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GENERAL TERMS AND CONDITIONS '
<br />STANDARD OF CARE. Togon Engineering Consultants. Inc. (hereinafter "TEC") will pertorm those Services contracted for wthin the scone of work :ang that degree of care as of the time services are
<br />rendered which is exerased by and consistent wrth the standards of similar consultants of ortltnary skill antl prudence pracliang m the same cr s~mdar locality of the project site untler similar arcumsiances
<br />a5 t0 She pfOjeCt Site.
<br />SCOPE OF WORK- The Servrces to be pertormed are kmited to those set forth in TEC's proposal and TEC shall be under no duty to render any service not expressly covered therein nor shall TEC be liable
<br />for the failure [o perform any other services. If the proposal does not include any services or testing of an environmental nature for hazardr~s wastes or substances then TEC may rely on the same as a disclosure
<br />by Client of the non-presence of any such waste or substances on me project site. The "Contract Documents" sha!I mean all terms and yrowsions set loch herein together wrth proposals, exhibits and other
<br />documents that form a pan of this Agreement.
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<br />PERMITS AND RIGHT OF ENTRY. Client warrants that TEC, its agents, start. employees and subcontractors have permission to enter upon all lands involved in the services to be pertormed antl that Client
<br />possesses elf neceessary permits and licenses required for the acfivrties being conducted at the site, if Client does not own the land where the services are to be pertormed. Client warcants that n has obtained
<br />the above requued permissron from the owner together with a release of TEC by owner as to any damage incidentally incurted in perormance of the Service requhed.
<br />WARRANTY. THE ONLY WARRANTY MADE BY TEC IS THAT IT WILL USE THAT DEGREE OF CARE SET FORTH iN THE STANOAAD OF CARE ABOVE. NO OTHER WARRANTY OR REPRESEN-
<br />TATION, EITHER EXPRESS OR IMPLIED. IS MADE OR INTENDED, INCLUDING, BUT NOT LIMITED TO ANV WARRANTY OF FITNESS FDR A PARTICULAR PURPOSE.
<br />DISCLOSURE. Client agrees to furnish or cause to be furnished all information Client has or through due diligence should have whim information TEC reasonably requires in order to properly peAOrm the
<br />Services. TEC will not be responsible for any damages incurred by Client or third parties as a result o1 Client's failure to disclose such information to TEC. In addition. TEC will not be responsible for performing
<br />any services or advising Client of the necrssdy of performing any services caused by the failure to disclose such information.
<br />HEALTH AND SAFELY NOTIFICATION. Client acknowledges that the existence of hazardous materials, substances. wastes antl other materials or detects present on the premises can ariect the health
<br />and safety of TEC's personnel and equipment and enact the procedures that TEC will use to minimize risks to hs employees and the public. Therefore. Client warrants that it has fully tlisciosed to TEC any
<br />knowledge which d, its agents. employees or others with whom ri has contracted have, w through the exercise of due diligence coultl obtain as to the existence or possible existence of any such hazardous
<br />matrrials, substances, wastes or other defective materials locatetl on or about the project premises. Client agrees that it will be liable for damages suffered by TEC, its employees, agents or subcontractors in
<br />the event of personal injury or disease or loss of equipment stAlered:(t) by rte failure to disebse; (2) or by d or its agents and other contractors failure to adequately protect from or prevent the introduction of such
<br />materials on the site.
<br />HAZARDOUS SUBSTANCE DISCLOSURE AND LIABIIJT'Y. TEC, in the performance of its Services does not assume control of or responsibility for the she and has no responsibility for reporting to any
<br />federal, state or local public agencies any conditions at the site that may represent a potential tlanger to public safety, health, or the environment. Client shall do and perform all acts and make such notifications
<br />as era appropriate or are requxed by federal, state or local statutes, laws, ordinances or regulations. In connection with the Services TEC performs, Client egress mat TEC has not contributed to the presence
<br />of any hazardous materials, substances, wastes, or other detective materials located on or about the project site and TEC will not be liable to Client for any damages, claims; expenses or costs concerning the
<br />same arising out of the performance of Services requested by Client. Client further aggrees to fully hold harmless, indemnity, protect and defend, including the costs of anomey tees in its defense, TEC from and
<br />against any and all claims antl liabilities resuning from or arising out of Services and testing performed by TEC, including me possible release or inirooucuon onto the site of hazardous waste or substances
<br />Caused by the Services, testing or drilling by TEC at the she, whether the same are made by third parties w by govemmendl agencres untler any federal, state, local or common law now existing or hereafter
<br />arising, including, but not limited to, any claims w actions under me Comprehensive Environmental Response. Compensation and Liability Act, as amended. antl the Resources Conservation antl Recovery Act,
<br />as emended.
<br />INSURANCE. TEC maintains Workere' Compensation and Employer's Liability Insurance in conformance with State Law. to addition, TEC maintains Comprehensive General Liability Insurance and
<br />Automobile Uabiliry Insurance with combined single bodily injury antl property damage limfts of 5500,000.00. A Cert~cate of Insurance will be supplied evidencing such coverage which contains a clause
<br />providing that ten days written notice be given prior to cancellation of coverage if requested by Client. Client shall be responsible for all other necessary and appropriate insurance for Me Project site.
