Terms & Conditions 1123 - Cumming Group

Terms and Conditions of Cumming Management Group, Inc. as of November 8th, 2023

Exhibit A

Applicability: These terms and conditions (“Terms”) are the only terms which govern the services (“Services”) to be provided by Cumming Management Group, Inc. (“Consultant”) to the client (“Client”) on the project (“Project”), each as identified in the accompanying proposal (“Proposal”). The Terms and Proposal are collectively referred to herein as the “Agreement”. These Terms shall prevail overany of Client’s general terms and conditions, regardless of whether or when Client submitted such terms. Performance of the Services does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms. Client will be deemed to have accepted these Terms upon the earlier of Client’s acceptance of the Proposal to which these Terms are attached or Consultant’s commencement of the Services.
Limitation of Liability: In no event shall Consultant’s aggregate liability exceed the amount of the proceeds received from insurance maintained by the Consultant under the Agreement regardless whether the theory of liability or cause of action is based on contract, tort, warranty, strict liability, unjust enrichment, indemnification, or otherwise. No principal, partner, member, director, officer, agent, servant, employee, or consultant of Consultant shall have any personal liability relating to the subject matter of this Agreement.
Capacity of Consultant: Consultant is at all times acting as an advisory consultant to Client and is not acting in the capacity of a design professional or contractor. Consultant shall have no liability for any advice, act, omission, or default of any third party in connection with the Project, or for any defect in the design or construction of the Project, or any materials incorporated therein, or for the means and methods of construction. Client acknowledges and agreesthat Consultant shall not have control over or be responsible formaintaining safe conditions or enforcing or coordinating safety programs at the construction site. Consultant shall have no responsibility for and shall not be liable if the Project is not completed on budget or in a timely manner. Consultant’s evaluations of the budget and estimates prepared or reviewed by Consultant represent Consultant’s judgment as an advisory consultant familiar with the construction industry and do not constitute guarantees or warranties that bids or negotiated prices may not vary. Consultant may rely on information provided by Client and Client’s design team members (e.g., architect, engineers, consultants).
Insurance: Upon request, Consultant shall deliver Certificates of Insurance reflecting the standard coverages carried by Consultant as set forth on Schedule 1 to these Terms. Client shall maintain builders risk property insurance in the amount of full replacement value covering the Project including existing property and any additions or renovations thereto. Client shall cause Consultant and its principals, officers, directors, members, and employees to be named as additional insureds on the Commercial General Liability policies carried by Client, and those carried by Client’s contractors and designers, and such policies shall be primary insurance for all claims under such policies; with Consultant’s insurance being non-contributing and in excess thereof. Client and Consultant each hereby waive their entire right of recovery against each other for injury, loss, or damage to the extent covered by insurance proceeds received by the damaged party under the insurance coverages specified in these Terms. All policies required hereunder shall provide that the respective carrier(s) waives all rights of subrogation against additional insureds with respect to losses payable under such policies.
Indemnity: To the fullest extent of the law, Client shall indemnify, hold harmless, and defend Consultant and its officers, directors, affiliates, employees, consultants, and agents from and against any and all liability, loss, cost, damage, claim, and expense of whatsoever kind or nature (including, without limitation, attorneys’ fees, investigation costs, and court costs) resulting from: (i) injuries to persons or property occurring on the property where the Project is located or in connection with the development, construction, or operation of the Project from any cause whatsoever; or (ii) the development, construction,operation, management, or ownership of the Project to the extent caused by the negligent acts or omissions of the Client, or any entity for which it is legally responsible.; provided, however, that the foregoing indemnification shall not apply to the extent of any liability, demand, cost and expense, loss, or damage that results directly from any negligent acts or omissions by Consultant. Client shall also require its contractors and consultants to indemnify, hold harmless, and defend Consultant from claims and liabilities arising from or relating to services or work furnished by Client’s contractors or consultants.
Compensation: In consideration of the performance by Consultant of the Services in connection with the Project, Client agrees to pay Consultant the fee set forth in the Proposal (or the portion earned) within thirty (30) days of submission of Consultant’s invoice. In addition, Client shall reimburse Consultant forreasonable expenses incurred in performance of the Services, including but not limited to travel expenses, office expenses, and other reasonable expenses incurred in Consultant’s performance of the Services. Client shall pay such reimbursable expenses within thirty (30) days following Client’s receipt of an invoice containing such expenses. Any amountsdue to Consultant from Client underthis Agreement shall, after a thirty (30) day grace period, bear interest from the due date at the maximum rate allowed by applicable law. One year after the effective date of the Agreement, and annually thereafter, Consultant’s rates will increase by the greater of (i) the change in percentage during the prior twelve (12) month period in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), or (ii) five percent (5%). For any payment not received on the due date set forth in this Paragraph 6, the Consultant, upon notification to the Client, may immediately suspend Services in whole or in part.
Change Requests: Client or Consultant may request a change to any portion of the Services at any time by submitting such request in writing to the other party (“Change Request”). Within a reasonable time after receipt of a Change Request from Client, Consultant shall evaluate the impact of the Change Request and provide Client with a written statement setting forth its estimate of the cost of the change. Within a reasonable time after receipt of a Change Request from Consultant, Client shall provide a written acceptance or rejection of the Change Request. Consultant’s fee for the Services shall be adjusted to the extent of any increase in Services, at a fixed amount as agreed by the parties, or if the parties do not agree to a fixed amount, on a time and materials (T&M) basis at the rates set forth in Ex. B, or if no rates are set forth, at rates agreed by the parties. Consultant shall not be required to proceed with a change in services absent agreement by the parties in writing as to the additional compensation to be paid.
Termination: Consultant shall have the right to terminate this Agreement upon seven (7) days’ written notice in the event that Client is in material breach of its obligations hereunder. In the event the Agreement is terminated by the Client for any reason other than the material breach of the Agreement by RGM Kramer, Inc. prior to the completion of the Services, then, in addition to the reimbursable expenses detailed herein, Client shall pay Consultant for Services rendered through the date of termination..
Instruments of Service: All drawings, specifications, technical data, and other information furnished to Client by Consultant, or developed as instruments of service by Consultant or others in connection with the Services (“Work Product”), are and shall remain the sole property of Consultant, and Consultant shall retain all intellectual property rights thereto. Such Work Product may not be copiedor otherwise reproduced or used in any way except in connection with the Services or disclosed to third parties or used in any mannerdetrimental to the interests of Consultant. Client shall have a non- assignable and royalty-free license to utilize the Work Product solely with respect to the Project.
General Provisions:

