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<br /> GENERAL TERMS AND CONDITIONS 5
<br /> STANDARD OF CARE.Trigon Engineering Consultants.Inc.(hereinafter"TEC")will perform those Services contracted for within the scope of work using that degree of care as of the time services are
<br /> rendered which is exercised by and consistent with the standards of similar consultants of ordinary skill and prudence practicing in the same or similar locality of the project site under similar circumstances
<br /> as to the project site.
<br /> SCOPE OF WORK.The Services to be performed are limited 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 to perform any other services.If the proposal does not include any services or testing of an environmental nature for hazardcus 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 the project site.The'Contract Documents'-shall mean-all terms and provisions set forth herein together with proposals,exhibits and other
<br /> documents that form a part of this Agreement.
<br /> PERMITS AND RIGHT OF ENTRY.Client warrants that TEC,its agents,staff,employees and subcontractors have permission to enter upon all lands involved in the services to be performed and that Client
<br /> possesses all neceessary permits and licenses required for the activities being conducted at the site,if Client does not own the land where the services are to be performed.Client warrants that It has obtained ,
<br /> the above required permission from the owner together with a release of TEC by owner as to any damage incidentally incurred in performance of the Service required.
<br /> WARRANTY.THE ONLY WARRANTY MADE BY TEC IS THAT IT WILL USE THAT DEGREE OF CARE SET FORTH IN THE STANDARD OF CARE ABCVE.NO OTHER WARRANTY OR REPRESEN-
<br /> TATION,EITHER EXPRESS OR IMPLIED,IS MADE OR INTENDED,INCLUDING,BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
<br /> DISCLOSURE.Client agrees to furnish or cause to be furnished all information Client has or through due diligence should have which information TEC reasonably requires in order to properly perform the
<br /> Services.TEC will not be responsible for any damages incurred by Client or third parties as a result of 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 necessity of performing any services caused by the failure to disclose such information.
<br /> HEALTH AND SAFETY NOTIFICATION.Client acknowledges that the existence of hazardous materials,substances,wastes and other materials or defects present on the premises can affect the health
<br /> and safety of TEC's personnel and equipment and affect the procedures that TEC will use to minimize risks to its employees and the public.Therefore.Client warrants that it has fully disclosed to TEC any
<br /> knowledge which it,its agents,employees or others with whom it has contracted have,or through the exercise of due diligence could obtain as to the existence of possible existence of any such the
<br /> materials,substances,wastes or other detective materials located 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 suffered:(1)by its failure to disclose;(2)or by it 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 LIABILITY.TEC,in the performance of its Services does not assume control of or responsibility for the site 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 danger to public safety,health,or the environment.Client shall do and perform all acts and make such notifications
<br /> as are appropriate or are required by federal,state or local statutes,laws,ordinances or regulations.In connection with the Services TEC performs,Client agrees that TEC has not contributed to the presence
<br /> of any hazardous materials,substances,wastes,or other defective 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 agrees to fully hold harmless,indemnify,protect and defend,including the costs of attorney fees in its defense,TEC from and
<br /> against any and all claims and liabilities resulting from or arising out of Services and testing performed by TEC,including the possible release or introduction onto the site of hazardous waste or substances '
<br /> caused by the Services,testing or drilling by TEC at the site,whether the same are made by third parties or by governmental agencies under any federal,state,local or common law now existing or hereafter
<br /> arising,including,but not limited to,any claims or actions under the Comprehensive Environmental Response.Compensation and Liability Act,as amended,and the Resources Conservation and Recovery Act,
<br /> as amended.
<br /> INSURANCE.TEC maintains Workers'Compensation and Employer's Liability Insurance in conformance with State Law.In addition,TEC maintains Comprehensive General Liability Insurance and
<br /> Automobile Liability Insurance with combined single bodily injury and property damage limits of$500,000.00.A Certificate 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 g requested by Client.Client shall be responsible for all other necessary and appropriate insurance for the Project site.
