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<br />cannot guarantee the accuracy of the ENGINEER's opinions of cost. In recognition of that fact,
<br />the OWNER waives any claim against the ENGINEER relative to the accuracy of the
<br />ENGINEER's opinion of probable construction costs, except to the extent the ENGINEER does
<br />not adhere to professional standards for comparable work in Colorado.
<br />
<br />The OWNER recognizes that special risks occur whenever engineering or related disciplines
<br />are applied to identify subsurface conditions. Even a comprehensive sampling and testing
<br />program, implemented with the appropriate equipment and experienced personnel under the
<br />direction of a trained professional who functions in accordance with the professional standard of
<br />practice in Colorado may fail to detect certain conditions, because they are hidden and,
<br />therefore, cannot be considered in development of a subsurface exploration program. For
<br />similar reasons, actual environmental, geologic, and geotechnical conditions that the
<br />ENGINEER may properly infer to exist between sampling points may differ significantly from
<br />those that actually exist.
<br />
<br />Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by
<br />law, the total liability, in the aggregate, of ENGINEER and ENGINEER's officers, directors,
<br />partners, employees, agents, and ENGINEER's Consultants, and any of them to OWNER and
<br />anyone claiming by, through, or under OWNER for any and all claims, losses, costs or
<br />damages whatsoever arising out of, resulting from, or in any way related to the Project, with the
<br />exception of Reservoir Design and construction administration work to come under separate
<br />contracts, or the Agreement from any cause or causes, including but not limited to the
<br />negligence, professional errors or omissions, strict liability or breach of contract, or warranty
<br />express or implied of ENGINEER or ENGINEER's officers, directors, partners. employees,
<br />agents, or ENGINEER's Consultants, or any of them shall not exceed the total amount of
<br />$1,000,000 or ENGINEER's total fee for services rendered pursuant to this Agreement,
<br />whichever is greater.
<br />
<br />Dispute Resolution. Should a dispute arise regarding this Agreement or performance of the
<br />obligations herein, the parties agree to seek first to work out the dispute amicably.
<br />
<br />Aqreement Bindinq. This Agreement may not be assigned by either party without first obtaining
<br />the written consent of the other, which each party may approve in that party's sole discretion.
<br />
<br />Severability of Provisions. Should any provision herein be found or deemed to be invalid, this
<br />Agreement shall be construed as not containing such provision, and all other provisions which
<br />are otherwise lawful shall remain in full force and effect, and to this end the provisions of this
<br />Agreement are declared to be severable.
<br />
<br />Construction Generally. This Agreement shall be interpreted and construed in a fair manner
<br />without regard to the party which prepared the instrument, the relative bargaining powers of the
<br />parties or the domicile of any party.
<br />
<br />Other Documents. Each of the parties agrees to sign such other and further documents as may
<br />be appropriate to carry out the intentions expressed in this Agreement.
<br />
<br />Headinqs. The division of this Agreement into articles, sections, paragraphs and clauses and
<br />the insertion of headings is for reference only and shall not affect the construction or
<br />
<br />G:\OocumentsIWwe Wei\2002\991-077\Conlract\ContracI02- WWE LPWCD revision 5-6-02.doc
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<br />Agreement Between Owner and Engineer
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<br />Page 4
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