Professional Services Contract

The Client, as shown on the provided QUOTE, Authorizes Anderson Engineering Co., Inc. (“ENGINEER”), a Utah Corporation, to provide SERVICES described in the QUOTE subject to the terms and conditions set forth below.

ENGINEER’s SERVICES under this Agreement set forth or within the Scope of Work attached to this Agreement (“SERVICES”).

ENGINEER shall be compensated as described in the QUOTE.


a) Invoices. ENGINEER shall prepare invoices in accordance with its standard invoicing practices and submit the invoices to CLIENT at the end of the first calendar month following the effective date of this Agreement and at the end of each calendar month thereafter. Payment of invoices is due upon receipt of the invoice by CLIENT.
b) Late Payment/Collection. If CLIENT fails to make any payment due to ENGINEER for SERVICES, ADDITIONAL SERVICES, and REIMBURSABLE EXPENSES within 30 days after receipt of ENGINEER’s invoice, then (1) the amounts due ENGINEER will be increased at the rate of 1.5% per month (or maximum rate of interest permitted by law, if less) from said thirtieth day, and (2) in addition ENGINEER may, in its sole discretion and without notice to CLIENT, suspend SERVICES under this Agreement until ENGINEER has been paid in full all amounts due and other related charges. ENGINEER further reserves the right to withhold from CLIENT any instruments of ENGINEER’s service or copies thereof, developed for CLIENT under this Agreement pending payment on CLIENT’s outstanding invoices. CLIENT waives any and all claims against ENGINEER for any such suspension. If it becomes necessary to refer the account to a collection agency CLIENT agree to pay all cost, not limited to, attorney’s fees, court cost, arbitration cost, cost of document preparation and collection agency fees, whether incurred by filing a lawsuit, arbitration or otherwise.
c) Estimates of Compensation. The portion of compensation amount billed monthly for ENGINEER’s SERVICES will be upon ENGINEER’s opinion given of then existing information and circumstances and are not binding upon ENGINEER. Actual compensation or fee for SERVICES may vary substantially depending upon conditions beyond ENGINEER’s knowledge or control.
d) Invoice Disputes. If the CLIENT disputes an invoice, either as to the amount or entitlement, then CLIENT shall within thirty (30) days of the date of invoice advise the ENGINEER in writing of the specific basis for doing so, and may withhold only that portion so disputed, and must pay the undisputed portion. Interest will begin to accrue on the disputed amount immediately after the dispute is resolved.
e) Notice of Preconstruction Lien. ENGINEER may file a Preliminary Notice with the State Construction Registry of Utah within 20 days of acceptance by CLIENT of this contract.


a) This Agreement may be terminated by either party upon written notice should the other party fail substantially to perform in accordance with this Agreement through no fault of the party initiating the termination. This Agreement may be terminated by the CLIENT upon seven (7) days written notice to ENGINEER in the event that the PROJECT is permanently abandoned. If this Agreement is terminated through no fault of the ENGINEER, CLIENT shall pay ENGINEER for SERVICES performed, ADDITIONAL SERVICES performed, and REIMBURSABLE EXPENSES incurred in accordance with this Agreement and, upon request, a Termination Adjustment equaling fifteen percent (15%) of the estimated fee remaining to be earned at the time of termination to account for ENGINEER’s rescheduling adjustments, reassignment or personnel and related costs incurred due to termination. If this Agreement is terminated by CLIENT for cause, CLIENT shall pay ENGINEER for SERVICES performed, ADDITIONAL SERVICES performed, and REIMBURSABLE EXPENSES incurred in accordance with this Agreement.


