041
<br />McKim & Creed, P.A.
<br />General Conditions
<br />(3/2002-1)
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<br />Engineer's design hereunder and the date on whidt proposals or bids are
<br />sought.
<br />(v) If the lowest bona fide proposal or bid exceeds the
<br />established cost limit, the Client shall (1) give written approval to
<br />increase such cost limit, (2) authorize negotiating or rebidding the project
<br />within a reasonable time, or (3) cooperate in revising the prefect's extent
<br />or quality_ In the case of (3), the Engineer shall, without additional
<br />charge, modify the plans and specifications prepared by it hereunder as
<br />necessary to bring the subject cost within cost limit_ The providing of
<br />such service will be the limit of the Engineers responsibility in this
<br />regard and having done so, the Engineer shall be entitled to payment for
<br />his services in accordance with this Agreement.
<br />Termination. The obligation to provide further services under this
<br />Agreement may be terminated by either party upon seven (7) days
<br />written notice in the event of substantial failure by the other party to
<br />perform in accordance with the terms hereof through no fault of the
<br />terminating party. In the event of any termination, the Engineer shall
<br />provide a final statement of charges due and will be paid for all services
<br />tendered to the date of termination, all expenses subject to
<br />reimbursement hereundeq and other reasonable expenses incurred by
<br />the Engineer as a result of such termination. In the event the Englm-rr's
<br />compensation under this Agreement is a fixed fee, upon such
<br />termination the amount payable to the Engineer for services rendered
<br />.vill be determined using a proportional amount of the total fee based on
<br />a ratio of the amount of the work done, as reasonably determined by the
<br />Engineer, to the total amount of work which was to have been
<br />performed, less prior partial payments, if any, which have been made.
<br />Reuse of Documents. All documents, including but not limited to
<br />drawings and specifications, prepared by the Engineer pursuant to this
<br />Agreement are related exclusively to the services described herein. They
<br />arc not intended or represented to be suitable for reuse by the Client ur
<br />others on extensions of this project or on any other project. Any muse
<br />without written verification or adaptation by the Engineer for specific
<br />purposes intended will be at the Client's sole risk and without liability or
<br />legal exposure to the Engineer, and the Client releases and shall
<br />indemnify and hold the Engineer harmless from all claims, damages,
<br />losses and expenses, including but not limited to attorneys' fees, arising
<br />out of or resulting there from. Any such verification or adaptation will
<br />entitle the Engineer to further compensafion at rates to be agreed upon
<br />by the Client and the Engineer.
<br />Liability. The F,ngineer is protected by Workmen's Compensation
<br />Insurance (and/or employers liability insurance), professional liability
<br />insurance, and by public liability insurance for bodily injury and property
<br />damage and will furnish certificates of resuranne upon request The
<br />Engineer agrees to compensate the Client for loss, damage, injury ut
<br />liability arising directly and exclusively from the negligent acts or
<br />omissionsof the Engineer, itsemployees, agent, subcontractors and their
<br />employees and agents but only to the extent that the same is actually
<br />covered and paid under the foregoing policies of insurance. ]fine Client
<br />requires increased insurance coverage, the Engineer will, if specifically
<br />directed by the Client, take out additional insurance, if obtainable, at the
<br />Client's expense
<br />Limitation of Liability. In performing its professional services
<br />hereunder, the Engineer will use that degree of care and skill ordinarily
<br />exerdsed, under similar circumstances, by reputable members of its
<br />profession practicing in the same or similar locality. No other warranty,
<br />express or implied, is made or intended by the Engineers undertaking
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<br />herein or its performance of services hereunder. THE CLIENT
<br />UNDERSTANDS AND AGREES THAT THE ENGINEER HAS NOT
<br />MADE AND IS NOT MAKING ANY PROMISE, WARRANTY OR
<br />REPRESENLATION EXCEPT THE W ARRAN'NES EXPRESSLY MADE
<br />HEREIN, AND 'IHE ENGINEER EXPRESSLY DISCLAIMS ANY
<br />WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
<br />PARTICULAR PURPOSE OR ANY OTHER IMPLIED WARRANTIES.
<br />It is agreed that, in accordance with and subject to the provisions of the
<br />foregoing paragraph (Liability) and this paragraph, any claim for
<br />damages, cost of defense, or expenses which the Client or any third party
<br />may assort against the Engineer on account of any and all design defects,
<br />errors, omissions, and professional negligence shall be limited to the
<br />amount of its policy limits under any policy or policies of professional
<br />liability insurance maintained by the Engineer_ Under no circumstances
<br />shall the Engineer be liable for extra costs or other consequences due to
<br />changed conditions or for costs related to the failure of the contractor or
<br />material men to install work in accordanre with the plans and
<br />specifications_ The limitation of liability to the limits of the Engineer's
<br />insurance policv is a specifically bargained-fur provision of this
<br />agreement, reflected in Engineer's fee. The Engineer shall not be liable
<br />for errors in judgment or for any loss or damage, which occurs for any
<br />reason beyond the control of the Engineer. No action may be instituted
<br />hereunder more than one year after the cause of action accrued or should
<br />have been discovered by reasonable diligence I he provisions of this
<br />paragraph and the previous paragraph (Liability) shall survive the
<br />termination of this Agreement.
<br />Client initials
<br />Expenses of Litigation. In the event litigation in any way related to the
<br />services performed hereunder is initiated against the Engineer by the
<br />Client, its contractors, or subcontractors, and such litigation concludes
<br />with the entry of a final judgment favorable to the Engineer, the Client
<br />shall reimburse the Engineer for all of its reasonable attorneys' fees and
<br />other expenses related to said litigation. Such expenses shall include, but
<br />shall not be limited to, the cost, determined at the Engineer's normal
<br />hourly billing rates, of the time devoted to the defense of such litigation
<br />by the Engineer's employees.
<br />Controlling Law. This Agreement is to be governed by the law of the
<br />State of North Carolina. The parties agree that any suit or action related
<br />to this Agreement shall be instituted and prosecuted in the courts of the
<br />County of New Hanover, State of North Carolina, and each party waives
<br />any right or defense relining to such jurisdiction or venue.
<br />Binding Effect. This Agreement shall bind, and the benefits thereof
<br />shall more to the respective parties hereto, their legal representatives,
<br />executors, administrators, successors and permitted assigns.
<br />Merger; Amendment. This Agreement constitutes the entire agreement
<br />between the Engineer and the Client with respect to its subject matter,
<br />and all negotiations and oral understandings behvecn the parties are
<br />merged herein. This Agreement can be supplemented and/or amended
<br />only by a written document executed by both the Engineer and the
<br />Client.
<br />Ownership of Instruments Of Service. All reports, plans,
<br />specifications, field data, notes and other documents, including all
<br />documents on electronic media, prepared by the Engineer as instruments
<br />of service shall remain the property of the Engineer. The Engineer shall
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