHARGE IS APPLIED TO ALL FF&E PURCHASED BY BDH. SURCHARGE VARIES DEPENDING ON MERCHANDISE TOTAL.
10.0 DELAYED PAYMENT; PAYMENT DISPUTES.
10.1 CONDITIONS PRECEDENT TO WITHHOLDING PAYMENT. The Client may not withhold any payments to Consultant unless the basis of (including all particulars) and amount in dispute are identified and presented in writing to Consultant not later than the twenty-fifth (25th) calendar day after presentation of the disputed invoice. Objections to invoices not made within this time period are deemed waived. Unless Client proceeds in accordance with this Section 10.1, Client’s failure to pay any invoice (either on the project which is the subject of this proposal or in connection with any other project for which Consultant is providing services to Client) within thirty (30) calendar days after presentation of Consultant’s invoice shall constitute just cause for the suspension of services on all projects and the withholding of all deliverables on all projects by Consultant. Client will pay all of Consultant’s costs of collection, including: internal labor costs at the Additional Services rate; reasonable attorneys’ fees; and litigation and arbitration costs and fees, in the event Client fails to make timely payment to Consultant in violation of this contract. External fees, costs, and expenses incurred under this clause will be reimbursed at the rate specified in the Proposal for external reimbursable expenses.
10.2 NOTICE OF CLAIMED ERRORS OR OMISSIONS. In consideration of Consultant’s providing insurance to cover claims made by Client, Client hereby waives any right of offset as to fees otherwise due to Consultant. Client shall provide written notice, including all known particulars, to Consultant of any claimed errors or omissions in Consultant’s services not later than 60 calendar days after Client becomes aware, or in the exercise of reasonable diligence should have become aware, of the existence of such error or omission. Consultant shall be given a reasonable opportunity, during such 60-day period, to investigate and recommend ways of mitigating any alleged damages. Client’s failure to provide such notice, and/or Client’s failure to provide Consultant a reasonable opportunity to investigate and make recommendations, within the time stated shall constitute an irrevocable waiver of any and all claims, counterclaims, defenses, setoffs, or recoupments Client might have in connection with any such alleged error or omission. In the event Client asserts a claim in violation of this paragraph, or in the event that any other error and omission claim asserted by Client is determined to be without substantial merit, Client shall pay all of Consultant’s: internal labor costs at the Additional Services rate; reasonable attorneys’ fees; expenses; and arbitration and litigation costs incurred in investigating and defending such claim. External fees, costs, and expenses incurred under this clause will be reimbursed at the rate specified in the Proposal for external reimbursable expenses.
11.0 INDEMNIFICATION. Client and Consultant each agree to indemnify and hold the other harmless, and their respective officers, employees, agents and representatives, from and against liability for all claims, losses, damages or expenses, including reasonable attorney’s fees, to the extent such claims, losses, damages or expenses are caused by the indemnifying party’s negligent acts, errors or omissions. In the event claims, losses, damages or expenses are caused by the joint or concurrent negligence of Client and Consultant, they shall be borne by each party in proportion to its negligence.