A. CLIENTS RESPONSIBILITIES A.1 Name CLIENT'S representative with authority to receive information and transmit instructions for CLIENT. A.2 Provide CLIENT'S requirements for project, including objectives and constraints, design and construction standards, bonding and insurance requirements, and contract forms. A.3 Provide available information pertinent to project upon which CONSULTANT may rely. A.4 Arrange for access by CONSULTANT upon public and private property, as required. A.5 Examine documents presented by CONSULTANT, obtain legal and other advice as CLIENT deems appropriate, and render written decisions within reasonable time. A.6 Obtain consents, approvals, licenses, and permits necessary for project. A.7 Advertise for and open bids when scheduled. A.8 Provide services necessary for project but not within scope of CONSULTANT'S services. A.9 Indemnify CONSULTANT, its employees, agents, and consultants against claims arising out of CONSULTANT'S design, if there has been a deviation from the design beyond the CONSULTANT'S control or failure to follow CONSULTANT'S recommendation and such deviation or failure caused the claims. A.10 Promptly notify CONSULTANT when CLIENT learns of contractor error or any development that affects scope or timing of CONSULTANT'S services. B. CONSULTANTS RESPONSIBILITIES B.1 Provide engineering services as outlined within scope of CONSULTANT'S services. B.2 Provide engineering services as outlined in item D.9.1. C. PERIOD OF SERVICE C.1 CONSULTANT is not responsible for delays due to factors beyond its control. C.2 If CLIENT requests changes in project, compensation for, and time of performance of CONSULTANT'S services, shall be adjusted appropriately. D. GENERAL D.1 Termination. D.1.1 Either party may terminate their obligation to provide further services upon twenty (20) days' written notice, after substantial default by other party through no fault of terminating party. D.1.2 CLIENT may terminate CONSULTANT'S obligation to provide further services upon twenty (20) days' written notice if project is abandoned. In such event, progress payments due CONSULTANT for services rendered, plus unpaid reimbursable expenses and termination charge, shall constitute total compensation due. D.2 Reuse of Documents. D.2.1 All tangible items prepared by CONSULTANT are instruments of service, and CONSULTANT retains all copy-rights. CLIENT may retain copies for reference, but reuse on another project without CONSULTANT'S written consent is prohibited. CLIENT will indemnify CONSULTANT, its employees, agents, and consultants against claims resulting from such prohibited reuse. Said items are not intended to be suitable for completion of this project by others. D.2.2 Submittal or distribution of items in connection with project is not publication in derogation of CONSULTANTS rights. D.3 Payment. D.3.1 CONSULTANT shall submit a monthly statement for services rendered and reimbursable expenses incurred. CLIENT shall make prompt monthly payments. D.3.2 If CLIENT fails to make payment within thirty (30) days after receipt of statement, interest at maximum legal rate or at a rate of 18%, whichever is less, shall accrue; and, in addition, CONSULTANT may, after giving seven (7) days' written notice, suspend services until it has been paid in full all amounts due it. D.3.3 CLIENT has provided or shall provide for payment from one or more lawful sources of all sums to be paid to CONSULTANT. D.3.4 CONSULTANT'S compensation shall not be reduced on account of any amounts withheld from payments to contractors. D.4 Controlling Law. Agreement shall be governed by Utah law. D.5 Successors and Assigns. D.5.1 The parties bind themselves, their successors, and legal representatives to the other party and to successors and legal representatives of such other party, in respect to all covenants and obligations of this Agreement. D.5.2 Neither party shall assign, sublet, or transfer any interest in this Agreement without written consent of the other, provided CONSULTANT may employ such independent consultants, associates, and subcontractors as it may deem appropriate. D.5.3 Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the parties. D.6 CONSULTANT'S Accounting Records. Records of CONSULTANT'S personnel time, reimbursable expenses, and accounts between parties shall be kept on a generally-recognized accounting basis. D.7 Separate Provisions. If any provisions of this Agreement shall be held to be invalid or unenforceable, remaining provisions shall be valid and binding. D.8 Waiver. No waiver shall constitute a waiver of any subsequent breach. D.9 Warranty. D.9.1 CONSULTANT shall use reasonable care to reflect requirements of all applicable laws, rules, or regulations of which CONSULTANT has knowledge or about which CLIENT specifically advises in writing, which are in effect on date of Agreement. CONSULTANT INTENDS TO RENDER SERVICES IN ACCORDANCE WITH GENERALLY ACCEPTED PROFESSIONAL STANDARDS, BUT NO OTHER WARRANTY IS EXTENDED, EITHER EXPRESS OR IMPLIED, IN CONNECTION WITH SUCH SERVICES. CLIENT'S rights and remedies in this Agreement are exclusive. D.9.2 CONSULTANT shall not be responsible for contractors' construction means, methods, techniques, sequences, or procedures, or for contractors' safety precautions and programs, or for contractors' failure to perform according to contract documents. D.9.3 The CONSULTANT believes that any computer software provided under this Agreement is suitable for the intended purpose, however, it does not warrant the suitability, merchantability, or fitness for a particular purpose of this software. D.10 Period of Repose. Any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued not later than completion of services to be performed by CONSULTANT. D.11 Indemnification. To the fullest extent permitted by law, CONSULTANT shall indemnify and hold harmless CLIENT, CLIENTS officers, directors, partners, employees, and agents from and against any and all claims for bodily injury and for damage to tangible property caused solely by the negligent acts or omissions of CONSULTANT or CONSULTANT'S officers, directors, partners, employees, agents, and CONSULTANT'S consultants in the performance and furnishing of CONSULTANT'S services under this Agreement. Any indemnification shall be limited to the terms and amounts of coverage of the CONSULTANT'S insurance policies. To the fullest extent permitted by law, CLIENT shall indemnify and hold harmless CONSULTANT, CONSULTANT'S officers, directors, partners, employees, and agents and CONSULTANT'S consultants from and against any and all claims for bodily injury and for damage to tangible property caused solely by the negligent acts or omissions of CLIENT or CLIENTS officers, directors, partners, employees, agents, and CLIENT'S consultants with respect to this Agreement on the Project. In addition to the indemnity provided under this section, and to the fullest extent permitted by law, CLIENT shall indemnify and hold harmless CONSULTANT and its officers, directors, partners, employees, and agents and CONSULTANT'S consultants from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) caused by, arising out of, or relating to the presence, discharge, release, or escape of asbestos, PCBs, petroleum, hazardous waste, or radioactive material at, on, under, or from the Project site. D.12 Extent of Agreement. This Agreement represents the entire agreement between the parties and may be amended only by written instrument signed by both parties. D.13 Subrogation Waiver. The parties waive all rights against each other, and against contractors, consultants, agents, and employees of the other for damages covered by any property insurance during construction, and each shall require similar waivers from their contractors, consultants, and agent.
D.14 Limits of Liability. This limits of CONSULTANT'S liability is up to the entire engineering fee or up to $100,000, which ever is less.