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10.6 CLIENT understands that a Phase I Environmental Site Assessment (ESA) is the possible existence of such a condition. CLIENT agrees it cannot make the resolution of
<br /> conducted solely to permit ECS to render a professional opinion about the likelihood any dispute with ECS or payment of any amount due to ECS contingent upon ECS signing
<br /> of the site having a Recognized Environmental Condition on,in,beneath,or near any such"certification."
<br /> the Site at the time the Services are conducted. No matter how thorough a Phase I
<br /> ESA study may be,findings derived from its conduct are highly limited and ECS 15.0 BILLINGS AND PAYMENTS
<br /> cannot know or stale for an absolute fact that the Site is unaffected or adversely 15.1 Billings will be based on the unit rates,plus travel costs, and other reimbursable
<br /> affected by one or more Recognized Environmental Conditions. CLIENT represents expenses as stated in the Professional Fees section of the Proposal. Any Estimate
<br /> and warrants that it understands the limitations associated with Phase I ESAs. of Professional Fees slated in these Terms shall not be considered as a not-to-
<br /> exceed or lump sum amount unless otherwise explicitly stated. CLIENT
<br /> 11.0 OWNERSHIP OF DOCUMENTS understands and agrees that even if ECS agrees to a lump sum or not-to-exceed
<br /> 11.1 ECS shall be deemed the author and owner(or licensee)of all documents,technical amount,that amount shall be limited to number of hours,visits,trips,tests,borings,
<br /> reports, letters, photos, boring logs, field data, field notes, laboratory lest data, or samples stated in the Proposal.
<br /> calculations, designs, plans, specifications, reports, or similar documents and 15.2 CLIENT agrees that all Professional Fees and other unit rates shall be adjusted
<br /> estimates of any kind furnished by It[the"Documents of Service]and shall retain all annually to account for inflation based on the most recent 12-month average of the
<br /> common law, statutory and other reserved rights, Including copyrights. CLIENT Consumer Price index(CPI-U)for all items as established by www.bls.gov when the
<br /> shall have a limited, non-exclusive license to use copies of the Documents of CPI-U exceeds an annual rate of 2.0%.
<br /> Service provided to it in connection with the Project for which the Documents of 15.3 Should ECS identify a Changed Conditicn(s), ECS shall notify the CLIENT of the
<br /> Service are provided until the completion of the Project. Changed Condition(s). ECS and CLIENT shall promptly and in good faith negotiate
<br /> 11.2 ECS' Services are performed and Documents of Service are provided for the an amendment to the Scope Of Services,Professional Fees,and time schedule.
<br /> CLIENT'S sole use. CLIENT understands and agrees that any use of the 15.4 CLIENT recognizes that lime is of the essence with respect to payment of ECS'
<br /> Documents of Service by anyone other than the CLIENT,it's licensed consultants invoices,and that timely payment is a material consideration for this agreement. All
<br /> and its contractors is not permitted. CLIENT further agrees to indemnify and hold payment shall be in U.S.funds drawn upon U.S,banks and in accordance with the
<br /> ECS harmless for any errors,omissions or damage resulting from its contractors' rates and charges set forth in the Professional Fees. Invoices are due and payable
<br /> use of ECS'Documents of Service. upon receipt.
<br /> 11.3 CLIENT agrees to not use ECS'Documents of Service for the Project if the Project 15.5 11 CLIENT disputes all or part of an invoice,CLIENT shall provide ECS with written
<br /> is subsequently modified in scope,structure or purpose without ECS'prior written notice stating in detail the facts of the dispute within fifteen(15)calendar days of the
<br /> consent. Any reuse without ECS'wri(fen consent shall be at CLIENTS sole risk invoice. CLIENT agrees to pay the undisputed amount of such invoice promptly,
<br /> and without liability to ECS or to ECS' subcontractor(s). CLIENT agrees to
<br /> indemnify and hold ECS harmless for any errors,omissions or damage resulting 15.6 ECS reserves the right to charge CLIENT an additional charge of one-and-one-half
<br /> from its use of ECS'Documents of Service after any modification in scrape,structure (1.5)percent(or the maximum percentage allowed by Law,whichever is lower)of
<br /> or purpose. the invoiced amount per month for any payment received by ECS more than thirty
<br /> 11.4 CLIENT agrees to not make any modification to the Documents of Service without (30) calendar days from the date of the invoice, excepting any portion of the
<br /> the prior written authorization of ECS. To the fullest extent permitted by law, invoiced amount dispute. All payments will be applied t accrued interest first
<br /> and then to the unpaid principal amount. Payment of invoices s shall not be subject
<br /> CLIENT agrees to indemnify,defend,and hold ECS harmless from any damage,
<br /> loss,claim,liability or cost(including reasonable attorneys'fees and defense costs) to unilateral discounting or set-offs by CLIENT.
