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CLIENT will not hold ECS liable for such cross-contamination if ECS provides its 15.0 BILLINGS AND PAYMENTS
<br /> Services in accordance with the applicable Standard of Care. 15.1 Billings will be based on the unit rates, travel costs, and other reimbursable
<br /> 10.7 CLIENT understands that a Phase I Environmental Site Assessment(ESA) is expenses stated in the Professional Fees. Any Estimate of Professional Fees
<br /> conducted solely to permit ECS to render a professional opinion about the stated in this AGREEMENT shall not be considered as a not-to-exceed or lump
<br /> likelihood of the site having a Recognized Environmental Condition on, in, sum amount unless otherwise explicitly stated in this AGREEMENT.
<br /> beneath,or near the Site at the time the Services are conducted. No matter how 15.2 Should ECS identify a Changed Condition,ECS shall notify the CLIENT of the
<br /> thorough a Phase I ESA study may be,findings derived from its conduct are Changed Condition(s)that in ECS'professional judgment require an amendment
<br /> highly limited and ECS cannot know or state for an absolute fact that the Site is of the Professional Fees,time schedule,and/or Scope of Services. ECS and
<br /> unaffected by one or more Recognized Environmental Conditions. Given the CLIENT shall promptly and in good faith negotiate an amendment to this
<br /> foregoing,CLIENT'S acceptance of this AGREEMENT shall signify that CLIENT AGREEMENT.
<br /> understands the limitations associated with Phase I ESAs.
<br /> 15.3 CLIENT recognizes that time is of the essence with respect of payment of ECS'
<br /> 11.0 OWNERSHIP OF DOCUMENTS invoices,and that timely payment is a material part of the consideration of this
<br /> 11.1 With the exception of the copies of the ECS Documents of Service provided to AGREEMENT. Payment shall be in U.S.funds drawn upon U.S.banks and in
<br /> the CLIENT,all documents,technical reports,letters,photos,boring logs,field accordance with the rates and charges set forth in the Professional Fees.
<br /> data,field notes,laboratory test data,calculations,designs,plans,specifications, Invoices shall be due and payable upon receipt.
<br /> reports, or similar documents and estimates of any kind furnished by ECS 15.41f CLIENT disputes all or part of an invoice, CLIENT shall provide ECS with
<br /> ["Documents of Service"]maintained in any form deemed appropriate by ECS, written notice stating in detail the facts of the dispute within twenty-one (21)
<br /> are and remain,the property of ECS. calendar days of the invoice date and agrees to pay the undisputed amount of
<br /> 11.2 Any exploration,reconnaissance,data review,observations,testing,surveys or such invoice promptly.
<br /> similar Services,analyses and recommendations associated with the Services 15.5 ECS reserves the right to charge CLIENT an additional charge of one-and-one-
<br /> shall be provided by ECS(including subcontracted Services)for the CLIENT'S half(1.5)percent(or the maximum percentage allowed by Law,whichever is
<br /> sole use. CLIENT understands and agrees that any use of the Documents of lower)of the invoiced amount per month for any payment received by ECS more
<br /> Service by anyone other than the CLIENT is not permitted. than thirty(30)calendar days from the date of the invoice,excepting any portion
<br /> 11.3 CLIENT agrees to not use ECS'Documents of Service for any other projects,or of the invoiced amount in dispute and resolved in favor of CLIENT. Payment Will
<br /> for the Project which has changed in scope,or extensions of the Project,from the first be applied to accrued interest and then to the unpaid principal amount.
<br /> details contemplated in ECS'Documents of Service. Any reuse without ECS' Payment of invoices shall not be subject to unilateral discounting or set-offs by
<br /> written consent shall be at CLIENT'S sole risk and without liability to ECS or to CLIENT.
