Page 17 - Bernardon Proposal for Design Services Revised

circumstances; or (C) An assumption by services caused by its negligence; however, the 20. Choice of Law: Unless otherwise
Bernardon to liability greater than or differing failure by Owner, and/or the Owner’s specified, the Law of the State or
from those explicit in this Agreement; or (D) Contractors or Subcontractors and Owner’s Commonwealth where the project resides shall
An assumption by Bernardon of the liabilities Consultants to notify Bernardon of such defects govern this Agreement. Terms in this
of any other party. in a timely fashion shall relieve Bernardon of Agreement shall have the same meaning as
the costs of remedying the defects above the those in AIA Document B101-2017, Standard
12. Risk Allocation/Limitation of Liability: sum such remedy would have cost had prompt Form of Agreement Between Owner and
The risks have been allocated such that the notification been given. Architect, and AIA document A201-2017,
Owner agrees that to the fullest extent General Conditions of the Contract for
permitted by law, Bernardon’s total liability to 15. Waiver of Consequential Damages: Construction, current as of the date of this
the Owner for any and all injuries, claims, Notwithstanding any other provision of this Agreement.
losses, expenses, damages, or claims expenses Agreement, the Owner agrees that Bernardon
arising out of this agreement from any cause or shall not be liable for any consequential 21. No Third-Party Beneficiaries: Nothing
causes shall not exceed the total amount of the damages claimed or incurred by the Owner, contained in this Agreement shall create a
fee paid to Bernardon. Such causes include but any Contractor, Subcontractor, or any other contractual relationship with, or a cause of
are not limited to Bernardon’s negligence, person or entity, arising from the Project. action in favor of, any third-party against
errors, omissions, strict liability, breach of Consequential damages waived herein include, Bernardon or the Owner. The Owner and
contract, or breach of warranty. Bernardon will but are not limited to, claims for loss of profits, Bernardon expressly and affirmatively disclaim
not be responsible for any loss, damage, or loss of business use, loss of beneficial use, loss any intent to designate any third-party as an
liability arising from Owner’s negligent acts, of rent, increased overhead, and/or increased actual or intended third-party beneficiary of
errors, or omissions or those by Owner’s general conditions. this Agreement.
consultants, contractors, and agents or from
those of any person whose conduct is not 16. Insurance: Bernardon’s policies for 22. Non-Assignment of Agreement: Neither
within Bernardon’s contractual responsibility. Workmen’s Compensation, Professional Owner nor Bernardon shall assign, sublet or
The Owner agrees that Bernardon shall not be Liability, and Standard Liability Insurance transfer its interest in this Agreement without
liable for claims by any present or subsequent protect Bernardon. The Owner shall require the written consent of the other. The Owner
purchaser of the premises that are the subject of each Contractor, Subcontractor, and/or shall not assign any claim, action or cause of
this Agreement resulting from any actual or Consultant to secure and maintain workers action arising under this Agreement or a breach
alleged defects in Bernardon’s drawings or compensation, general liability, and thereof or in connection with any of the
from Bernardon’s services. professional liability (where applicable) services performed or required to be performed
insurance. To the extent available, the Owner by this Agreement to any other person or entity.
13. Liability for Omissions: If, due to shall procure a policy of builder’s risk
Bernardon's negligent error, any required item insurance with sufficient limits of liability to 23. Acceptance by Authorization to
or component of the Project is omitted from protect all losses that may reasonably arise Proceed: In the event that Bernardon and the
Bernardon's Documents, Bernardon shall not be from the project. The Owner expressly agrees Owner have not executed this Agreement, the
responsible for paying the cost to add such item to require all of its Contractors, Subcontractors, Owner’s written or verbal authorization to
or component to the extent that such item or and Consultants to name Bernardon as an Bernardon to proceed with the performance of
component would have been otherwise additional insured on each policy of general the services set forth herein shall constitute
necessary to the Project or otherwise adds value liability and builder’s risk insurance. acceptance by the Owner of these Terms and
or betterment to the Project. Bernardon shall Conditions.
only be liable to the extent that such costs 17. Waiver of Subrogation: The Owner and
would have been avoided had Bernardon not Bernardon waive all rights, including all rights 24. Miscellaneous Provision: The Owner
been negligent. In no event will Bernardon be of subrogation, against each other and their agrees that it will include in their agreement
responsible for any cost or expense that agents and employees for property damages with any Contractor and/or Construction
provides betterment, upgrade, or enhancement covered by any property insurance during Manager the following clause: “The Owner
of the Project. The Owner’s sole and exclusive construction. The Owner shall require and Bernardon acknowledge that nothing in the
remedy for such negligent omissions where no appropriate like waivers from the Contractors, Owner’s agreement implies any undertaking by
otherwise avoidable costs are incurred by Consultants, and agents. Bernardon for the benefit of, or which may be
Owner is for Bernardon to perform services enforced by, the Contractor, or its
necessary to correct the omission without 18. Frivolous Suit: In the event the Owner Subcontractors, or the surety of any of them; it
charge to Owner; provided that where makes a claim or brings an action against being understood that Bernardon’s obligations
Bernardon's fees or reimbursable expenses Bernardon for any act arising out of the are to the Owner in performing such
would have been higher had the omitted item or performance of the services hereunder, and the obligations. Bernardon may increase the
component been included prior to construction, Owner fails to prove such a claim or action, burdens and expense of the Contractor, or its
Bernardon shall be entitled to such increased then the Owner shall pay all legal and other Subcontractors, or the surety of any of them.”
fees and reimbursable expenses. costs incurred by Bernardon in defense of such
claim or action. 25. Integration: This Agreement represents
14. Owner's Remedies: The Owner shall the entire and integrated Agreement between
promptly report to Bernardon any known or 19. Arbitration: Claims, disputes, or other the Owner and Bernardon and supersedes all
suspected errors, omissions, and/or defects in matters in question between the parties to this prior or contemporaneous negotiations,
Bernardon's services or those of Bernardon's agreement arising out of or relating to this representations, or agreements, either written or
consultants, so that Bernardon may take Agreement or breach thereof may, if both oral. This Agreement may not be amended,
measures to minimize the consequences of such parties agree, in writing, be subject to and modified or changed, except in writing. The
defect. The Owner warrants that Owner will decided by arbitration in accordance with the Owner and Bernardon each binds himself, his
impose an identical notification requirement in Construction Industry Arbitration Rules of the partners, successors, assigns, and legal
the contract(s) of all Contractors retained by American Arbitration Association currently in representatives to the other party to this
Owner and shall require all subcontracts at any effect unless the parties mutually agree Agreement and to the partners, successors,
level to contain a like requirement. Bernardon otherwise. assigns, and legal representatives of such other
shall be responsible for correcting defects in its party with respect to all terms, conditions, and
covenants of this Agreement.
Terms and Conditions of Agreement for Professional Services of Bernardon | January 1, 2023 Page 2 of 2

BERNARDON | Response to Request for Proposal
JBAS Realty, LLC | New Multi-Use Development in Scranton, PA | July 8, 2022, revised July 27, 2023 Page 11