NS Contract - Summit Engineering Construction Materials Testing Sportsplex & Orange Sr Center

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. , l~ • . Documents. including the»r in electronic farm. for information and rrlerence in connection with the Pruiect. Client shall not use the Design Documents. indudim, those in electronic fixm famished by Summit or itc subronsul[anu un other projects. fix additions to this Project. or for the completion of this Project by otbem_ without the express ++ritten consent al'Summit. .Am reuse without written ce+nsent shall he at Cheers risk and titll Icgal responsihility. Client a_rzes to hold hamtic~ss and mdemmti Summit and it> suhcnnultants from any and all claims. suns. demands. damage<. hahilitics. and .<>`t.. mcludin__ rea,unahle anamc} feel arisin_ liom uch muse. i31 Rrtentivn of Doxuments: Summit ++ill retain. pursuant w iLi usual document rlenuon policy. records rcl:wing to the U ark lix a pencxi ol• three t 1 +ears 1'ollowm~ contpldion of the t6urk I)urin_ this period. recxds will Ex made :rvailablr u, the Client at summits nlliccs~during nomtal business hours upon ,even 1-r da+'s nutic:r. C) Asbntos and Hazardous ytatrrials; I ~nlrss othrnvix spccificalh pro+idrd in the Scapr of Sen ices. Summit and its sul+consultants shall ha+e nu responsihilny for the Jiscovrn. presence. handling. removal. cx dispnsat <,f ashes«K or ha~ardcws <x toxic materials. D) Terminative and Cuspension: This Agreement ma\ he Iertttinated M Tither party upon sr+•en t7- days written notice in the event of substantial lailure by the tuber pang to perfnmt in accordance with the terms hereof. Such termination shall not he cl7cctice if the suhswmial (allure is remedied befixr rxpiratii,n of the :even i71 days Client's I:tilurc to pay m+aiccs whhin [him 13t?! days shall he deemed a substanual 1'ailurr u, prrti~mt In such even[. Summit may tetntinate this Agreement or immediately suspend the performance of services until such failure has bete Lured. The Cliem may terminate this .4sreemem for ds com~rnienc~ u(xm founccn t t a I days written notice. In the event of a tcmtination for com~enience. Client will pay Summit li?r services performed to the termination effective date plus rcasc+nable ternination expenses within ten (10) calendaz days of receipt of a final im•oice. In the event flit project or any phase of it is delayed for reasons beyond Summits control. unbilled work will he invoiced at the standard hourly rates fix the actual number of hours expended. Completed phases wilt he billed at fees quoted herein. E) Disputes: In an zRort to resolve any conFlicts that arise during the design or construction of the Project or after atmpletion of the Project all claims. disputes. or other manors in question beM•ecn the parties to this Agreement that azisc out of or relate to this Agreement or the breach thereof shall be submitted to nonbinding mediation before a neutral third-pam• mediator acceptable to both parties. Such mediation shall be a condition precedent to the commencement of any Icgal action arising out of this Agreement except those legal proceedings related to Client's failure to pay. Thr mediation shall be conducted in accordance with the Construetiem Industn Mediation Rules of the .American Afiitration Association cutTCtttly in c(Teci unless the parties agree otherwise. The• cost of the mediator shall be home equally by the parties. A demand for mediation shall he made within a reasonable time after the claim. dispute or other matter has arisen. In no event shall such demand hr made after the date applicable statutes of limitation or repose would bar a legal or zquiWhle active based nn such claim, dispute or other matter. In the event of litigation relating to [he sufficiency or adequacp of performance of services called for by this Agreement. should Summit obtain a judgment dismissing Clients action or claim or other resolution wherein Swnmit is not required tv ntakr enmpensatinn to Client in excess of its final ollCr made to Client in the mediation, Swtnnit shall be entitled to recover al) cosu incurreJ in the dei'ense of the claim including staff time. court costs expert witness fees, and reasonable attorneys' fees. and other claim related expenses. F) Choice of L,aw/~'rnue: this Attreemcnt shall be go+•emcd by the la++s of the state in which the Summit ofrce identified belo+v is located. aithvut regard to its law of conflict of laws. Am legal action or proceeding shall be vrnucd in the State or I'~ederal Coup nearest the municipality in which Summit's ollice is located. G1 Statute of Limitations/Repose: Causes of actii,n pertaining k7 this A~rte shall br deemed to hace accrued anJ the applicable datutts of limitation and r~ .hall commence u, run at the r:xlicr of either the date of Substantial Complrtiun o Protect or the date Summit'.:rnic~: are ~uhstanti:tll+ tr,mplrtr. It) Assi^ns: Neither the Client nor ~ummu may delegate. as5im+. or transfer his dwirs or interest m this \~_rxmrnt without consent c,f the other parts. e+crpt titunmit may in its discretion utitiie yualdicd suhconsuhants in the prrti7rmancr of the ticnpc of Sen tam. It Force ~lajeure: \rnhcr pam to Chu :\!