This agreement is to be governed by the law of the State of Utah and shall be enforceable in the County of Utah.
a) The standard of care for all professional engineering and related services performed or furnished by ENGINEER under this agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Except as stated in the preceding sentence, ENGINEER otherwise makes no warranties, express or implied, under this Agreement or otherwise, in connection with any SERVICES performed or furnished by ENGINEER. Subject to the foregoing standard of care, ENGINEER and its consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards.
b) ENGINEER and ENGINEER’s consultants shall have the right to rely on any and all information supplied to ENGINEER or ENGINEER’s consultants by or through the CLIENT, and shall not have a duty to verify the accuracy or such information unless otherwise expressly agreed herein. CLIENT shall hold harmless, indemnify and defend ENGINEER and ENGINEER’s consultants, employees and agents from and against any claims and/or liability related, directly or indirectly, to ENGINEER’s or ENGINEER’s consultant’s use of or reliance upon any such information.
c) ENGINEER shall not at any time supervise, direct, control, or have authority over any Constructor’s work, nor shall ENGINEER have authority over or be responsible for the means, methods, techniques, sequences, or procedures of construction selected or used by any Constructor, or the safety precautions and programs incident thereto, for security or safety at the PROJECT site, not for any failure of a Constructor to comply with laws and regulations applicable to such Constructor’s furnishing and performing of its work. ENGINEER shall not be responsible for acts of omissions of any Constructor.
d) ENGINEER neither guarantees the performance of any Constructor nor assumes responsibility for any Constructor’s failure to furnish and perform its work.
e) ENGINEER’s opinions (if any) of probable construction cost are to be made on the basis of the ENGINEER’s experience, qualifications, and general familiarity with the construction industry. However, because ENGINEER has no control over the cost of labor, materials, equipment, or SERVICES furnished by others, or over contractors’ methods of determining prices, or over competitive bidding or market conditions, ENGINEER cannot and does not guarantee that proposals, bids, or actual construction cost will not vary from opinions of probable construction cost prepared by ENGINEER. If CLIENT requires greater assurance as to probable construction cost, the CLIENT agrees to obtain independent cost estimate.
f) ENGINEER shall not be responsible for any decision made regarding the construction contract requirements, or any application, interpretation, clarification, or modification of the construction contract documents other than those made by ENGINEER or its consultants.


a) All documents prepared or furnished by ENGINEER are instruments of service, and ENGINEER retains an ownership and property interest (including copyright and the right of reuse) in such documents whether or not the PROJECT is completed. CLIENT shall have a limited license to use the documents on the PROJECTs, extensions of the PROJECT, and for related use of the CLIENT, subject to receipt by ENGINEER of full payment due and owing for all SERVICES related to preparation of the documents and subject to the following limitations:
i) CLIENT acknowledges that such documents are not intended or represented to be suitable for use on the PROJECT unless completed by the ENGINEER, or for use or reuse by CLIENT or others on extensions of the PROJECT, or on any other PROJECT, without written verification of adaptation by ENGINEER;
ii) Any such use or reuse, or any modification of the documents, without the written verification, completion, or adaptation by ENGINEER, as appropriate for the specific purpose intended, will be at the CLIENT’s sole risk and without liability or legal exposure to ENGINEER or to its offices, directors, members, partners, agents, employees, and consultants;
iii) CLIENT shall indemnify and hold harmless ENGINEER and its officers, directors, members, partners, agents, employees, and consultants from all claims, damages, losses, and expenses including attorneys’ fees, arising out of or resulting from any use, reuse, or modification of the documents without written verification, completion, or adaptation by ENGINEER; and
iv) Such limited license to the CLIENT shall not create any rights in third parties.
b) CLIENT and ENGINEER may transmit, and shall accept, PROJECT-related correspondence documents, text, data, drawings, information, and graphics, in electronic media or digital format, either directly or through access to a PROJECT website, in accordance with a mutually agreeable protocol.
c) All PROJECT-related correspondence, documents, text, data, drawings, information, calculations, graphics, and otherwise instruments of SERVICES rendered to the CLIENT are the ENGINEER’s proprietary information, whether patent-able or not. CLIENT shall not claim patent rights, copyrights, or other intellectual property rights for SERVICES rendered, developed, or delivered by the ENGINEER.