<br /> arising out of or in connection with any unauthorized modification of the Documents 15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon
<br /> of Service by CLIENT or any person or entity that acquires or obtains the CLIENTS ability to obtain financing,zoning,approval of governmental or regulatory
<br /> Documents of Service from or through CLIENT. CLIENT represents and warrants agencies,permits,final adjudication of a lawsuit,CLIENT'S successful completion
<br /> that the Documents of Service shall be used only as submitted by ECS. of the Project, settlement of a real estate transaction, receipt of payment from
<br /> CLIENTS client, or any other event unrelated to ECS provision of Services.
<br /> 12.0 SAFETY Relainage shall not be withheld from any payment,nor shall any deduction be made
<br /> 12.1 Unless expressly agreed to in writing in its Proposal,CLIENT agrees that ECS shall from any invoice on account of penalty,liquidated damages,or other sums incurred
<br /> have no responsibility whatsoever for any aspect of site safety other than for its own by CLIENT. It is agreed that all costs and legal fees including actual attorney's fees,
<br /> employees. Nothing herein shall be construed to relieve CLIENT and/or its and expenses incurred by ECS in obtaining payment under this Agreement, In
<br /> contractors, consultants or other parties from their responsibility for site safety. perfecting or obtaining a lien, recovery under a bond, collecting any delinquent
<br /> CLIENT also represents and warrants that the General Contractor is solely amounts due,or executing judgments,shall be reimbursed by CLIENT.
<br /> responsible for Project site safety and that ECS personnel may rely on the safely 15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of
<br /> measures provided by the General Contractor. these Terms,payment of any invoice by the CLIENT shall mean that the CLIENT is
<br /> 12.2 In the event ECS assumes in writing limited responsibility for specified safety satisfied with ECS'Services and is not aware of any defects in those Services,
<br /> issues,the acceptance of such responsibilities does not and shall not be deemed an 16.0 DEFECTS IN SERVICE
<br /> acceptance of responsibility for any other non-specified safety issues,including,but
<br /> not limited to those relating to excavating,trenching, shoring,drilling,backfflling, 16.1 CLIENT,its personnel,its consultants,and its contractors shall promptly inform ECS
<br /> blasting,Or other construction activities. during active work on any project of any actual or suspected defects in the Services
<br /> so to permit ECS to take such prompt,effective remedial measures that in ECS'
<br /> 13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES opinion will reduce or eliminate the consequences of any such defective Services.
<br /> 13.1 CLIENT understands that construction testing and observation services are The correction of defects attributable to ECS'failure to perform in accordance with
<br /> provided In an effort to reduce, but cannot eliminate,the risk of problems arising the Standard of Care shall be provided at no cost to CLIENT. However,ECS shall
<br /> not be responsible for the correction of any deficiency attributable to CLIENT-
<br /> during or alter construction or remediation. CLIENT agrees that the provision of
<br /> such Services does not create a warranty or guarantee of any type. furnished information, the errors, omissions, defective materials, or improper
<br /> 13.2 Monitoring and/or testing services provided by ECS shall not In any way relieve the installation of materials by CLIENT's personnel,consultants or contractors,or work
<br /> CLIENT'S contractor(s)from their responsibilities and obligations for the quality or not observed by ECS.CLIENT shall compensate ECS for the costs of correcting
<br /> such detects.