<br /> ECS'subcontractor(s). 15.6 CLIENT agrees that its obligation to pay for the Services is not contingent upon
<br /> 11.4 CLIENT agrees that ECS' Documents of Service may not under any CLIENT'S ability to obtain financing, zoning, approval of governmental or
<br /> circumstances be altered by any party except ECS. CLIENT warrants that ECS' regulatory agencies,permits,final adjudication of a lawsuit in which ECS is not
<br /> Documents of Service shall be used only and exactly as submitted by ECS. involved,upon CLIENT'S successful completion of the Project,settlement of a
<br /> real estate transaction, receipt of payment from CLIENT'S client, or any other
<br /> 11.5 Except for daily field reports and concrete test reports sent electronically by ECS event. Retainage shall not be withheld from any payment, nor shall any
<br /> to CLIENT and CLIENT'S designees,the following shall apply to all electronic deduction be made from any invoice on account of penalty,liquidated damages,
<br /> files: Files in electronic media format of text,data,graphics,or other types that or other sums incurred by CLIENT. It is agreed that all costs and legal fees
<br /> are furnished by ECS are furnished only for convenience, not reliance by the including actual attorney's fees,and expenses incurred by ECS in enforcing any
<br /> receiving party. Any conclusion or information obtained or derived from such provision of the AGREEMENT,in perfecting or obtaining a lien,recovery under a
<br /> electronic files will be at the user's sole risk. If there is a discrepancy between bond,collecting any delinquent amounts due,or executing judgments,shall be
<br /> the electronic files and the hard copies,the hard copies shall govern. reimbursed by CLIENT.
<br /> 12.0 SAFETY 15.7 Payment of any invoice by the CLIENT shall be taken to mean that the CLIENT
<br /> 12.1 CLIENT agrees that ECS is responsible solely for the basic safety of ECS' agrees to the provisions of the AGREEMENT and is satisfied with ECS'Services
<br /> employees on the Project Site. These responsibilities shall not be inferred by and is not aware of any defects in those Services,unless CLIENT has provided
<br /> any party to mean that ECS has responsibility for any portion of site safety for notice to ECS in accordance with the DEFECTS IN SERVICE provisions of this
<br /> any reason. Unless otherwise expressly agreed to in writing, ECS' Scope of AGREEMENT.
<br /> Services excludes responsibility for any aspect of site safety other than for ECS' 16.0 DEFECTS IN SERVICE
<br /> own employees,and nothing herein shall be construed to relieve CLIENT and/or
<br /> its other contractors,consultants,or other parties from their responsibility for the 16.1 CLIENT and CLIENT'S personnel and contractors shall promptly inform ECS of
<br /> safety of their own employees. For active construction sites, CLIENT also any actual or suspected defects in ECS' Services, to help ECS take those
<br /> agrees that the General Contractor is solely responsible for Project Site safety, prompt,effective measures that in ECS'opinion will help reduce or eliminate the
<br /> and that ECS personnel rely on the safety measures provided by the General consequences of any such defect. Corrections of defects attributable to ECS'
<br /> Contractor. Services shall be provided at no cost to CLIENT,except in the case that the
<br /> deficiency is directly attributable to CLIENT-fumished information,CLIENT shall
<br /> 12.2 In the event ECS expressly assumes health and safety responsibilities for toxic compensate ECS for the costs of correcting such defects.
<br /> or other concerns specified,the acceptance of such responsibility does not and 16.2 Modifications to reports, documents and plans required as a result of
<br /> shall not be deemed an acceptance of responsibility for any other health and
<br /> safety requirements, such as those relating to excavating,trenching,shoring, jurisdictional reviews or CLIENT requests shall not be considered to be defects in
<br /> drilling,backfilling,blasting,or other construction activities. Services. CLIENT shall compensate ECS for Additional Services required as a
<br /> result of jurisdictional review requirements.
<br /> 13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES 17,0 INSURANCE
<br /> 13.1 CLIENT understands that construction testing and observation Services are
<br /> conducted to reduce,not eliminate,the risk of problems arising during or after 17.1 ECS represents that it and its subcontractors and subconsultants are protected
<br /> construction or remediation,and that provision of such Services does not create by Workers Compensation insurance, and that ECS is covered by general
<br /> a warranty or guarantee of any type. liability,automobile and professional liability insurance policies which it deems
<br /> 13.2 Monitoring and/or testing Services provided by ECS shall not in any way relieve reasonable and adequate.