<br /> LIABILITY AND INDEMNITY.Client agrees that TEC will not be liable or responsible for any claim,loss or damage asserted by Client,Its agents or employees,or b any third pa arising
<br /> out of or as a result of any act,error or omission by TEC In the performance of the agreed services beyond the limits,coverage or conditions of Insurance specified above or TEC's tee for Its Services
<br /> whichever Is greater.In the event any third party brings suit or claim for damages against TEC allying exposure 10 or damage from material,elements or constituents at or from Client's facility
<br /> before,during,or after the performance of T C's services or as a result of any alleged act,error or omission bb TEC In performance of Its services Client agrees to hold TEC harmless,and Indemnify '
<br /> TEC for damefse In amounts beyond the limits,coverage or conditions of Insurance specified above or TEC's tee,whichever is greater.In the event any third party brings suit or claim for damages
<br /> against TEC alleging exposure to or damage tram material,eleman4 or consttuents at or from Client's facility before,duriy,or alter performance of the Services,which Is alleged to haw resulted
<br /> In cost for remedial action,unlnhabltablllty of the property or other property damages.Client agrees to defend TEC In any such suit or claim and hold TEC harmless and Indemnity TEC fully for any
<br /> such claims.Client,with concurrence,will select,hire and pay an attorney to defend TEC In any such suit or claim,will pay Court costs for which TEC may be liable In any such suit and will beer
<br /> and pay litigation expenses Client Incurs In providing a reasonable and professional defense which will be provided by Client.Client will have the right to Investigate,negotiate and settle,with TEC's
<br /> concurrence any such suit or claim,and TEC will cooperate In the defense of any such Suit or Claim. .
<br /> SAMPLING OR TESTING LOCATIONS.The unit fees included in this proposal do not include costs associated with 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 furnished to TEC by others or estimates made in the field by TEC's technicians.Such dimensions,
<br /> depths or elevations are considered as approximations unless otherwise stated in the report.
<br /> DAMAGE TO EXISTING MAN-MADE OBJECTS.It shall be the res nsibil"Ay of the Client or the Owner,or their duty authorized representatives to disclose the presence and accurate location of all hidden
<br /> or obscure man-made objects,relative to field test or boring locations.TEC's field personnel are trained to recognize clearly identifiable stakes or marking in the field,and without special written instructions,to
<br /> initiate field testing,drilling and/or sampling within a few feet of each designated location.11 TEC is cautioned,advised,or given data in writing that reveals the presence of underground or overground
<br /> obstructions,such as utilities,pipes,cables or tanks,special instructions will be given TEC personnel.Client has sole responsibility for providing TEC with this information.Client agrees to indemnify and save
<br /> TEC harmless from all claims,suits,losses,personal injuries,death,and property liability resulting from unusual subsurface conditions or damages to subsurface structures,owned by Client or third ponies,
<br /> occurring in the performance of the proposed work,whose presence and exact locations were not revealed to TEC in writing,and to reimbuse TEC for expenses in connection with any such claims or suits,
<br /> including reasonable attorney's fees.
<br /> SAMPLE DISPOSAL AGREEMENT.Test specimens or samples(excluding drilling samples)will be disposed of immediately upon completion of tests.All drilling samples will be disposed of 60 days after ,
<br /> submission of TEC's report unless otherwise requested.Upon request,TEC will agree to retain test specimens or drilling samples for a mutually acceptable storage charge.
<br /> CONTAMINATED EQUIPMENT,All laboratory and field equipment contaminated in performing 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 or disposed of in a manner indicated for hazardous materials or substances.Client agrees to pay TEC the fair market value of any such equipment
<br /> which cannot reasonably be decontaminated.
<br /> UNFORESEEN OCCURRENCES.I1,during the performance of Services,any unforeseen hazardous substances or constituents or other unforeseen conditions or occurrences are encountered which,in '
<br /> TEC's sole judgment significantly affect or may affect the Services,the risk involved in providing the Services,or the recommended scope of Services,TEC will promptly notify Client thereof.Subsequent to that
<br /> notification.TEC may:
<br /> (a)g practicable,in TEC's sole judgment,complete the original scope of work in accordance with the procedures originally provided in the proposal;
<br /> (b)Agree with Client to modify the Scope of Work and the estimate of charges to include study of the previously unforeseen condtions w occurrences,such revision to be in writing and signed by the parties
<br /> and incorporated herein,or
<br /> (c)Terminate the Services effective on the date specified by TEC in writing.