~reemcn[ shall f+c liable to the other hx dda+s in perfcxmins flu uhlisations called lix M This :\_rccment ur Ihr diner and indirect costs rcsultins from such delays. that arc caused by labor strik~ti. riots. war. acts of government authorities. extraordinan weather ~undiuuns ur ether natural catastrophe. or anc other cause beyond the reasonable control ur contemplation of either party. J) \n Third-Party Benrfieiaries: Nothing in this Agreement shall create a antracwal rela[icinship with or give an.• right ur benefit to any third pam. 1~) Severability, Reformation and Sunical: If am' provision in this Agreement is held invalid. illegal. or uncnfixceahle. Ihr enlurccabiliq o(the rcmainin~ procisions ;hall nut hr impaired thrrcM. The invalid. illr~al or unenlnrccahlr pri,+ision shall hr replaced by a mutually a.~rptahlr provision. whr~h. hems +al+d. Icgal and enforceable, comes closest to the parties' intention underlying the in+•ahd. illegal or unenforceable provision. Limitations of liability, indemnities. and other express representations shall survive tcrtnination of [his Agreement for any cause. L) Risk Allocation/[.imitation of L,iabilih•_ Client and Summit have discussed the risks. rewards_ and the benefit of the project and Summit"s total fee fix services. The risks have been atlucatrd such that Utc Client agrees that to the fullest extent permitted he la+v. Summits «xal liabilih• to Client and construction amtracton and subcontractors for any and all injuries. claims, losses. ecpenses, damages or claims expenses arising out of this Agreement )'Tom am cause or causes, is limited te? and shall oat exceed Summits fee or Y250,1)00 +rhichever is smaller. Such causes include but. are nut limited to desigl professionals negligence. negligent misrrpre cntation. errors. emissions. strict liability and breach of contract. Higher limits of liability are available 1'or a negotiated fez. tf) Indemnifieafion: To the fullest extent permitted by law. Client agrees to indtmnify and hold harmless Summit, its officers. directors. employees. agent subconsultants from all claims. damages, injuries. liabilities, cetsts and ex mcludin, reasonable a[tomeys fees arising from ur claimed to arise from the omissions_ negligence. fault. breach of contract, breach of w•arramy. or strict liability ol'Client or its employees. agents. contractors and subcontractors. 11 Consequential Damages: Noh+ithstanding any other provision of this Agreement and to the fullest extent permitted by lea. neither Client nor Summit shall be liable for any cnnsequcntial damages incurred due to the fault of dte other party regardless of the nature of the fault or whether it was commilled by Client, Summit their employees. agents. suhconsullants or subcontractors. Consequential damages include. but are nut limited to, loss of use and loss of profit. O) Complete Agreemene this Agreement constitutes the entire agreement. hehveen the panics hereto and supersedes all previous understandings and agreements with n~speet to the Project or am• of the provisions hereof. No statement.. promise. condition. understanding. induccmrnt_ or representation. Ural ur written. expressed or implied. which is not contained h~Kein shall be binding ur valid and dos Agrerntent shall not be changed, modified or altered in any manner except by an instruntcnt in writing executed by the partits hereto. By signing this Agreement, you are consenting to the Terms and Conditions set forth 6ertin. Please h:[ain a copy for yourself and ritum a sinned original to Summit. Client Orange County Summit Consulting Engineers, PLLC Address iU0(1 Corporate Drive, Suite 101 City State Hills~ZOrou~h NC_N~78 ISignaturc) (S r_tta[urel Don Dewey, PE •- iPrint 'siamr) (Print) Date Date .~uaust 2. ?007 L:/Grntechnical/Contracts/0rangr County -Construction Materials Testing. Central Orange Senior Center.duc (3 of 3~