<br />LIAlILIT11 ANO INDlMNITY. CINnt ^aaroes that TEC will not be Idbls or rosporralbd for any claim, ba or damage asserted by Client, its agend w employees, w by any third parry arlaMg
<br />out of w as a result oT any eel, !error or omlubn by TEC In the paAortnenq of ilia agreed servleaa beyond tM Ilmlts, eovsngs or eondrilona of Insurance spsetlled strove or C's iN fw ris rxa
<br />whlehsver la greeter. In the avant any thlrtl ppaa-tY brings stiff or claim for damepyn agalrgt TEC alleging sxposuro to w damage from metsrlel, slsmand or consthuend et or from CINM'a faUtttll
<br />befws, during, or after Ilia parformenee of TEC'a servlGa w as a resuil 01 arty alhgsd act, error or omlulon by TEC In ppsertormanea al ha urvleas Client agrasa to hold TEC harmless, and IntlemnMy
<br />TEC Iw dam~gn In amounts beyond the Ilmlta, coverps w r;ondHlona o} Inwronce apeeMled above w 7EC's iN, whichever Is greater. in the event any third pparty bnnppa sutt w claim fw damagN
<br />against TEC allaegging exposuro to or darnape from material, eNmertd w conatlttrand at or from CINrt's tselllry t»foro, durlrtg, w after parlormsnce of the Servitxa, whleh Is alleged to hew rnultad
<br />In coat for rameddl action, uninhabldblllty o} the property or other property damages. Clent agrees to defend TEC In sryr wch wtt or claim and hold TEC harmless antl Indsmnlry TEC tugy fw airy
<br />such cdlma. Chant, with concurrence, will seler;t, hlro and pay an attorney to dNsnd TEC In any streh Butt w elalm, will pay Court cosU for which TEC may be Idble M arty wch wh and wgl bear
<br />and pay Ihlgatlon expenNS Client Iruuro In oWding • reaaonabd and profeaslonal defense wh h will ba provided by Cl nt. Cllert! wlil have the rlgM to Invsatlgsts, nsgotlad and Nttd, with TEC's
<br />rxnr:urrena any such suit or claim, and TEC wlil txwperod In ifN dNarus of any auoh SuM or Claim.
<br />SAMPLING OR TESTING IACATIONS. The and fees included in this proposal do not include costs associated wrth surveying of the site or the accurate horizontal and vertical locations of tests. Field tests
<br />or boring locations described in TEC's reports or shown on TEC's sketches are based on specific information tumished to TEC by others or estimates made in the field by TEC's technicians. Suctt dimensions,
<br />depths w elevations are considered as approximations unless ctherwise stated in the report.
<br />DAMAGE TO EXISTING MAN-MADE OBJECTS. It shall b~ the responsibil'ay of the Glens or the Owner, w their tluly authorized representatives todisclose the presence and accurate location of all hidden
<br />or obscure man-made objects, relative to field test w boring IoCations. TEC s freld personnel era trained to recognize Ilearly itlentifiable stakes or marking in the field, and without special written instructions, to
<br />initiate field testing, drilling and/or sampling within a few tent of eadr designated kicetion. It TEC is cautioned, atlvised, or given data in writing that reveals the presence of underground or overground
<br />obstructions, such as utilities, pipes, cables or tanks, special instructions well be given TEC personnel. Giant has sole responsibility for providing TEC with this information. Client agrees to indemnify and save
<br />TEC harmless from all claims, suds, losses, personal injuries, death, and pr liability resuking from unusual subsurface conditions or tlamages to subsurface structures, owned by Client or thud parties,
<br />occurting in the performance of the proposed work, whose presenrxi and exact locations were not revealetl to TEC in writing, and to reimbuse TEC fw expenses in connection with any such claims or suds,
<br />including reasonable attorney's tees.
<br />SAMPLE DISPOSAL AGREEMENT. Test specimens or samples (excludingy drilling samples) will be disposed of immediately upon completion of tests. All drilling samples will be disposed of Ii0 days arier
<br />submission of TEC's report unless otherwise requested. Upon request. TEC writ agree to redin test specimens w drd6ng samples for a mutually acceptable storage charge.
<br />CONTAMINATED EQUIPMENT. All laboratory and field equipment contaminated in performingg TEC's Services and which cannot be reasonably decontaminated shall become the property and responsi-
<br />bility of Client. All such equipment shall be delivered to Client w disposed of in a manner indicated fw hazardous materiels or substances. Client agrees to pay TEC the fair market value of any such equipment
<br />which Cannot reasonably !>e decontaminated.