<br /> CLAIMS.In the event that Client makes a claim against TEC for any kind of relief,for any alleged error,omission,or act arising out of the psrformance of TEC's Services,that cannot be mutually
<br /> resolved without resort to litigation,and Client falls to prevail on such claim,then Client shall pay all costs Incurred by TEC In defending TEC against the claim,Including,without llmltetlon,TEC's
<br /> personnel-related costs,attorney's fags,court costs,and other tdalm-related expenses,Including,without limitation,costs,fees,and expenses of experts.Client agrees that for the purposes of this
<br /> Agreement It has failed to prevail as to its claim when Judgment In he favor In litigation Is for a sum of money lose than that sum offered by TEC to resolve the matter without litigation,or when Client
<br /> has a judgment entered against It on any or all claims asserted.
<br /> INCIDENTAL SITE DAMAGE.Client recognizes that the Services to be rendered may unavoidably affect,alter or damage the terrain,structures.buildings,vegetation and equipment in,at or upon the site
<br /> and Client will not hold TEC liable or responsible for the same.
<br /> LAW TO APPLY.The validity,interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the state of North Carolina.
<br /> NO WAIVER,No waiver by either party of any default by the other party in the performance of any provision of this Agreement shall operate as or be construed as a waiver of any future default,whether like
<br /> or different in character. '
<br /> SEVERABILITY.11 any provision of this Agreement,or application thereof to any person or circumstance shall to any extent be invalid,the remainder of this Agreement,or the application of such provision
<br /> to persons or circumstances other than those as to which 4 is heltl invalid,shall not be affected thereby,and each provision of this Agreemem shall be valid and enforced to the fullest extent permitted by law.
<br /> ENTIRE AGREEMENT.This Agreement,including the Contract Documents,represents the entire understanding and agreement between the parties 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 or different terms or conditions conflict with the terms and conditions of this
<br /> Agreement,the terms and conditions of this Agreement shag govern.No amendment or modification to this Agreement or any waiver of any provisions hereof shall be effective unless in writing and signed by
<br /> both parties.
<br /> PAYMENTS TERMS:
<br /> A.Client will pay TEC for services and expenses in accordance with the Contract Documents.TEC will submit progress invoices to Client monthly and final invoice upon completion of its services.Each
<br /> invoice,on presentation,is due and payable by Client or its authorized representative.Invoices are past due after 30 days.Past due amounts are subject to a service charge of one and one-halt percent per
<br /> month(18%per annum)on the outstanding balance.Attorney's fees and other costs incurred in collecting past due amounts shall 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 stated in this Agreement as specifically authorized by Client.
<br /> C.The Client's obligation to pay for the Services contracted is in no way dependent upon the Client's ability to obtain financing,approval of governmental or regulatory agencies,or upon the Client's
<br /> successful completion of the project.
<br /> 0.The individual signer on behaff 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 effort to resolve any conflicts that arise during the project or following the completion of the project,the Client and TEC agree that ail disputes between them arising out of.
<br /> or relating to this Agreement shall be submitted to non-binding mediation,with mediation costs shared equally,unless the parties mutually agree otherwise.The parry claiming that a dispute has arisen shall '
<br /> notify the other party within 15 days it claims there is a dispute and mediation shall occur between the parties at a date and location mutually agreed within 30 days after said notice.The Client and TEC further
<br /> agree to include a similar mediation provision in all agreements with independent contractors and consultants retained for the project and to require all independent subcontractors and consultants also to
<br /> include a similar mediation provision in all agreements with subconsultants,subcontractors.suppliers or fabricators so retained,thereby providing mediation as the primary method for dispute resolution
<br /> between the parties to those agreements.
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