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• , ATTACHMENT 2-GENERAL TERMS AND CONDITIONS
<br /> , 1. Relatlonshfp Belween Enllnee�end Cllelll.Engineer shall serve as ClienYs professional engineering consultant in those phases of the Project to which this Agreement applies.The relationship is that ot a
<br /> , buye�and seller of professional services and it is understood that the parties have not entered into any joint venture or partnership with the other.Engineer shall not be considered to be the agent of Client.
<br /> 2. Responsibilily of the Engll198�.Engineer will render engineering services in accordance with generally accepted and currently recognized engineering practices and pnnciples.Engineer makes no other
<br /> warranty,either express or implied,with respect to its services.Notwithstanding anything to the contrary which may be contained in this Agreement or any other material incorporated herein by reference,or in
<br /> any agreement belween Client and any other party concerning the Pro�ect,Engineer shall not have control or be in charge of and shall not be responsible for the means,methods,techniques,sequences,or
<br /> procedures of construction,or the safety,safety precautions,or programs of Client,the construction contractor,other contractors,or subcontractors of others pertorming any of the work or providing any of the
<br /> services on the Project.Nor shall Engineer be responsible for the acts or omissions of Client,or tor the failure of Client,any architect,engineer,consultant,coniractor,or subcontractor of others to carry out
<br /> their respective responsibilities in accordance with the Project documents,this Agreement,or any other agreement concerning the Project.Any provision which purports to amend this provision shall be without
<br /> effect unless it conta�ns a reference that the content of this provision is expressly amended for the purposes described in such amendment and is signed by Engineer.
<br /> 3. PefI111e11L If payment is by chec ,k payment should be messengered or mailed by most expeditious method to:MWH Energy b Infrastructure,Inc.,175 West Jackson Boulevard,Chicago,Illinois 60604•2814
<br /> U.S.A.If payment is by wire transfer,payment should be wired to:The Northern Trust Company,50 South LaSalle Street,Chicago,Illinois 60675 U.S.A.Bank Routing Number-071-000-152,for the account
<br /> of MWH Energy&Infrastructure,Inc.Account Number-301-80764.
<br /> 4. SuSp80s1011 et SeMces.Client may,at any time,by written order to Engineer(Suspension of Services Order)require Engineer to stop all,or any part,of the services required by this Agreement.Upon
<br /> receipt of such an order,Engineer shall immediately comply with its terms and take all reasonable steps to minimize the occurrence of costs aliceable to the services cwered by the order.Client,however,
<br /> shall pay all costs associated with suspension,including all costs necessary to maintain continuiry and the staff required to resume the services upon expiration of the suspension of services order.Engineer
<br /> will not be obligated to provide the same personnel employed prior to suspension when the services are resumed,in the event the period of any suspension exceeds thirty(30)days.Client will reimburse
<br /> Engineer for the casts of such suspension and remobilization.
<br /> 5. iBnnin8tl00.This Agreement may be terminated by either party upon thirty(30)days'written noGce in the event of substantial failure by the other party to perform in accordance with the tertns hereof
<br /> ihrough no fault of the terminating party.This Agreement may be terminated by Client,under the same terms,whenever Client shall determine that termination is in its best interests.Cast of termination,
<br /> including salaries,overhead,and fee,incurred by Engineer e�ther before or after the termination date shall be reimbursed by Client.
<br /> 6. DOGumBMi Prop01�q19t CIIOIIt.Drawings,specifications,repoRs,and any other dceuments prepared by Engineer in connection with any or all of the services fumished hereunder shall be the property of
<br /> Client.Engineer shali have the right to retain copies of all documents and drawings for its tiles.
<br /> 7. ReUse Of DoCumellts.All documents,including drawings and specifications fumished by Engineer pursuant to this Agreement,are intended for use by Client on the Project only.They should not be used by
<br /> Client or others on extensions of the Project or any other project.Any reuse,without written verification or adaptation by Engineer,shall be at ClienPs sole nsk,and Client shall indemnify and hold harmless
<br /> Engineer from all claims,damages,losses,and expenses,including attorney's fees,arising out of or resulting iherefrom.My computer disks provided by Engineer to Client may develop errors because oi
<br /> hardware and soflware canbinations differing from those used by Engineer in preparing the disks,other failure of ClienPs or third parties'hardware,or the limited life expectancy and integrity of the disk and its
<br /> contents for which Engineer bears no responsibility.
