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041 <br />McKim & Creed, P.A. <br />General Conditions <br />(3/2002-1) <br />is <br />ta=i <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 <br />Page 2 of <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 <br />4 MzIQM&CR= <br />