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DocuSign Envelope ID:4D07A756-4236-4526-A1 D2-89F0777755FB
<br /> 10.5 Subsurface sampling may result in unavoidable cross-contamination of certain subsurface ECS by the CLIENT or jurisdiction(s)having authority over some or all aspects of the Project shall
<br /> areas,as when a probe or excavation/boring device moves through a contaminated zone and links consist of ECS'inferences and professional opinions based on the limited sampling,observations,
<br /> it to an aquifer,underground stream,pervious soil stratum,or other hydrous body not previously tests,and/or analyses performed by ECS at discrete locations and times. Such"certifications"shall
<br /> contaminated,or connects an uncontaminated zone with a contaminated zone. Because sampling constitute ECS'professional opinion of a condition's existence,but ECS does not guarantee that
<br /> is an essential element of the Services indicated herein,CLIENT agrees this risk cannot be such condition exists,nor does it relieve other parties of the responsibilities or obligations such
<br /> eliminated. Provided such services were performed in accordance with the Standard of Care, parties have with respect to the possible existence of such a condition. CLIENT agrees it cannot
<br /> CLIENT waives,releases and discharges ECS from and against any claim for damage,injury,or loss make the resolution of any dispute with ECS or payment of any amount due to ECS contingent
<br /> allegedly arising from or related to such cross-contamination. upon ECS signing any such"certification."
<br /> 10.6 CLIENT understands that a Phase I Environmental Site Assessment(ESA)is conducted solely 15.0 BILLINGS AND PAYMENTS
<br /> to permit ECS to render a professional opinion about the likelihood of the site having a Recognized
<br /> Environmental Condition on,in,beneath,or near the Site at the time the Services are conducted. 15.1 Billings will be based on the unit rates,plus travel costs,and other reimbursable expenses
<br /> No matter how thorough a Phase I ESA study may be,findings derived from its conduct are highly as stated in the Professional Fees section of the Proposal. Any Estimate of Professional Fees stated
<br /> limited and ECS cannot know or state for an absolute fact that the Site is unaffected or adversely in these Terms shall not be considered as a not-to-exceed or lump sum amount unless otherwise
<br /> affected by one or more Recognized Environmental Conditions. CLIENT represents and warrants explicitly stated. CLIENT understands and agrees that even if ECS agrees to a lump sum or not-to-
<br /> that it understands the limitations associated with Phase I ESAs. exceed amount,that amount shall be limited to number of hours,visits,trips,tests,borings,or
<br /> samples stated in the Proposal.
<br /> 11.0 OWNERSHIP OF DOCUMENTS 15.2 CLIENT agrees that all Professional Fees and other unit rates shall be adjusted annually to
<br /> 11.1 ECS shall be deemed the author and owner(or licensee)of all documents,technical reports, account for inflation based on the most recent 12-month average of the Consumer Price Index
<br /> letters,photos,boring logs,field data,field notes,laboratory test data,calculations,designs,plans, (CPI-U)for all items as established by www.bls.gov when the CPI-U exceeds an annual rate of 2.0%.
<br /> specifications,reports,or similar documents and estimates of any kind furnished by it[the 15.3 Should ECS identify a Changed Condition(s),ECS shall notify the CLIENT of the Changed
<br /> "Documents of Service"]and shall retain all common law,statutory and other reserved rights, Condition(s). ECS and CLIENT shall promptly and in good faith negotiate an amendment to the
<br /> including copyrights. CLIENT shall have a limited,non-exclusive license to use copies of the Scope of Services,Professional Fees,and time schedule.
<br /> Documents of Service provided to it in connection with the Project for which the Documents of 15.4 CLIENT recognizes that time is of the essence with respect to payment of ECS'invoices,and
<br /> Service are provided until the completion of the Project. that timely payment is a material consideration for this agreement. All payment shall be in U.S.
<br /> 11.2 ECS'Services are performed and Documents of Service are provided for the CLIENT'S sole funds drawn upon U.S.banks and in accordance with the rates and charges set forth in the
<br /> use. CLIENT understands and agrees that any use of the Documents of Service by anyone other Professional Fees. Invoices are due and payable upon receipt.