<br /> 8. CompllanGe wltll LeMls.To the extent they apply to its employees or its services,Engineer shall comply with all applicable United States,state,territorial,and canmonwealth laws,including ordinances of
<br /> any political subdivisions or agencies of the United States,any state,territory,or commonwealth thereof.
<br /> 9. IlldemnfikeUsR.(i.) With respect to MWH's physical acls,exclusive of the indemniry provided in Paragraph 7.(h)(ii.)below,MWH shall,up to the amount of$1,000,000,indemnify and save Client harmless
<br /> from,all expenses,claims or liability for injury to any person,including death,and also for any property damage,which in any manner are connected with or arise from any negligent action or omission by
<br /> MWH's employees while at the plant site;provided the Consultant shall not be required to indemnify Client for such injury or damage caused by Client negligence. (ii.)With respect to MWH's professional
<br /> acts,exclusive of the indemnity prwided in Paragraph 7(h)(i.)above,MWH shali indemnity and hold harmless Client up to the amount of the compensation paid by Client to MWH for its services rendered
<br /> under this Agreement(excluding costs and subconiract expenses)from ClienPs loss or expense,including reasonable attomeys'tees,for claims for personai injury(including death)or property damage
<br /> arising out of the sole negligent act,error or omission of MWH.
<br /> Client shali indemnify and hold harmless MWH without limitation as to amount from MWH's loss or expense,including reasonable attomeys'fees,for claims for personal injuries(including death)or property
<br /> damage arising out of(a)the sole negligent act,error or omission of Client,or(b)as a result of ioss or expense in excess of ConsultanPs limited obiigations or indemnification hereunder,whichever party is
<br /> negligent or caused an error or omission,solely or jointly.Subject to MWH's limited oWigation of indemnification hereunder,in the event of joint or concurrent negligence of MWH and Client,each shall bear
<br /> that porlion of the Ioss or expense that its share ot the jant or concurrent negligence bears to ihe total negligence(including that of third parties)which caused the personal injury or property damage.
<br /> MWH shall not be liable for special,incidental or consequential damages,including but not limited to loss of profits,revenue,use of capital,claims of customers,cost of purchased or replacement power,or
<br /> for any other loss of any nature,whether based on contract,tort,negligence,strict liability or otherwise,by reason of the services rendered under this Agreement.
<br /> The trustees,directors,officers,employees,agents and consultants of the respective parties are deemed to be included within the term"MWH'and'ClienP for purposes of this subsection.
<br /> 10. NeieMOUS Su6S1�116es In the event the performance of services under this Agreement by Engineer results in the discovery,Iceation,distuibance,release,disposal or escape of hazardous or contaminating
<br /> substances on,from or through the premises that constitute the project site,Client wili deiend,indemnify and hold Engineer,its directors,officers,employees and subcontractors harmless from and against
<br /> any and all resulting claims,damages,losses and expenses including direct and indirect or consequential damages and attomeys'fees.This indemnification shall be in excess of the indemnification limits
<br /> provided in Clause 9 of these General Terrns and Conditions.
<br /> 11. Mdflfan8188Mces.Engineer shall supply such additional services as requested by Client and agreed to by Engineer in connection with the Project.Separate propasals shall be submitted by Engineer for
<br /> fumishing these additional services.Compensation for such additional services shall be negotiated by ihe parties and included in this Agreement by a written Amendment.
<br /> 12. Ettlmffie5 et TIIRe 811�COSL The parties recognize that any estimated period of time of performance of the services hereunder is contingent upon factors beyond the reasonable contrd ot either party.Both
<br /> parties will take all reasonable steps to adhere to the time schedule.In no event and under no circumstances is any estimate af time or cost to be considered a guarantee.
<br /> 13. 60Verllflts Lsw.This Agreement shall be govemed by and construed in accordance with the laws of the State of Illinas.