1. The Agreement constitutes the entire agreement between the parties hereto regardingthe subject matter hereof, and supersedes all prior agreements, whether written ororal.
2. No change, modification, or amendment shall be made to the Agreement unlessset forthin writing and signed by the parties hereto.
3. Time is of the essence under this Agreement. The Compensation to be received byConsultant is based upon an agreed schedule with the Client. To the extent that there are any material changes to the schedule, Consultant shall be entitled to an equitable adjustment of its compensation. Consultant shall not be responsible for delays in the performance of its Services caused by third parties.
4. Client agrees not to, directly or indirectly, hire or engage, or arrange for or attempt to arrange for or persuade any other person to hire or engage, any employee of Consultant while such employee is employed by Consultant forthe duration of the Project and for a period of one (1) year after the termination of the Agreement. In addition to all other remedies, including injunctive relief, available to Consultant for Client’s breach of this provision, because the parties acknowledge the difficulty of calculating actual damages for breach of this provision, Client agrees to pay Consultant, as liquidated damages and not as a penalty, the sum equal to One Hundred Percent (100%) of each employee’s yearly compensation foremployeeshired directly or indirectly by Client or any other person in violation of this provision.
5. All express representations, warranties, indemnifications, and limits of liability included in the Agreement will survive its completion or termination for any reason. If any provision of the Agreement shall be held invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. The remaining provisions shall remain in full force and effect, as if the unenforceable provision had been deleted. The parties agree to replace any omitted provision with a valid provision that comes as close as possible to the intent of the omitted provision.
6. The Agreement shall be governed by and construed under the laws of the state in which the Project is located, without regard to its conflicts of laws principles.
7. Consultant and Client will first attempt to resolve disputes or disagreements through discussions between their respective representatives, who shall meet upon the request of either party as soon as conveniently possible to attempt to resolve such dispute ordisagreement. If after meeting, the representatives determine that the dispute or disagreement cannot be resolved on terms satisfactory to both parties, the parties shall submit the dispute or disagreement to non-binding mediation. The mediation shall be conducted by a mutually agreeable impartial mediator, or if the parties cannot so agree, a mediator designated by the American Arbitration Association (“AAA”) pursuant to its Construction Industry Mediation Rules. If a dispute has not been resolved in accordance with the procedures set forth above, such disputes shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the AAA then in effect, unless the parties mutually agree otherwise. The award of the arbitrator(s) shall be final and binding upon the parties without the right of appeal to the courts. Judgment may be entered upon it in accordance with applicable law by any court having jurisdiction thereof.

SCHEDULE 1 – INSURANCE COVERAGES

The Consultant shall maintain the following insurance coverages:

Worker’s Compensation and Employer’s Liability Insurance. Statutory Worker’s Compensation Acts and Employer’s Liability Insurance with a limit of Five Hundred Thousand Dollars ($500,000) per accident and, for bodily injury by disease, Five Hundred Thousand Dollars ($500,000) per employee, and Five Hundred Thousand Dollars ($500,000) policy limit forbodily injury by disease..
Commercial General Liability Insurance. Coverage of One Million Dollars ($1,000,000) per occurrence for bodily injury or property damage with an aggregate products/completed operations limit of Two Million Dollars ($2,000,000) with a separate aggregate limit for the Project. The products/completed operations coverage shall be maintained for three (3) years after completion of the Consultant’s services. The policy shall be endorsed to include the Client and its officers, directors, and employees as additional insureds using ISO Forms 20 10 and 20 37.
Automobile Liability Insurance. Coverage of One Million Dollars ($1,000,000) combined single limit for owned, hired, and non-owned vehicles. The policy shall be endorsed to include the Owner and its officers, directors, and employees as additional insureds.
Excess Umbrella Liability Insurance. Coverage in excess of the underlying limits for Employer’s Liability, Commercial General Liability, and Automobile Liability coverages with a limit of Five Million Dollars ($5,000,000).
Professional Liability Insurance. Coverage on a claims-made basis of Two Million Dollars ($2,000,000) per claim and aggregate for claims arising out of performance of professional services caused by a negligent error, omission, or act for which the Consultant is legally liable.

All insurance required to be maintained by Consultant shall be primary to any insurance carried by the Client, but shall remain excess and non-contributing to any coverages maintained by the Client’s designers and contractors. Consultant shall furnish certificates of insurance evidencing such coverages including a provision that such insurance shall not be cancelled without at least thirty (30) days prior notice (ten (10) days for nonpayment). Policies shall contain express waivers of subrogation to benefit additional insureds.