a) ENGINEER will maintain insurance coverage for Worker’s Compensation, General Liability, Professional Liability, and Automobile Liability and will provide certifications of insurance to the CLIENT upon request.
b) To the fullest extent permitted by law, CLIENT (1) waives against the ENGINEER and the ENGINEER’s employees, officers, directors, members, agents, insurers, partners, consultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to this Agreement or the PROJECT, and (2) Agree that ENGINEER’s total liability to the CLIENT under this Agreement shall be limited to $25,000 OR the total amount of compensation received by ENGINEER from CLIENT, whichever is less.


a) CLIENT and ENGINEER acknowledge that ENGINEER’s SERVICES do not include any work related to unknown or undisclosed Constituents of Concern. If ENGINEER or any other party encounters, uncovers, or reveals an unknown or undisclosed Constituent of Concern, then ENGINEER may at its option and without liability for consequential or any other damages, suspend performance of SERVICES on the portion of the PROJECT affected thereby until such portion of the PROJECT is either no longer affected, an amendment to this Agreement is executed, or terminate this Agreement for cause if it is not practical to continue providing SERVICES.


a) CLIENT and ENGINEER agree to negotiate each dispute or late payment (“Issues”) between them in good faith after thirty (30) days. If negotiations are unsuccessful in resolving Issues, then the dispute shall be mediated. If mediation is unsuccessful within thirty (30) days of initiation, then the parties agree that the dispute shall be referred to arbitration for arbitration in accordance with rules under the Federal Arbitration Act. The arbitration shall be conducted in Utah County, Utah. The number of arbitrators shall be one. Each party shall bear its own attorney fees, cost of arbitration shall be split equally between the parties, unless the court or arbitrator decision is in favor of the Engineer in which the Client shall bear the full cost. The arbitrator’s decision shall be final and binding and judgement may be entered thereon. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator’s award, or fails to comply with the arbitrator’s award, the other party is entitled to the costs of suit including reasonable attorney’s fee for having to compel arbitration or defend or enforce the award.


a) Confidential information means any information disclosed by either party to the other party, either directly or indirectly. In writing, orally, or by inspection of tangible objects (including, without limitation documents, samples, equipment, drawings, etc.) that is designated as “Trade Secret”, “Confidential”, “Proprietary” or some similar designation, or is of such a nature of has been disclosed in such a manner that it should be obvious to the receiving party that such is claimed confidential. Confidential information includes without limitation a disclosing party’s trade secrets, know-how, intellectual property, and proprietary information.
b) Non-use and Non-Disclosure. Each party agrees not to use any Confidential Information of the other party for any purposes other than intended as pertains to the SERVICES and PROJECT defined herein. Each party agrees not to disclose Confidential Information to the other party to employees or third parties except those who are required to have the information in order to complete the SERVICES as defined in the PROJECT.


Constructor. Any person or entity (not including the ENGINEER, its employees, agents, representative, and consultants), performing or supporting construction activities related to the PROJECT, including but not limited to contractors, subcontractors, suppliers, CLIENT’s work forces, utility companies, construction managers, testing firms, shippers, and truckers, and the employees, agents, and representatives of any or all of them.
Constituent of Concern. Asbestos, petroleum, radioactive material, polychlorinated biphenyles (PCBs), hazardous waste, and any substance, product, waste, or other material of any nature whatsoever that is or becomes listed, regulated, or addressed pursuant to (a) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601 et seq. (“CERCLA”); (b) the Hazardous Materials Transportation Act, 49 U.S.C. §§5101 et seq.; (c) the Resource Conservation and Recovery Act, 42 U.S.C.
§§6901 et seq. (“RCRA”); (d) the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq.; (e) the Clean Water Act, 33 U.S.C. §§1251 et seq.; (f) the Clean Air Act, 42 U.S.C. §§7401 et seq.; or (g) any other federal, State, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material.


The CLIENT and the ENGINEER have agreed to the foregoing, and the terms and conditions set forth in this agreement, the Effective Date of which is the signed date of the QUOTE.