|
<br />WithersRavenel, Inc. Standard Terms & Conditions Page 2
<br /> Effective September 14, 2020
<br />14. Severability: If any provision of this Agreement, or application
<br />thereof to any person or circumstance, is found to be invalid then such
<br />provision shall be modified if possible, to fulfill the intent of the parties
<br />as reflected in the original provision. The remainder of this Agreement,
<br />or the application of such provision to persons or circumstances other
<br />than those as to which it is held invalid, shall not be affected thereby, and
<br />each provision of this Agreement shall be valid and enforced to the
<br />fullest extent permitted by applicable law.
<br />15. No Waiver: No waiver by either party of any default by the other
<br />party in the performance of any provision of this Agreement shall
<br />operate as or be construed as a waiver of any future default, whether
<br />like or different in character.
<br />16. Merger, Amendment: This Agreement constitutes the entire
<br />Agreement between the CONSULTANT and the CLIENT and all
<br />negotiations, written and oral understandings between the parties are
<br />integrated and merged herein. This Agreement can be supplemented
<br />and/or amended only by a written document executed by both the
<br />CONSULTANT and the CLIENT.
<br />17. Unforeseen Occurrences: If, during the performance of services
<br />hereunder, any unforeseen hazardous substance, material, element of
<br />constituent or other unforeseen conditions or occurrences are
<br />encountered which affects or may affect the services, the risk involved
<br />in providing the service, or the recommended scope of services,
<br />CONSULTANT will promptly notify CLIENT thereof. Subsequent to that
<br />notification, CONSULTANT may: (a) if practicable, in CONSULTANT’s
<br />sole judgment and with approval of CLIENT, complete the original Scope
<br />of Services in accordance with the procedures originally intended in the
<br />Proposal; (b) Agree with CLIENT to modify the Scope of Services and the
<br />estimate of charges to include study of the previously unforeseen
<br />conditions or occurrences, such revision to be in writing and signed by
<br />the parties and incorporated herein; or (c) Terminate the services
<br />effective on the date of notification pursuant to the terms of the
<br />Agreement.
<br />18. Force Majeure: Should completion of any portion of the Agreement
<br />be delayed for causes beyond the control of or without the fault or
<br />negligence of CONSULTANT, including force majeure, the reasonable
<br />time for performance shall be extended for a period at least equal to the
<br />delay and the parties shall mutually agree on the terms and conditions
<br />upon which Agreement may be continued. Force majeure includes but is
<br />not restricted to acts of God, acts or failures of governmental authorities,
<br />acts of CLIENT’s contractors or agents, fire, floods, epidemics,
<br />pandemics, riots, quarantine restrictions, strikes, civil insurrections,
<br />freight embargoes, and unusually severe weather.
<br />19. Safety: CONSULTANT is not responsible for site safety or
<br />compliance with the Occupational Safety and Health Act of 1970
<br />(“OSHA”). Job site safety remains the sole exclusive responsibility of
<br />CLIENT or CLIENT’s contractors, except with respect to
<br />CONSULTANT’S own employees. Likewise, CONSULTANT shall have no
<br />right to direct or stop the work of CLIENT’s contractors, agents, or
<br />employees.
<br />20. Dispute Resolution/Arbitration: Any claim or other dispute arising
<br />out of or related to this Agreement shall first be subject to non‐binding
<br />mediation in accordance with the then‐current Construction Industry
<br />Mediation Procedures of the American Arbitration Association (“AAA”).
<br />If mediation is unsuccessful, such claim or other dispute shall be subject
<br />to arbitration in accordance with the AAA’s then‐current Construction
<br />Industry Arbitration Rules. Any demand for arbitration shall be filed in
<br />writing with the other party and with the American Arbitration
<br />Association. CLIENT agrees to the inclusion in such arbitration (whether
<br />by initial filing, by joinder or by consolidation) of any other parties and of
<br />any other claims arising out of or relating to the Project or to the
<br />transaction or occurrence giving rise to the claim or other dispute
<br />between CLIENT and CONSULTANT.