<br />UNFORESEEN OCCURRENCES. If, during the pedormance of Services, any unoreseen hazardous substances w constituents or other unforeseen conditions or occurrences are encountered which, in
<br />TEC's sole judgment signHicantly affect or may afect the Services, the risk involved in providing the Services. w the recommended scope of Services. TEC will promptly notify Client mereof. Subsequent to that
<br />notification. TEC may:
<br />(a) If practicable, in TEC's sole judgment, complete the original scope of work in accorderice with the procedures originally provided in the proposal;
<br />(b) Agree with Client to modify the Scope of Work acrd the estimate of Charges l0 iriclutle study of the previously unforeseen condtrons w trccumences, such revision to be in writing and signed by me parties
<br />andincorporated herein, or
<br />(cj Terminate the Services effective on the date specified by TEC in writing.
<br />CLAIMS. In the event that Client make a claim agalnat TEC for arty kind of rNlef, tw any Ndgad error, orrtlaslort, or ad erlalnq out of tM psrtormance of TEC's Ssrvless, that cannot bs m Wually
<br />roaolvsd without rsarat to IHlgatlon, and Clent fella to prevail on such edlm, tMn CIdM shall pay all coats Irretrrted by TEC In Wlending TEC aganst the calm, Including, wtthoul Ilmldtlon, TEC's
<br />personnel-rotated coed, eftomey's fees, court costs, end otMr elalm-Mated axpanns. Ineludln9, wRhoul IlmltatkM, cwU, tees, end expanses of experts. Chant agroas that for tM purpous at flits
<br />Agreement It has faUed to pnvafl as to ds claim when judgment in Id favor in iltlgatbn la for a sum of money Iqs than tfrat win offered Dy TEC to rosoNs tM merisr without Ittlgatlon, or when Cllsnt
<br />has a judgment entered egslnst It on any w all calms asserted.
<br />INCIDENTAL SITE DAMAGE. Client recognizes that me Serves to be rendered maV unavoidably attecL arier br damage the remain, structures, buildings, vegetation and equipment in, ai or upon the she
<br />and Client will not hold TEC liable or responsible for llte same.
<br />LAW TO APPLY. The validity, interpredtion and perormance of this Agreement shall be governed by and construed jn accwdance with the laws of the state of North Carolina.
<br />NO WAIVER. No waiver by either paAy of any dafaun by the other party in the performance of any provision of this Agreement shall operate es or be construed as a waiver of any future default, whether like
<br />or different in character.
<br />SEVERABILITY. If any provision of this Agreem~tl, or application thereof to any person or circumstance shall to any extent be invalid, the remainder of this Agreement, or the applicaton of such provision
<br />to persons or circumstances other than those as to which a is hold invalid, shall not be affected thereby, and each provison of this Agreement shall be valid antl enforced to the tulles[ extent permmed by law.
<br />ENTIRE AGREEMENT. This Agreement, including the COntrect Documend, represents me emirs understanding and agreement between me parries hereto relating to the Services and supersedes any and
<br />all prior agreements, whether written or oral, that may exist between the parties regarding same. To the extent that any additional w ditierrtM terms or conditions conPoCt with the terms and condhions of true
<br />Agreement, the terms and conditions of this Agreement stroll govern. No amerrdmr3rit or modification to this Agreement or any waiver of any provisions hereof shall be effective unless in wrhing and signed by
<br />both parries.
<br />PAYMENTS TERMS:
<br />A. Client will pay TEC for services and expenses in tsccordsrice wrth Me Contract Documents. TEC will submit progress irnoices to Client monthly and final invoice upon completion of its services. Each
<br />invoice, on presentation, is due and payable by Client or its authrized represendtive. Irnoices are past due after 30 days. Pest due amounts are subject to a service charge of one and one-halt percent per
<br />monm (t B% per annum) on the outstanding balance. Attorney's fees and other costs incurred in collecting past due amounts shalt be paid by Client.
<br />B. TEC shall be paid in full for all Services under this Agreement, including any additional Services in excess of these sated in this Agreement aS specifically authorized by Client.
<br />C. The Client's obligation to pay for the Services contracted is in n0 way dependent upon the Client's ability l0 obtain financing, approval of governmental or regulatory agencies, or upon the Client's
<br />successful completion of ilte project.
<br />D. The indrviduel signer on behalf of Client hereby personally represents and guarantees that Client is solvent and has the ability to pay TEC for the services to be rendered in accordance with the terms
<br />hereof.
<br />DISPUTE RESOLUTION. In an snort to resolve any conriicts that arise during the project w following the completion of the project, [he Client and TEC ag.ee that as disputes between them arising out of.
<br />or relating to this Agreement shalt be submitted to non-binding mediation, with mediation costs shared equally, unless the parties mutuall~ agree otherwise. The party claiming that a dispute has arisen snail
<br />notiry the other party within 15 days it claims there is a dispute and mediation shall occur between the parties at a date end location mutual y agreed within 30 days arier said nonce. The Ckent and TEC furtmer
<br />agree to include a similar mediation provision in all agreements with independent contractors antl consultants retained for the project and io require all independent subcontractors and consultants also f0
<br />include a similar mediation provision in all agreements wrth 5ubconsu118n15, Subcontractors, Suppliers br labrieators so retained. thereby promding mediation as the primary method for dispute resolution
<br />between the parries to those agreements.
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