<br /> completeness Of construction as well as their obligation to comply with applicable
<br /> laws,codes,and regulations. 16.2 Modifications to reports,documents and plans required as a result of jurisdictional
<br /> 13.3 ECS has no responsibility whatsoever for the means, methods, techniques, reviews or CLIENT requests shall not be considered to be defects. CLIENT shall
<br /> compensate ECS for the provision of such Services.
<br /> sequencing or procedures of construction selected, for safety precautions and
<br /> programs incidental to work or services provided by any contractor or other 17.0 INSURANCE_ECS represents that It and its subcontractors and subconsultanls
<br /> consultant.ECS does not and shalt not have or accept authority to supervise,direct, maintain Workers Compensation insurance,and that ECS is covered by general liability,
<br /> control, or stop the work of any contractor or consultant or any of their automobile and professional liability insurance policies in coverage amounts it deems
<br /> subcontractors or subconsultants. reasonable and adequate. ECS shall furnish certificates of insurance upon request. The
<br /> 13.4 ECS strongly recommends that CLIENT retain ECS to provide construction CLIENT is responsible for requesting specific inclusions or limits of coverage that are not
<br /> monitoring and testing services on a full time basis to lower the risk of defective or present in ECS insurance package. The cost of such inclusions or coverage increases,if
<br /> incomplete Work being installed by CLIENT'S contractor(s). If CLIENT elects to available,will be at the expense of the CLIENT.
<br /> retain ECS on a part time basis for any aspect of construction monitoring and/or
<br /> testing, CLIENT accepts the risks that a lower level of construction quality may 18.0 LIMITATION OF LIABILITY
<br /> occur and that defective or incomplete work may result and not be detected by ECS' 18.1 CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING
<br /> part lime monitoring and testing. Unless the CLIENT can show that the error or ECS'TOTAL LIABILITY TO CLIENT ARISING FROM ECS' PROFESSIONAL LIABILITY, I.E.
<br /> omission is contained in ECS' reports, CLIENT waives, releases and discharges PROFESSIONAL ACTS,ERRORS,OR OMISSIONS AND FOR ANY AND ALL CAUSES INCLUDING
<br /> ECS from and against any other claims for errors,Omissions,damages,injuries,Or NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY,
<br /> loss alleged to arise from defective or incomplete work that was monitored or tested INJURIES, DAMAGES, CLAIMS, LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING
<br /> by ECS on a part time basis. Except as set forth in the preceding Sentence, REASONABLE ATTORNEY'S FEES)RELATING TO PROFESSIONAL SERVICES PROVIDED UNDER
<br /> CLIENT agrees to indemnify and hold ECS harmless from all damages,costs,and THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. THE ALLOCATION IS AS
<br /> attorneys'fees,for any claims alleging errors,omissions, damage,injury or loss FOLLOWS.
<br /> allegedly resulting from Work that was monitored or tested by ECS on a part time 18.1.1 If the proposed tees are $10,000 or less, ECS' total aggregate liability to
<br /> basis. CLIENT shall not exceed$20,000,or the total fee received for the services
<br /> 14.0 CERTIFICATIONS•CLIENT may request,or governing jurisdictions may require, rendered,whichever Is greater.
<br /> ECS to provide a"certification"regarding the Services provided by ECS. Any"codification" 18.1.2 It the proposed fees are in excess of$10,000,ECS'total aggregate liability to
<br /> required of ECS by the CLIENT or jurisdlctlon(s)having authority over some or all aspects CLIENT shall not exceed$40,000,or the total fee for the services rendered,
<br /> of the Project shall consist of ECS' Inferences and professional opinions based on the whichever is greater.
<br /> limited sampling, observations, tests, and/or analyses performed by ECS a( discrete 18.2 CLIENT agrees that ECS shall not be responsible for any injury,loss or damage of
<br /> locations and times. Such"certifications"shall constitute ECS'professional opinion of a any nature,Including bodily injury and property damage,arising directly or indirectly,
<br /> condition's existence,but ECS does not guarantee that such condition exists,nor does it in whole or in part,from acts or omissions by the CLIENT,its employees,agents,
<br /> relieve other parties of the responsibilities or obligations such parties have with respect to staff,consultants,contractors,or subcontractors to the extent such injury,damage,
<br /> ECS Proposal No:06:17061 Ver.06/04/13
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