<br /> than the CLIENT,it's licensed consultants and its contractors is not permitted. CLIENT further 15.5 If CLIENT disputes all or part of an invoice,CLIENT shall provide ECS with written notice
<br /> agrees to indemnify and hold ECS harmless for any errors,omissions or damage resulting from its
<br /> contractors'use of ECS'Documents of Service. stating in detail the facts of the dispute within fifteen(15)calendar days of the invoice. CLIENT
<br /> agrees to pay the undisputed amount of such invoice promptly.
<br /> 11.3 CLIENT agrees to not use ECS'Documents of Service for the Project if the Project is
<br /> 15.6 ECS reserves the right to charge CLIENT an additional charge of one-and-one-half(1.5)
<br /> subsequently modified in scope,structure or purpose without ECS'prior written consent. Any percent(or the maximum percentage allowed by Law,whichever is lower)of the invoiced amount
<br /> reuse without ECS'written consent shall be at CLIENT'S sole risk and without liability to ECS or to per month for any payment received by ECS more than thirty(30)calendar days from the date of
<br /> ECS'subcontractor(s). CLIENT agrees to indemnify and hold ECS harmless for any errors,omissions
<br /> or damage resulting from its use of ECS'Documents of Service after any modification in scope, the invoice,excepting any portion of the invoiced amount in dispute. All payments will be applied
<br /> structure or purpose.
<br /> to accrued interest first and then to the unpaid principal amount. Payment of invoices shall not be
<br /> subject to unilateral discounting or set-offs by CLIENT.
<br /> 11.4 CLIENT agrees to not make any modification to the Documents of Service without the prior 15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon CLIENT'S
<br /> written authorization of ECS.To the fullest extent permitted by law,CLIENT agrees to indemnify,
<br /> defend,and hold ECS harmless from any damage,loss,claim,liability or cost(including reasonable ability to obtain financing,zoning,approval of governmental or regulatory agencies,permits,final
<br /> adjudication of a lawsuit,CLIENT'S successful completion of the Project,settlement of a real estate
<br /> attorneys'fees and defense costs)arising out of or in connection with any unauthorized transaction,receipt of payment from CLIENT'S client,or any other event unrelated to ECS provision
<br /> modification of the Documents of Service by CLIENT or any person or entity that acquires or of Services. Retainage shall not be withheld from any payment,nor shall any deduction be made
<br /> obtains the Documents of Service from or through CLIENT. CLIENT represents and warrants that from any invoice on account of penalty,liquidated damages,or other sums incurred by CLIENT. It
<br /> the Documents of Service shall be used only as submitted by ECS. is agreed that all costs and legal fees including actual attorneys fees,and expenses incurred by ECS
<br /> 12.0 SAFETY in obtaining payment under this Agreement,in perfecting or obtaining a lien,recovery under a
<br /> 12.1 Unless expressly agreed to in writing in its Proposal,CLIENT agrees that ECS shall have no bond,collecting any delinquent amounts due,or executing judgments,shall be reimbursed by
<br /> responsibility whatsoever for any aspect of site safety other than for its own employees.Nothing CLIENT.
<br /> herein shall be construed to relieve CLIENT and/or its contractors,consultants or other parties 15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of these Terms,
<br /> from their responsibility for site safety. CLIENT also represents and warrants that the General payment of any invoice by the CLIENT shall mean that the CLIENT is satisfied with ECS'Services and
<br /> Contractor is solely responsible for Project site safety and that ECS personnel may rely on the is not aware of any defects in those Services.
<br /> safety measures provided by the General Contractor. 16.0 DEFECTS IN SERVICE
<br /> 12.2 In the event ECS assumes in writing limited responsibility for specified safety issues,the 16.1 CLIENT,its personnel,its consultants,and its contractors shall promptly inform ECS during
<br /> acceptance of such responsibilities does not and shall not be deemed an acceptance of
<br /> responsibility for any other non-specified safety issues,including,but not limited to those relating active work on any project of any actual or suspected defects in the Services so to permit ECS to
<br /> to excavating, shoring, backfilling, or other construction activities. take such prompt,effective remedial measures that in ECS'opinion will reduce or eliminate the
<br /> g' g' g' g' g' g' consequences of any such defective Services. The correction of defects attributable to ECS'failure
<br /> 13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES to perform in accordance with the Standard of Care shall be provided at no cost to CLIENT.
