Page 17 - Bernardon Response to Request for Proposal-Dennis Farm

expected from other architects under like shall be responsible for correcting defects in its 20. Choice of Law: Unless otherwise
circumstances; or (C) An assumption by services caused by its negligence; however, the specified, the Law of the State or
Bernardon to liability greater than or differing failure by Owner, and/or the Owner’s Commonwealth where the project resides shall
from those explicit in this Agreement; or (D) Contractors or Subcontractors and Owner’s govern this Agreement. Terms in this
An assumption by Bernardon of the liabilities Consultants to notify Bernardon of such defects Agreement shall have the same meaning as
of any other party. in a timely fashion shall relieve Bernardon of those in AIA Document B101-2017, Standard
the costs of remedying the defects above the Form of Agreement Between Owner and
12. Risk Allocation/Limitation of Liability: sum such remedy would have cost had prompt Architect, and AIA document A201-2017,
The risks have been allocated such that the notification been given. General Conditions of the Contract for
Owner agrees that to the fullest extent Construction, current as of the date of this
permitted by law, Bernardon’s total liability to 15. Waiver of Consequential Damages: Agreement.
the Owner for any and all injuries, claims, Notwithstanding any other provision of this
losses, expenses, damages, or claims expenses Agreement, the Owner agrees that Bernardon 21. No Third-Party Beneficiaries: Nothing
arising out of this agreement from any cause or shall not be liable for any consequential contained in this Agreement shall create a
causes shall not exceed the total amount of the damages claimed or incurred by the Owner, contractual relationship with, or a cause of
fee paid to Bernardon. Such causes include but any Contractor, Subcontractor, or any other action in favor of, any third-party against
are not limited to Bernardon’s negligence, person or entity, arising from the Project. Bernardon or the Owner. The Owner and
errors, omissions, strict liability, breach of Consequential damages waived herein include, Bernardon expressly and affirmatively disclaim
contract, or breach of warranty. Bernardon will but are not limited to, claims for loss of profits, any intent to designate any third-party as an
not be responsible for any loss, damage, or loss of business use, loss of beneficial use, loss actual or intended third-party beneficiary of
liability arising from Owner’s negligent acts, of rent, increased overhead, and/or increased this Agreement.
errors, or omissions or those by Owner’s general conditions.
consultants, contractors, and agents or from 22. Non-Assignment of Agreement: Neither
those of any person whose conduct is not 16. Insurance: Bernardon’s policies for Owner nor Bernardon shall assign, sublet or
within Bernardon’s contractual responsibility. Workmen’s Compensation, Professional transfer its interest in this Agreement without
The Owner agrees that Bernardon shall not be Liability, and Standard Liability Insurance the written consent of the other. The Owner
liable for claims by any present or subsequent protect Bernardon. The Owner shall require shall not assign any claim, action or cause of
purchaser of the premises that are the subject of each Contractor, Subcontractor, and/or action arising under this Agreement or a breach
this Agreement resulting from any actual or Consultant to secure and maintain workers thereof or in connection with any of the
alleged defects in Bernardon’s drawings or compensation, general liability, and services performed or required to be performed
from Bernardon’s services. professional liability (where applicable) by this Agreement to any other person or entity.
insurance. To the extent available, the Owner
13. Liability for Omissions: If, due to shall procure a policy of builder’s risk 23. Acceptance by Authorization to
Bernardon's negligent error, any required item insurance with sufficient limits of liability to Proceed: In the event that Bernardon and the
or component of the Project is omitted from protect all losses that may reasonably arise Owner have not executed this Agreement, the
Bernardon's Documents, Bernardon shall not be from the project. The Owner expressly agrees Owner’s written or verbal authorization to
responsible for paying the cost to add such item to require all of its Contractors, Subcontractors, Bernardon to proceed with the performance of
or component to the extent that such item or and Consultants to name Bernardon as an the services set forth herein shall constitute
component would have been otherwise additional insured on each policy of general acceptance by the Owner of these Terms and
necessary to the Project or otherwise adds value liability and builder’s risk insurance. Conditions.
or betterment to the Project. Bernardon shall
only be liable to the extent that such costs 17. Waiver of Subrogation: The Owner and 24. Miscellaneous Provision: The Owner
would have been avoided had Bernardon not Bernardon waive all rights, including all rights agrees that it will include in their agreement
been negligent. In no event will Bernardon be of subrogation, against each other and their with any Contractor and/or Construction
responsible for any cost or expense that agents and employees for property damages Manager the following clause: “The Owner
provides betterment, upgrade, or enhancement covered by any property insurance during and Bernardon acknowledge that nothing in the
of the Project. The Owner’s sole and exclusive construction. The Owner shall require Owner’s agreement implies any undertaking by
remedy for such negligent omissions where no appropriate like waivers from the Contractors, Bernardon for the benefit of, or which may be
otherwise avoidable costs are incurred by Consultants, and agents. enforced by, the Contractor, or its
Owner is for Bernardon to perform services Subcontractors, or the surety of any of them; it
necessary to correct the omission without 18. Frivolous Suit: In the event the Owner being understood that Bernardon’s obligations
charge to Owner; provided that where makes a claim or brings an action against are to the Owner in performing such
Bernardon's fees or reimbursable expenses Bernardon for any act arising out of the obligations. Bernardon may increase the
would have been higher had the omitted item or performance of the services hereunder, and the burdens and expense of the Contractor, or its
component been included prior to construction, Owner fails to prove such a claim or action, Subcontractors, or the surety of any of them.”
Bernardon shall be entitled to such increased then the Owner shall pay all legal and other
fees and reimbursable expenses. costs incurred by Bernardon in defense of such 25. Integration: This Agreement represents
claim or action. the entire and integrated Agreement between
14. Owner's Remedies: The Owner shall the Owner and Bernardon and supersedes all
promptly report to Bernardon any known or 19. Arbitration: Claims, disputes, or other prior or contemporaneous negotiations,
suspected errors, omissions, and/or defects in matters in question between the parties to this representations, or agreements, either written or
Bernardon's services or those of Bernardon's agreement arising out of or relating to this oral. This Agreement may not be amended,
consultants, so that Bernardon may take Agreement or breach thereof may, if both modified or changed, except in writing. The
measures to minimize the consequences of such parties agree, in writing, be subject to and Owner and Bernardon each binds himself, his
defect. The Owner warrants that Owner will decided by arbitration in accordance with the partners, successors, assigns, and legal
impose an identical notification requirement in Construction Industry Arbitration Rules of the representatives to the other party to this
the contract(s) of all Contractors retained by American Arbitration Association currently in Agreement and to the partners, successors,
Owner and shall require all subcontracts at any effect unless the parties mutually agree assigns, and legal representatives of such other
level to contain a like requirement. Bernardon otherwise. party with respect to all terms, conditions, and
covenants of this Agreement.
Terms and Conditions of Agreement for Professional Services of Bernardon | January 1, 2021 Page 2 of 2