<br /> the CLIENTS contractor(s) from their responsibilities and obligations for the 17.2 ECS shall furnish certificates of insurance upon request. The CLIENT is
<br /> quality or completeness of construction,nor for complying with applicable Laws responsible for requesting specific inclusions or limits of coverage that are not
<br /> and codes. present in ECS insurance,the cost of such inclusions or coverage increases,if
<br /> 13.3 The professional activities of ECS, or the presence of ECS employees and available,will be at the expense of the CLIENT.
<br /> subcontractors,shall not be construed to imply ECS has any responsibility for the 18.0 LIMITATION OF LIABILITY
<br /> means, methods, techniques, sequencing Of construction, or procedures Of 18.1 CLIENT AGREES TO ALLOCATE CERTAIN OF THE RISKS ASSOCIATED WITH THE PROJECT
<br /> construction selected, for safety precautions and programs incidental to the BY LIMITING ECS'TOTAL LIABILITY To CLIENT, SUBJECT TO AVAILABLE INSURANCE
<br /> Contractor's Work. Furthermore, ECS does not and shall not have or accept PROCEEDS,ARISING FROM ECS'PROFESSIONAL ACTS,ERRORS,OR OMISSIONS AND FOR
<br /> authority to supervise,direct,control,or stop Contractor's Work. ANY AND ALL CAUSES INCLUDING NEGLIGENCE,STRICT LIABILITY,BREACH OF CONTRACT,
<br /> 13.4 ECS strongly recommends that CLIENT retain ECS to provide its Services on a OR BREACH OF WARRANTY,INJURIES,DAMAGES,CLAIMS,LOSSES,EXPENSES,OR CLAIM
<br /> full time basis to lower the risk of defective or incomplete Work being installed by EXPENSES(INCLUDING REASONABLE ATTORNEY'S FEES) UNDER THIS AGREEMENT TO
<br /> CLIENT'S contractor(s). If CLIENT elects to retain ECS on a part time basis for THE FULLEST EXTENT PERMITTED BY LAW,AS FOLLOWS. For projects where ECS'Fee
<br /> any aspect of construction monitoring and/or testing, CLIENT accepts the Estimate or proposed fees are:
<br /> increased risks that a significantly lower level of construction quality may occur 18,1,1 $10,000 or less,ECS'total aggregate liability to CLIENT shall not exceed
<br /> and that such defects may not be undetected by ECS'part time observations. $5,000,or the total fee for the services rendered,whichever is greater.
<br /> Therefore CLIENT waives any and all claims against ECS related to
<br /> unsatisfactory quality or performance of elements observed or tested by ECS on 18.1.2 In excess of$10,000, ECS' total aggregate liability to CLIENT shall not
<br /> a part time basis. exceed $50,000, or the total fee for the services rendered, whichever is
<br /> greater.
<br /> 14.0 CERTIFICATIONS 18.2 CLIENT agrees that ECS shall not be responsible for bodily injury and property
<br /> 14.1 CLIENT may request,or governing jurisdictions may require,ECS to provide a damage or losses arising directly or indirectly,in whole or in part,from acts or
<br /> "certification"regarding Services provided by ECS. Any"Certification"required of omissions by the CLIENT, its employees, agents, staff, consultants or
<br /> ECS by the CLIENT,or jurisdiction(s)having authority over some or all aspects subcontractors or by any other person or combination of persons to the extent
<br /> of the Project,shall consist of ECS'inferences and professional opinions based such injury, damage, or loss is caused by acts or omissions of CLIENT, its
<br /> on limited sampling,observations,tests,and/or analyses performed by ECS at employees,agents,staff,consultants or subcontractors.
<br /> discrete locations and times. ECS' "certification" shall consist of ECS'
<br /> professional opinion of a condition's existence,but ECS does not guarantee that 19.0 INDEMNIFICATION
<br /> such condition exists, nor does it relieve other parties of responsibilities or 19.1 ECS agrees,subject to the limitation of liability provisions of this AGREEMENT,
<br /> obligations such parties have. CLIENT agrees not to make resolution of any to hold harmless and indemnify CLIENT from and against damages arising from
<br /> dispute with ECS or payment of any amount due to ECS in any way contingent ECS'negligent performance of its Services to the extent that such injury is found
<br /> upon ECS signing any such"certification"documents.
<br /> ECS Proposal No: Page 2 of 3 Ver.03-03-06
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