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DocuSign Envelope ID: DD5137D8-OFB4-4BO2-BEB7-5B14OAE9CD6A
<br /> D) Asbestos and hazardous Materials: Unless otherwise specifically provided limitation and repose shall commence to run at the earlier of either the date of Substantial
<br /> in the Scope of Services, Summit and its subconsultants shall have no Completion of the Project or the date Summit's services are substantially complete.
<br /> responsibility for the discovery, presence, handling, removal, or disposal of H) Assigns: Neither the client nor Summit may delegate,assign,or transfer his duties or
<br /> asbestos or hazardous or toxic materials. interest in this Agreement without consent of the other party,except Summit may in its
<br /> ETermination and Suspension: This Agreement may be terminated by either discretion utilize qualified subconsultants in the performance of the Scope of Services,
<br /> party upon seven(7)days written notice in the event of substantial failure by the I)Force Majeure:Neither party to this Agreement shall be liable to the other for delays in
<br /> other party to perform in accordance with the terms hereof. Such termination performing the obligations called for by this Agreement,or the direct and indirect costs
<br /> shall not be effective if the substantial failure is remedied before expiration of the resulting from such delays,that are caused by labor strikes,riots,war,acts of government
<br /> seven(7)days. Client's failure to pay invoices within thirty (30)days shall be authorities, extraordinary weather conditions or other natural catastrophe, or any other
<br /> deemed a substantial failure to perform. In such event, Summit may terminate cause beyond the reasonable control or contemplation of either party.
<br /> this Agreement or immediately suspend the performance of services until such J) No Third-Party Beneficiaries: Nothing in this Agreement shall create a contractual
<br /> failure has been cured. The Client may terminate this Agreement for its relationship with or give any right or benefit to any third party.
<br /> convenience upon fourteen(14)days written notice. In the event of a termination K) Severability,Reformation and Survival:If any provision in this Agreement is held
<br /> for convenience,Client will pay Summit for services performed to the termination invalid,illegal,or unenforceable,the enforceability of the remaining provisions shall not
<br /> effective date plus reasonable termination expenses within ten(10)calendar days be impaired thereby. The invalid,illegal or unenforceable provision shall be replaced by a
<br /> of receipt of a final invoice. mutually acceptable provision,which,being valid,legal and enforceable,comes closest to
<br /> In the event the project,or any phase of it is delayed for reasons beyond Summit's the parties' intention underlying the invalid, illegal or unenforceable provision.
<br /> control,unbilled work will be invoiced at the standard hourly rates for the actual Limitations of liability, indemnities, and other express representations shall survive
<br /> number of hours expended. Completed phases will be billed at fees quoted termination of this Agreement for any cause.
<br /> herein. L) Risk Allocation/Limitation of Liability_Client and Summit have discussed the risks,
<br /> E) Disputes: In an effort to resolve any conflicts that arise during the design or rewards,and the benefit of the project and Summit's total fee for services. The risks have
<br /> construction of the Project or after completion of the Project,all claims,disputes, been allocated such that the Client agrees that to the fullest extent permitted by law,
<br /> or other matters in question between the parties to this Agreement that arise out of Summit's total liability to Client and construction contractors and subcontractors for any
<br /> or relate to this Agreement or the breach thereof shall be submitted to nonbinding and all injuries,claims,losses,expenses,damages or claims expenses arising out of this
<br /> mediation before a neutral third-party mediator acceptable to both parties. Such Agreement from any cause or causes, is Iimited to and shall not exceed Summit's fee or
<br /> mediation shall be a condition precedent to the commencement of any legal action $250,000 whichever is smaller. Such causes include but are not limited to design
<br /> arising out of this Agreement except those legal proceedings related to Client's professional's negligence, negligent misrepresentation, errors, omissions, strict liability
<br /> failure to pay. and breach of contract.Higher limits of liability are available for a negotiated fee.
<br /> The mediation shall be conducted in accordance with the Construction M) Indemnification: To the fullest extent permitted by law,Client agrees to indemnify
<br /> Industry Mediation Rules of the American Arbitration Association currently in and hold harmless Summit,its officers,directors, employees,agents,and subconsultants
<br /> effect unless the parties agree otherwise. The cost of the mediator shall be bome from all claims, damages, injuries, liabilities, costs and expenses, including reasonable
<br /> equally by the parties.A demand for mediation shall be made within a reasonable attorneys fees arising from or claimed to arise from the acts,omissions,negligence,fault,
<br /> time after the claim, dispute or other matter has arisen. In no event shall such breach of contract,breach of warranty,or strict liability of Client or its employees,agents,
<br /> demand be made after the date applicable statutes of limitation or repose would contractors and subcontractors.
<br /> bar a legal or equitable action based on such claim,dispute or other matter. N) Consequential Damages:Notwithstanding any other provision of this Agreement and
<br /> In the event of litigation relating to the sufficiency or adequacy of to the fullest extent permitted by law,neither Client nor Summit shall be liable for any
<br /> performance of services called for by this Agreement, should Summit obtain a consequential damages incurred due to the fault of the other party regardless of the nature
<br /> judgment dismissing Client's action or claim or other resolution wherein Summit of the fault or whether it was committed by Client, Summit, their employees, agents,
<br /> is not required to make compensation to Client in excess of its final offer made to subconsultants or subcontractors. Consequential damages include,but are not limited to,
<br /> Client in the mediation,Summit shall be entitled to recover all costs incurred in loss of use and loss of profit.
<br /> the defense of the claim including staff time,court costs,expert witness fees,and 0) Complete Agreement:This Agreement constitutes the entire agreement between the
<br /> reasonable attorneys'fees,and other claim related expenses. parties hereto and supersedes all previous understandings and agreements with respect to
<br /> F) Choice of LawNenue: This Agreement shall be governed by the laws of the Project or any of the provisions hereof. No statement, promise, condition,
<br /> the state in which the Summit office identified below is located,without regard understanding,inducement,or representation,oral or written,expressed or implied,which
<br /> to its law of conflict of laws.Any legal action or proceeding shall be venued in is not contained herein shall be binding or valid and this Agreement shall not be changed,
<br /> the State or Federal Court nearest the municipality in which Summit's office is modified or altered in any manner except by an instrument in writing executed by the
<br /> located, parties hereto,
<br /> G) Statute of Limitations/Repose: Causes of action pertaining to this
<br /> Agreement shall be deemed to have accrued and the applicable statutes of
<br /> By signing this Agreement,you are consenting to the'Perms and Conditions set forth herein. Please retain a copy for°yourself and
<br /> return the signed Original to Summit Design and Engineering.Services,PLLC
<br /> Client: Orange County Summit Design and Engineering Services
<br /> Address: 504 Meadowland Drive
<br /> City/State: Hillsborough,NC 27278
<br /> By: [SIGN] By: [SIGN]
<br /> (Print Name) (Print Name)
<br /> Date: Date:
<br /> Proposal No.: V134-15. 09/10/2015.
<br /> (Page 3 of 3)
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