<br />21. Independent Contractor: In carrying out its obligations,
<br />CONSULTANT shall always be acting as an independent contractor and
<br />not an employee, agent, partner or joint venturer of CLIENT.
<br />CONSULTANT’s work does not include any supervision or direction of
<br />the work of other contractors, their employees or agents, and
<br />CONSULTANT’s presence shall in no way create any liability on behalf
<br />of CONSULTANT for failure of other contractors, their employees or
<br />agents to properly or correctly perform their work
<br />22. Hazardous Substances: CLIENT agrees to advise CONSULTANT
<br />upon execution of this Agreement of any hazardous substances or any
<br />condition existing in, on or near the Project Site presenting a potential
<br />danger to human health, the environment or equipment. By virtue of
<br />entering into the Agreement or of providing services, CONSULTANT
<br />does not assume control of, or responsibility for, the Project site or the
<br />person in charge of the Project site or undertake responsibility for
<br />reporting to any federal, state or local public agencies, any conditions at
<br />the Project site that may present a potential danger to the public, health,
<br />safety or environment except where required of CONSULTANT by
<br />applicable law. In the event CONSULTANT encounters hazardous or
<br />toxic substances or contamination significantly beyond that originally
<br />represented by CLIENT, CONSULTANT may suspend or terminate the
<br />Agreement. CLIENT acknowledges that CONSULTANT has no
<br />responsibility as a generator, treater, storer, or disposer of hazardous or
<br />toxic substances found or identified at a site. Except to the extent that
<br />CONSULTANT has negligently caused such pollution or contamination,
<br />CLIENT agrees to defend, indemnify, and hold harmless CONSULTANT,
<br />from any claim or liability, arising out of CONSULTANT's performance of
<br />services under the Agreement and made or brought against
<br />CONSULTANT for any actual or threatened environmental pollution or
<br />contamination if the fault (as defined in N.C.G.S. 22B‐1(f)(7)) of CLIENT
<br />or its derivative parties (as defined in N.C.G.S. 22B‐1(f)(3)) is a proximate
<br />cause of such claim or liability.
<br />23. Choice of Law: The validity, interpretation, and performance of this
<br />Agreement shall be governed by and construed in accordance with the
<br />law of the State of North Carolina, excluding only its conflicts of laws
<br />principles.
<br />24. Construction Services: If construction administration and review
<br />services are requested by the CLIENT, CLIENT agrees that such
<br />administration, review, or interpretation of construction work or
<br />documents by CONSULTANT shall not relieve any contractor from
<br />liability in regard to its duty to comply with the applicable plans,
<br />specifications, and standards for the Project, and shall not give rise to a
<br />claim against CONSULTANT for contractor’s failure to perform in
<br />accordance with the applicable plans, specifications or standards.
<br />25. Field Representative: If CONSULTANT provides field services or
<br />construction observation services, the presence of the CONSULTANT's
<br />field personnel will only be for the purpose of providing observation and
<br />field testing of specific aspects of the Project. Should a contractor be
<br />involved in the Project, the CONSULTANT's responsibility does not
<br />include the supervision or direction of the actual work of any contractor,
<br />its employees, or agents. All contractors should be so advised.
<br />Contractors should also be informed that neither the presence of the
<br />CONSULTANT's field representative nor the observation and testing by
<br />the CONSULTANT shall excuse contractor in any way for defects in
<br />contractor's work. It is agreed that the CONSULTANT will not be
<br />responsible for job or site safety on the Project and that the
<br />CONSULTANT does not have the right to stop the work of any
<br />contractor.
<br />26. Submittals: CONSULTANT’s review of shop drawings and other
<br />submittals is to determine conformity with the design concept only.
<br />Review of shop drawings and submittals does not include means,
<br />methods, techniques, or procedures of construction, including but not
<br />limited to, safety requirements.
<br />Docusign Envelope ID: 5622E999-C699-491D-A456-5EFFDDB75E19
|