|
040
<br />McKim & Creed, P.A.
<br />General Conditions
<br />(3/2002-1)
<br />Killing and Payment. Invoices will be submitted by McKim & Creed,
<br />P.A. (the "Engineer') to the Client monthly for services performed and
<br />expenses incurred pursuant to this Agreement. Payment of each such
<br />invoice will be due upon receipt and considered past due if not paid
<br />within thirty (30) days of the date of the Invulce. Ame retainers shall be
<br />credited on the final invoice.
<br />a) Interest. A service charge will be added to delinquent
<br />accounts at 18 percent per annum (1 5 percent per month),
<br />b) Suspension of Services. If the Client fails to make any
<br />payment due the Engineer for services and expenses within thirty (30)
<br />days of the invoice date on the project(s) covered by this agreement or
<br />any other project(s) being performed by Engineer for Client, the
<br />Engineer may suspend services under this Agreement until it has been
<br />paid in full for all past due amounts owed by Client for services and
<br />expenses- The Engineer shall have no liability whatsoever to the Client
<br />for any costs or damages occurring as a result Olt suspension caused
<br />by any such breach of this Agreement by Client
<br />c) Collection Costs. In the ,,of legal anion is necessary to
<br />enforce the payment provisions of this Agreement, the Engineer shall be
<br />entitled to collect from the Client any judgment or settlement sums due,
<br />reasonable attorneys' fees, court costs and expenses incurred by the
<br />Engineer in connection therewith and, in addition, the reasonable volute
<br />of the Engineer' s time and expenses spent in connection with such
<br />collection action, computed at the Engineer's prevailing fee schedule and
<br />expense poGdes
<br />d) Termination of services. The failure of the Client to make
<br />payment to the Engineer in accordance with the payment terms set forth
<br />herein, shall constitute a material breach of this Agreement and shall
<br />entitle the Engineer, at its opfion, to terminate the Agreement Any
<br />material breach of this Agreement by the Client shall, at the Engineer's
<br />option and in its sole discretion, constitute a breach of and default under
<br />any and/or all other agreements between the Client and Engineer
<br />Confidentiality. The Engineer agrees to keep confidential and not to
<br />disclose to any person or entity, other than the Engineer's employees,
<br />sub-consultants and the general contractor and subcontractors, if
<br />appropriate, any data and information not previously known to and
<br />generated by the Engineer or furnished to the Engineer and marked
<br />CONFIDENTIAL by the Client. These provisions shall not apply to
<br />information in whatever form that comes into the public domain, nor
<br />shall it restrict the Engineer from giving notices required by law or
<br />complying with an order to provide information or data when such order
<br />is issued by a court, administrative agency or other authority with proper
<br />jurisdiction, or if it is reasonably necessary for the Engineer to defend
<br />itself from any suitor claim
<br />The Client agrees that the technical methods, techniques and poring
<br />information contained in any proposal submitted by the Engineer
<br />pertaining to this project or in this Agreement or any addendum thereto,
<br />are to be considered confidential and proprietary, and shall not be
<br />released or otherwise made available to any third party without the
<br />express written consent of the Engineen
<br />regardless of the nature of the fault or whether it was committed by the
<br />Client or the Engineer, their, employees, agents, sub-consultan is or
<br />subcontractors Consequential damages include, but are not limited to,
<br />loss of use and lost profit.
<br />Non-Contingency. The Client acknowledges and agrees that the
<br />payment for services rendered and expenses incurred by the Engineer
<br />pursuant to this Agreement is not subject to any contingency unless the
<br />same is e,precly set forth in this Agreement payments to the Engineer
<br />shall not be withheld, postponed or made contingent on the financing,
<br />construction, completion or success of the project or upon receipt by the
<br />Client of offsetting reimbursement or credit from other parties causing
<br />Additional Services or expenses- No withholdings, deductions or offsets
<br />shall be made from the Engineer's compensation for any reason-
<br />Opinions of Cost.
<br />(a) Since the Engineer has no control over the cost of labor,
<br />materials, equipment or services furnished by others, or over methods of
<br />determining prices, or over competitive bidding or market conditions,
<br />any and all opinions as to costs rendered hereunder, including but not
<br />limited to opinions as to the costs of construction and materials, are
<br />estimates only and shall be made on the bass of its experience and
<br />qualifications and represent its best judgment as an experienced and
<br />qualified professional engineer, familiar with the construction industry;
<br />but the Engineer cannot and does not guarantee that proposals, bids or
<br />actual costs will not vary from opinions of probable cost prepared by it
<br />and the Engineer shall have no liability whatsoever if the actual cost
<br />differs from the Engineers estimate. If at any time the Client wishes
<br />greater assurance as to the amount of any cost, he shall employ an
<br />independent cost estimator to make such determination. Engineering
<br />services required to bring costs within any limitation established by the
<br />Client will be paid for as additional services hereunder by the Client
<br />(b) If a limit with respect to construction or other costs is
<br />established by written agreement between the Client and the Engineer,
<br />the following will apply:
<br />(if The acceptance by the Client at any time during the
<br />performance of services hereunder of a revised opinion of probable cost
<br />in excess of the then established cost limit will constitute a corresponding
<br />revision in the previously agreed cost limit to the extent indicated in such
<br />revised opinion
<br />(n) Any cost limit so established will include a contingency of
<br />ten percent unless another amount is agreed upon in writing
<br />(in) The Engineer will be permitted to determine what
<br />materials equipment, component systems and types of construction are
<br />to be included in the drawings and specifications prepared by it pursuant
<br />hereto and to make reasonable adjustments in the extent of the project to
<br />bring it within the cost limit
<br />(iv) If the bidding or negotiating phase of the project has not
<br />commenced within six months after completion of the Engineer's design
<br />hereunder, the established cost limit will not be binding on the Engineer,
<br />and the Client shall consent to an adjustment in such cost limit
<br />commensurate with any applicable change in the general level of prices
<br />in the construction industry between the date of completion of the
<br />IS Consequential Damages. Nobvithstandmg any other provision of
<br />the Agreement, neither party shall be liable to the other for any
<br />consequential damages incurred due to the fault of the other party,
<br />Page I of 4
<br />`v NfKW&CREED
<br />
|