Microsoft Word - Sample Contract Provisions (June 2017).docx

CLIENT: __________________

ENGINEER/CONSULTANT: __________________

ENGINEER/CONSULTANT CONTRACT PROVISIONS

1. CONTRACT – These Contract Provisions and the accompanying Proposal constitute the full and

complete Agreement between the parties and may be changed, amended, added to, superseded, or

waived only if both parties specifically agree in writing to such amendment of the Agreement. In the event

of any inconsistency between these Contract Provisions and any proposal, contract, purchase order,

requisition, notice to proceed, or like document, these Contract Provisions shall govern.

2. SCOPE OF SERVICES – ___________________________________________________________

_____________________________________________________________________________________

3. PAYMENT TERMS – ___________________________________________________________

_____________________________________________________________________________________

4. RIGHT OF ENTRY – When entry to property is required for the ENGINEER/CONSULTANT to perform

its services, the Client agrees to obtain legal right-of-entry on the property.

5. DOCUMENTS – All reports, notes, drawings, specifications, data, calculations, and other documents,

including those in electronic form, prepared by ENGINEER/CONSULTANT are instruments of

ENGINEER’s/CONSULTANT’s service that shall remain ENGINEER’s/CONSULTANT's property. The

Client agrees not to use ENGINEER/CONSULTANT-generated documents for marketing purposes, for

projects other than the project for which the documents were prepared by ENGINEER/CONSULTANT, or

for future modifications to this project, without ENGINEER’s/CONSULTANT's express written permission.

Any reuse or distribution to third parties without such express written permission or project-specific

adaptation by ENGINEER/CONSULTANT will be at the Client’s sole risk and without liability to

ENGINEER/CONSULTANT or its employees, subsidiaries, independent professional associates,

subconsultants, and subcontractors. Client shall, to the fullest extent permitted by law, defend, indemnify,

and hold harmless ENGINEER/CONSULTANT from and against any and all costs, expenses, fees, losses,

claims, demands, liabilities, suits, actions, and damages whatsoever arising out of or resulting from such

unauthorized reuse or distribution.

6. DISPOSAL OF SAMPLES –ENGINEER/CONSULTANT will discard samples upon completion of the

work covered under this Agreement, unless the Client instructs otherwise in writing.

7. HAZARDOUS MATERIALS – The scope of ENGINEER’s/CONSULTANT’s services for this Agreement

does not include any responsibility for detection, remediation, accidental release, or services relating to

waste, oil, asbestos, lead, or other hazardous materials, as defined by Federal, State, and local laws or

regulations.

8. CONSTRUCTION PHASE SERVICES – If ENGINEER/CONSULTANT performs any services during the

construction phase of the project, ENGINEER/CONSULTANT shall not supervise, direct, or have control

over Contractor’s work. ENGINEER/CONSULTANT shall not have authority over or responsibility for the

construction means, methods, techniques, sequences or procedures or for safety precautions and

programs in connection with the work of the Contractor. ENGINEER/CONSULTANT does not guarantee

the performance of the construction contract by the Contractor and does not assume responsibility for the

Contractor’s failure to furnish and perform its work in accordance with the Contract Documents.

9. STANDARD OF CARE – ENGINEER/CONSULTANT and its employees, subsidiaries, independent

professional associates, subconsultants, and subcontractors will exercise that degree of care and skill

ordinarily practiced under similar circumstances by design professionals providing similar services. Client

agrees that services provided will be rendered without any warranty, express or implied.

ENGINEER/CONSULTANT shall exercise usual and customary professional care in its efforts to comply

with applicable codes, regulations, laws rules, ordinances, and such other requirements in effect as of the

date of execution of this Agreement.

10. OPINION OF PROBABLE COSTS – When required as part of its work, ENGINEER/CONSULTANT will

furnish opinions of probable cost, but does not guarantee the accuracy of such estimates. Opinions of

probable cost, financial evaluations, feasibility studies, economic analyses of alternate solutions, and

utilitarian considerations of operations and maintenance costs prepared by ENGINEER/CONSULTANT

hereunder will be made on the basis of ENGINEER’s/CONSULTANT's experience and qualifications and

will represent ENGINEER’s/CONSULTANT's judgment as an experienced and qualified design

professional. However, users of the probable cost opinions must recognize that ENGINEER/CONSULTANT

does not have control over the cost of labor, material, equipment, or services furnished by others or over

market conditions or contractors' methods of determining prices or performing the work.

11. SUSPENSION OF WORK – The Client may, at any time, by written notice, suspend further work by

ENGINEER/CONSULTANT. The Client shall remain liable for, and shall promptly pay

ENGINEER/CONSULTANT for all services rendered to the date of suspension of services, plus suspension

charges, which shall include the cost of assembling documents, personnel and equipment, rescheduling or

reassignment, and commitments made to others on Client's behalf. Client shall pay

ENGINEER/CONSULTANT pursuant to the rates and charges set forth in the Proposal.

