THE ENGINEER UNLESS PRIOR
WRITTEN CONSENT IS OBTAINED FROM THE ENGINEER, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD.
13.3
TERM OF OBLIGATION.
THE CONFIDENTIALITY OBLIGATIONS OF THE PARTIES
PURSUANT TO THIS ARTICLE 13 SHALL SURVIVE FOR A PERIOD FIVE (5) YEARS FOLLOWING
THE LATER TO OCCUR OF TERMINATION OF THIS AGREEMENT OR COMPLETION OF THE PLANT.
ARTICLE 14
MISCELLANEOUS
14.1
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF MINNESOTA,
WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
14.2
SEVERABILITY.
IF ANY PROVISION OR ANY PART OF A PROVISION OF THE
AGREEMENT SHALL BE FINALLY DETERMINED TO BE SUPERSEDED, INVALID, ILLEGAL, OR
OTHERWISE UNENFORCEABLE PURSUANT TO ANY APPLICABLE LEGAL REQUIREMENTS, SUCH
DETERMINATION SHALL NOT IMPAIR OR OTHERWISE AFFECT THE VALIDITY, LEGALITY, OR
ENFORCEABILITY OF THE REMAINING PROVISION OR PARTS OF THE PROVISION OF THE
AGREEMENT, WHICH SHALL REMAIN IN FULL FORCE AND EFFECT AS IF THE UNENFORCEABLE
PROVISION OR PART WERE DELETED.
14.3
NO WAIVER.
THE FAILURE OF EITHER ENGINEER OR CLIENT TO INSIST, IN
ANY ONE OR MORE INSTANCES, ON THE PERFORMANCE OF ANY OF THE OBLIGATIONS REQUIRED
BY THE OTHER UNDER THIS AGREEMENT SHALL NOT BE CONSTRUED AS A WAIVER OR
RELINQUISHMENT OF SUCH OBLIGATION OR RIGHT WITH RESPECT TO FUTURE PERFORMANCE.
14.4
CAPTIONS AND HEADINGS.
THE TABLE OF CONTENTS AND THE HEADINGS USED
IN THIS AGREEMENT ARE FOR EASE OF REFERENCE ONLY AND SHALL NOT IN ANY WAY BE
CONSTRUED TO LIMIT, DEFINE, EXTEND, DESCRIBE, ALTER, OR OTHERWISE AFFECT THE
SCOPE OR THE MEANING OF ANY PROVISION OF THIS AGREEMENT.
14.5
Engineer's Accounting Records.
Records of Engineer's personnel
time, reimbursable expenses, and accounts between parties shall be maintained on
a generally recognized accounting basis.
14.6
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF WHICH
TOGETHER SHALL BE DEEMED ONE AND THE SAME AGREEMENT, AND MAY BE EXECUTED AND
DELIVERED BY FACSIMILE SIGNATURE, WHICH SHALL BE CONSIDERED AN ORIGINAL.
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment and have been filed with the United States Securities and
Exchange Commission.
13
14.7
SURVIVAL.
NOTWITHSTANDING ANY PROVISIONS HEREIN TO THE CONTRARY,
THE WORK PRODUCT PROVISIONS SET FORTH IN ARTICLE 8 AND THE INDEMNITY OBLIGATIONS
SET FORTH HEREIN SHALL SURVIVE (IN FULL FORCE) THE EXPIRATION OR TERMINATION OF
THIS AGREEMENT, AND SHALL CONTINUE TO APPLY TO THE PARTIES TO THIS AGREEMENT
EVEN AFTER TERMINATION OF THIS AGREEMENT OR THE TRANSFER OF SUCH PARTY'S
INTEREST IN THIS AGREEMENT.
14.8
NO PRIVITY WITH CLIENT'S CONTRACTORS.
NOTHING IN THIS AGREEMENT IS
INTENDED OR DEEMED TO CREATE ANY LEGAL OR CONTRACTUAL RELATIONSHIP BETWEEN
ENGINEER AND ANY CLIENT CONTRACTOR OR SUBCONTRACTOR RETAINED TO PERFORM THE
PHASE I AND PHASE II SITE WORK REQUIRED OF CLIENT PRIOR TO THE ISSUANCE OF A
NOTICE TO PROCEED PURSUANT TO THE DESIGN-BUILD AGREEMENT.
14.9
AMENDMENTS.
THIS AGREEMENT MAY NOT BE CHANGED, ALTERED, OR