<br /> 14. Le081 Pf�CeM111/s.In the event Engineer's employees are at any time required by Client to provide testimony,answer interrogatories,or othenvise provide information("lestimony�in preparation for or at a
<br /> trial,hearing,proceeding,or inquiry("proceeding'�arising out of the services that are the subject of this Agreement,where Engineer is not a party to such proceeding,Client will compensate Engineer(or its
<br /> services pursuant to Engineer's Schedule of Charges then in effect and reimburse Engineer for all related direct costs incurred in connection with prwiding such services.This provision shall be of no effect if
<br /> the parties have agreed in a separate agreement or an amendment to this Agreement to terms which specifically supersede this provision,nor shall this provision apply in the event Client engages Engineer to
<br /> provide expert testimony or litigation support,which services shall be the subject oi a separate agreement or an amendment to this Agreement.
<br /> 15. SuCcest9rs e11d ASslgos.The terms of this Agreement shall be binding upon and inure to the bene(it of the parties and their respective successors and assigns,prrnided,however,that neither party shall
<br /> assign this Agreement in whole or in part without the prior written approval of the other.
<br /> 16. Wehro�N COIItfeCt BroeCh.The waiver of one party of any breach of ihis Agreement or the failure of o�e party to enforce at any Gme,or tor any period of time,any of the provisions hereof,shall be limited
<br /> to the paRicular instance,shali not operate or be deemed to waive any future breaches of this Agreement,and shall not be construed to be a waiver of any provision,except for the particular instance.
<br /> ��. Emiro tlnderstandini ot A'raemem. This Agreement represents and incorporates the entire understanding of the parties hereto, and each party acknowledges that there are no warranties,
<br /> representations,covenants,or understandings of any kind,matter,or description whatsoever,made by either party to ihe other except as expressly set iorth here�n.Client and Engineer hereby agree that any
<br /> purchase orders,invoices,confirmations,acknowledgments,or other similar documents executed or delivered with respect to the subject matter hereof that conflict with or alter the terms and conditions of this
<br /> Agreement shall be null,vad,and without effect to the extent they conflict with or alter the terms and conditions of this Agreement.
<br /> 18. AmBlldm811t.This Agreement shall not be subject to amendment unless another instrument is executed by duly authorized representatives of each oi ihe paRies and entitled"Amendment to AgreemenL"
<br /> 19. SeYereblllry W Im181M1 PnNSI�11s.If any provisions of the Agreement shall be held to contravene or be invalid under the laws of any particular state,country,or jurisdiction where used,such contravention
<br /> shall not invalidate the entire Agreement,but it shall be construed as if not containing the particular prrnision or provisions held to be invatid in the particular state,country,or jurisdiction and the rights or
<br /> obligations oi the parties hereto shall be construed and enforced accordingly.
<br /> 20. Fe�Ce M819U�9.Neither Client nor Engineer shall be liable for any fault or delay caused by any contlngency beyond their control including,but not limited to,acts of God,wars,strikes,walkouts,tires,natural
<br /> calamities,or demands or requirements of govemmental agencies.
<br /> 21. Subc011ifeCls.Engineer may subcontract portions of the services,but each subcontractor,except for Engineer's affiliates,must be approved by Client in writing.
<br /> 22. IICCeSs e11A P9�IIItS.Client shall arrange for Engineer to enter upon public and private property and shall obtain all necessary approvals and permits required from all govemmental authorities having
<br /> jurisdiction over the Project.Client shall pay costs(including Engineer's employee salaries,overhead,and fee)incident to any effort by Engineer toward assisting Client in such access,permiGs,or approvals,if
<br /> Engineer performs such services.
<br /> 23. DeSlgneU011 ot AUthOflied RBproSelltetlYeS.Each party shall designate one or more persons to act with authority on its behalf in respect to appropriate aspects of the Pro�ect.The persons designated
<br /> shall review and respond promptly to all communications received from the other party.
<br /> 24. NOtltet.My notice or designation required to be given by either party hereto shall be in writing,and unless receipt of such notice is expressly required by the terms hereof,shall be deemed to be effectively
<br /> served within thirty-six(36)hours of its confirmed transmittal by facsimile to the business facsimile number of the third party to whom such notice is directed or when deposited in the mail with sufficient first-
<br /> class postage affixed,and addressed to the parry to whan such notice is directed at such party's place of business or such other facsimile number or address as ather party shall hereafler furnish to the other
<br /> party by written notice as herein provided. 021001 MWH E81 STAND 02
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