2016-258-E DEAPR - Summit Design and Engineering Services for geotechnical services

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DocuSign Envelope ID:7DEFBC40-ACE8-418F-A707-78004D4F60A4 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 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. 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 asbestos or hazardous or toxic materials. interest in this Agreement without consent of the other party, except Summit may in its ETermination and Suspension: This Agreement may be terminated by either discretion utilize qualified subconsultants in the performance of the Scope of Services. party upon seven(7)days written notice in the event of substantial failure by the I)Force Majeure:Neither parry to this Agreement shall be liable to the other for delays in 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 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 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 deemed a substantial failure to perform. In such event, Summit may terminate cause beyond the reasonable control or contemplation of either party. this Agreement or immediately suspend the performance of services until such J) No Third-Party Beneficiaries:Nothing in this Agreement shall create a contractual failure has been cured. The Client may terminate this Agreement for its relationship with or give any right or benefit to any third party, convenience upon fourteen(14)days written notice. In the event of a termination I) Severability,Reformation and Survival: If any provision in this Agreement is held for convenience,Client will pay Summit for services performed to the termination invalid, illegal,or unenforceable,the enforceability of the remaining provisions shall not 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 of receipt of a final invoice, mutually acceptable provision,which,being valid,legal and enforceable,comes closest to 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, control,unbilled work will be invoiced at the standard hourly rates for the actual Limitations of liability, indemnities, and other express representations shall survive number of hours expended. Completed phases will be billed at fees quoted termination of this Agreement for any cause. herein. L) Risk Allocation/Limitation of Liability:Client and Summit have discussed the risks, 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 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, 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 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 mediation before a neutral third-party mediator acceptable to both parties. Such Agreement from any cause or causes,is limited to and shall not exceed Summit's fee or 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 arising out of this Agreement except those legal proceedings related to Client's professional's negligence, negligent misrepresentation, errors, omissions, strict liability failure to pay. and breach of contract.Higher limits of liability are available for a negotiated fee. The mediation shall be conducted in accordance with the Constriction M) Indemnification: To the fullest extent permitted by law,Client agrees to indemnify Industry Mediation Rules of the American Arbitration Association currently in and hold harmless Summit, its officers,directors, employees, agents, and subconsultants effect unless the parties agree otherwise. The cost of the mediator shall be borne from all claims, damages, injuries, liabilities, costs and expenses, including reasonable 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, 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, demand be made after the date applicable statutes of limitation or repose would contractors and subcontractors. 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 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 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 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, 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, Client in the mediation,Summit shall be entitled to recover all costs incurred in loss of use and loss of profit. the defense of the claim including staff time,court costs,expert witness fees,and O) Complete Agreement: This Agreement constitutes the entire agreement between the reasonable attorneys'fees,and other claim related expenses. parties hereto and supersedes all previous understandings and agreements with respect to F) Choice of Law/Venue: This Agreement shall be governed by the laws of the Project or any of the provisions hereof. No statement, promise, condition, the state in which the Summit office identified below is located,without regard understanding,inducement,or representation,oral or written,expressed or implied,which 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, 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 located, parties hereto. G) Statute of Limitations/Repose: Causes of action pertaining to this Agreement shall be deemed to have accrued and the applicable statutes of By signing this Agreement,you are consenting to the Terms and Conditions set forth herein. Please retain a copy for yourself and return the signed Original to Summit Design and Engineering Services,PLLC. Client: Orange County Summit Design and Engineering Services Address: 306A Revere Rd. Address: 504 Meadowland Drive City/State: Hillsborough,North Carolina 27278 City/State: Hillsborough,NC 27278 By: [SIGN] y: [SIGN] (Print Name) (Print Name) Date: Date: (Page 3 of 3)