ENGINEER/CONSULTANT will submit monthly invoices to Client for services rendered and expenses

incurred. If Client does not pay invoices within thirty (30) days of submission of invoice,

ENGINEER/CONSULTANT may, upon written notice to the Client, suspend further work until payments are

brought current. The Client agrees to indemnify and hold ENGINEER/CONSULTANT harmless from any

claim or liability resulting from such suspension.

12. CHANGES OR DELAYS – Unless the accompanying Proposal provides otherwise, the proposed fees

constitute ENGINEER’s/CONSULTANT's estimate to perform the services required to complete the Project.

Required services often are not fully definable in the initial planning; accordingly, developments may dictate

a change in the scope of services to be performed. Where this occurs, changes in the Agreement shall be

negotiated and an equitable adjustment shall be made. Costs and schedule commitments shall be subject

to renegotiation for unreasonable delays caused by the Client's failure to provide specified facilities,

direction, or information, or if ENGINEER’s/CONSULTANT's failure to perform is due to any act of God,

labor trouble, fire, inclement weather, act of governmental authority, failure of transportation, accident,

power failure, or interruption or any other cause beyond the reasonable control of

ENGINEER/CONSULTANT. Temporary work stoppage caused by any of the above may result in additional

cost beyond that outlined in the accompanying Proposal.

13. LIABILITY – To the fullest extent permitted by law, the total liability, in the aggregate, of

ENGINEER/CONSULTANT and ENGINEER’s/CONSULTANT's officers, directors, employees, agents, and

consultants to Client and anyone claiming by, through or under Client, for any and all injuries, claims,

losses, expenses, or damages whatsoever arising out of or in any way related to

ENGINEER’s/CONSULTANT’s services, the Project or this Agreement, from any cause or causes

whatsoever, including but not limited to, negligence, strict liability, breach of contract or breach of warranty

shall not exceed the total compensation received by ENGINEER/CONSULTANT under this Agreement, or

the total amount of $________, whichever is greater.

14. CONFLICTS OF INTEREST – This assignment may involve parties with adverse interests to clients

with whom ENGINEER/CONSULTANT has current or past relationships. It is ENGINEER/CONSULTANT

policy to make reasonable attempts to identify such relationships prior to acceptance of a professional

assignment, but ENGINEER/CONSULTANT cannot assure that conflicts or perceived conflicts will not

arise, and ENGINEER/CONSULTANT does not accept responsibility for such occurrences.

15. REIMBURSABLE EXPENSES – ENGINEER/CONSULTANT will bill direct non-payroll expenses at

cost plus 10%. Direct expenses include all reasonable expenses resulting from required responses to

subpoenas or court orders related to work under the Contract.

16. MISCELLANEOUS

Governing Law: The laws of the state in which the ENGINEER/CONSULTANT office executing this

Agreement is located shall govern the validity and interpretation of this Agreement.

Invalid Terms: In the event any of these Contract Provisions are found to be illegal or otherwise

unenforceable, the unenforceable Contract Provision will be stricken. Striking such a Contract Provision

shall have no effect on the enforceability of the remaining Contract Provisions and those remaining

Contract Provisions shall continue in full force and effect as if the unenforceable Contract Provision were

never included in the Agreement.

Mediation: The Client and ENGINEER/CONSULTANT agree to submit all claims and disputes arising out

of this Agreement to non-binding mediation prior to the initiation of legal proceedings. This provision shall

survive completion or termination of this Agreement; however, neither party shall seek mediation of any

claim or dispute arising out of this Agreement beyond the period of time that would bar the initiation of legal

proceedings to litigate such claim or dispute under the applicable law.

CONSULTANT Reliance: ENGINEER/CONSULTANT shall be entitled to rely, without liability, on the

accuracy and completeness of any and all information provided by Client, Client’s consultants and

contractors, and information from public records, without the need for independent verification.

Certifications: ENGINEER/CONSULTANT shall not be required to sign any documents, no matter by

whom requested, that would result in ENGINEER’s/CONSULTANT's having to certify, guaranty, or warrant

the existence of conditions that ENGINEER/CONSULTANT cannot ascertain.

Third Parties: Nothing contained in this Agreement shall create a contractual relationship with, or a cause

of action in favor of, a third party against either the Client or ENGINEER/CONSULTANT.

ENGINEER’s/CONSULTANT’s services hereunder are being performed solely for the benefit of the Client,

and no other entity shall have any claim against ENGINEER/CONSULTANT because of this Agreement or

ENGINEER’s/CONSULTANT’s performance of services hereunder.

Consequential Damages: Neither the Client nor the ENGINEER/CONSULTANT shall be liable to the other

or shall make any claim for any incidental, indirect or consequential damages arising out of, or connected in

any way to the Project or this Agreement. This mutual waiver includes, but is not limited to, damages

related to loss of use, loss of profits, loss of income, loss of reputation, unrealized savings or diminution of

property value and shall apply to any cause of action including negligence, strict liability, breach of contract

and breach of warranty.

________________________________________________________

Client Authorized Representative Name (Please Print)

________________________________________________________ ___________________

Client Authorized Representative Signature Date

________________________________________________________

Engineer/Consultant Authorized Representative Name (Please Print)

________________________________________________________ ___________________

Engineer/Consultant Authorized Representative Signature Date

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