<br /> 13.1 CLIENT understands that construction testing and observation services are provided in an However,ECS shall not be responsible for the correction of any deficiency attributable to CLIENT-
<br /> furnished information,the errors,omissions,defective materials,or improper installation of
<br /> effort to reduce,but cannot eliminate,the risk of problems arising during or after construction or materials by CLIENT's personnel,consultants or contractors,or work not observed by ECS.CLIENT
<br /> remediation. CLIENT agrees that the provision of such Services does not create a warranty or shall compensate ECS for the costs of correcting such defects.
<br /> guarantee of any type.
<br /> 13.2 Monitoring and/or testing services provided by ECS shall not in any way relieve the CLIENT'S 16.2 Modifications to reports,documents and plans required as a result of jurisdictional reviews
<br /> contractor(s)from their responsibilities and obligations for the quality or completeness of or CLIENT requests shall not be considered to be defects. CLIENT shall compensate ECS for the
<br /> construction as well as their obligation to comply with applicable laws,codes,and regulations. provision of such Services.
<br /> 13.3 ECS has no responsibility whatsoever for the means,methods,techniques,sequencing or 17.0 INSURANCE-ECS represents that it and its subcontractors and subconsultants maintain
<br /> procedures of construction selected,for safety precautions and programs incidental to work or Workers Compensation insurance,and that ECS is covered by general liability,automobile and
<br /> services provided by any contractor or other consultant.ECS does not and shall not have or accept professional liability insurance policies in coverage amounts it deems reasonable and adequate.
<br /> authority to supervise,direct,control,or stop the work of any contractor or consultant or any of ECS shall furnish certificates of insurance upon request.The CLIENT is responsible for requesting
<br /> their subcontractors or subconsultants. specific inclusions or limits of coverage that are not present in ECS insurance package. The cost of
<br /> 13.4 ECS strongly recommends that CLIENT retain ECS to provide construction monitoring and such inclusions or coverage increases,if available,will be at the expense of the CLIENT.
<br /> testing services on a full time basis to lower the risk of defective or incomplete Work being
<br /> installed by CLIENT'S contractor(s). If CLIENT elects to retain ECS on a part time basis for any 18.0 LIMITATION OF LIABILITY
<br /> aspect of construction monitoring and/or testing,CLIENT accepts the risks that a lower level of 18.1 CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING ECS'TOTAL LIABILITY
<br /> construction quality may occur and that defective or incomplete work may result and not be TO CLIENT ARISING FROM ECS'PROFESSIONAL LIABILITY,I.E.PROFESSIONAL ACTS,ERRORS,OR OMISSIONS AND FOR ANY
<br /> detected by ECS'part time monitoring and testing. Unless the CLIENT can show that the error or AND ALL CAUSES INCLUDING NEGLIGENCE,STRICT LIABILITY,BREACH OF CONTRACT,OR BREACH OF WARRANTY,INJURIES,
<br /> omission is contained in ECS'reports,CLIENT waives,releases and discharges ECS from and against DAMAGES,CLAIMS,LOSSES,EXPENSES,OR CLAIM EXPENSES(INCLUDING REASONABLE ATTORNEY'S FEES)RELATING TO
<br /> any other claims for errors,omissions,damages,injuries,or loss alleged to arise from defective or PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW.THE
<br /> incomplete work that was monitored or tested by ECS on a part time basis. Except as set forth in ALLOCATION IS AS FOLLOWS.
<br /> the preceding sentence,CLIENT agrees to indemnify and hold ECS harmless from all damages, 18.1.1 If the proposed fees are$10,000 or less,ECS'total aggregate liability to CLIENT shall not
<br /> costs,and attorneys'fees,for any claims alleging errors,omissions,damage,injury or loss allegedly exceed$20,000,or the total fee received for the services rendered,whichever is greater.
<br /> resulting from Work that was monitored or tested by ECS on a part time basis. 18.1.2 If the proposed fees are in excess of$10,000,ECS'total aggregate liability to CLIENT shall
<br /> 14.0 CERTIFICATIONS-CLIENT may request,or governing jurisdictions may require,ECS to not exceed$40,000,or the total fee for the services rendered,whichever is greater.
<br /> provide a"certification"regarding the Services provided by ECS. Any"certification"required of
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