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<br /> Terms and Conditions of Service
<br /> The professional services(the"Services")to be provided by ECS Southeast,LLP ["ECS"]pursuant to 7.4 CLIENT agrees that it will not bring any claims for liability or for injury or loss against ECS
<br /> the Proposal shall be provided in accordance with these Terms and Conditions of Service('Terms"), arising from(i)procedures associated with the exploration,sampling or testing activities at the
<br /> including any addenda as may be incorporated or referenced in writing shall form the Agreement Site,(ii)discovery of Hazardous Materials or suspected Hazardous Materials,or(iii)ECS'findings,
<br /> between ECS and Orange County Government(Client). conclusions, opinions, recommendations, plans, and/or specifications related to discovery of
<br /> 1.0 INDEPENDENT CONSULTANT STATUS - ECS shall serve as an independent professional contamination.
<br /> consultant to CLIENT for Service on the Project,identified above,and shall have control over,and 8.0 UNDERGROUND UTILITIES
<br /> responsibility for,the means and methods for providing the Services identified in the Proposal, 8.1 ECS shall exercise the Standard of Care in evaluating client-furnished information as well as
<br /> including the retention of Subcontractors and Subconsultants. information readily and customarily available from public utility locating services(the"Underground
<br /> 2.0 SCOPE OF SERVICES-It is understood that the fees,reimbursable expenses and time schedule Utility Information")in its effort to identify underground utilities.The extent of such evaluations
<br /> defined in the Proposal are based on information provided by CLIENT and/or CLIENT'S contractors shall be at ECS'sole discretion.
<br /> and consultants.CLIENT acknowledges that if this information is not current, is incomplete or 8.2 CLIENT recognizes that the Underground Utility Information provided to or obtained by ECS
<br /> inaccurate,if conditions are discovered that could not be reasonably foreseen,or if CLIENT orders may contain errors or be incomplete.CLIENT understands that ECS may be unable to identify the
<br /> additional services,the scope of services will change,even while the Services are in progress. locations of all subsurface utility lines and man-made features.
<br /> 3.0 STANDARD OF CARE 8.3 CLIENT waives,releases,and discharges ECS from and against any claim for damage,injury
<br /> 3.1 In fulfilling its obligations and responsibilities enumerated in the Proposal,ECS shall be expected or loss allegedly arising from or related to subterranean structures(pipes,tanks,cables,or other
<br /> to comply with and its performance evaluated in light of the standard of care expected of utilities,etc.)which are not called to ECS'attention in writing by CLIENT,not correctly shown on
<br /> professionals in the industry performing similar services on projects of like size and complexity at the Underground Utility Information and/or not properly marked or located by the utility owners,
<br /> that time in the region(the"Standard of Care").Nothing contained in the Proposal,the agreed-upon governmental or quasi-governmental locators,or private utility locating services as a result of ECS'
<br /> scope of Services,these Terms and Conditions of Service or any ECS report,opinion,plan or other or ECS'subcontractor's request for utility marking services made in accordance with local industry
<br /> document prepared by ECS shall constitute a warranty or guaranty of any nature whatsoever. standards.
<br /> 3.2 CLIENT understands and agrees that ECS will rely on the facts learned from data gathered during 9.0 SAMPLES
<br /> performance of Services as well as those facts provided by the CLIENT.CLIENT acknowledges that 9.1 Soil,rock,water,building materials and/or other samples and sampling by-products obtained
<br /> such data collection is limited to specific areas that are sampled,bored,tested,observed and/or from the Site are and remain the property of CLIENT.Unless other arrangements are requested
<br /> evaluated.Consequently,CLIENT waives any and all claims based upon erroneous facts provided by CLIENT and mutually agreed upon by ECS in writing,ECS will retain samples not consumed in
<br /> by the CLIENT,facts subsequently learned or regarding conditions in areas not specifically sampled, laboratory testing for up to sixty(60)calendar days after the issuance of any document containing
<br /> bored,tested,observed or evaluated by ECS. data obtained from such samples.Samples consumed by laboratory testing procedures will not be
<br /> 3.3 If a situation arises that causes ECS to believe compliance with CLIENT'S directives would be stored.
<br /> contrary to sound engineering practices,would violate applicable laws,regulations or codes,or will 9.2 Unless CLIENT directs otherwise,and excluding those issues covered in Section 10.0,CLIENT
<br /> expose ECS to legal claims or charges,ECS shall so advise CLIENT.If ECS'professional judgment authorizes ECS to dispose of CLIENT'S non-hazardous samples and sampling or testing process
<br /> is rejected,ECS shall have the right to terminate its Services in accordance with the provisions of by-products in accordance with applicable laws and regulations.
<br /> Section 25.0,below. 10.0 ENVIRONMENTAL RISKS
<br /> 3.4 If CLIENT decides to disregard ECS'recommendations with respect to complying with applicable 10.1 When Hazardous Materials are known,assumed,suspected to exist,or discovered at the Site,
<br /> Laws or Regulations,ECS shall determine if applicable law requires ECS to notify the appropriate ECS will endeavor to protect its employees and address public health,safety,and environmental
<br /> public officials.CLIENT agrees that such determinations are ECS'sole right to make. issues in accordance with the Standard of Care.CLIENT agrees to compensate ECS for such efforts.
<br /> 4.0 CLIENT DISCLOSURES 10.2 When Hazardous Materials are known,assumed,or suspected to exist,or discovered at the
<br /> 4.1 Where the Scope of Services requires ECS to penetrate a Site surface,CLIENT shall furnish and/ Site,ECS and/or ECS'subcontractors will exercise the Standard of Care in containerizing and labeling
<br /> or shall direct CLIENT'S consultant(s)or agent(s)to furnish ECS information identifying the type such Hazardous Materials in accordance with applicable laws and regulations,and will leave the
<br /> and location of utility lines and other man-made objects known,suspected,or assumed to be containers on Site.CLIENT is responsible for the retrieval,removal,transport and disposal of such
<br /> located beneath or behind the Site's surface.ECS shall be entitled to rely on such information for contaminated samples,and sampling process byproducts in accordance with applicable law and
<br /> completeness and accuracy without further investigation,analysis,or evaluation. regulation.
<br /> 4.2"Hazardous Materials"shall include but not be limited to any substance that poses or may pose 10.3 Unless explicitly stated in the Scope of Services,ECS will neither subcontract for nor arrange
<br /> a present or potential hazard to human health or the environment whether contained in a product, for the transport,disposal,or treatment of Hazardous Materials.At CLIENT'S written request,ECS
<br /> material,by-product,waste,or sample,and whether it exists in a solid,liquid,semi-solid or gaseous may assist CLIENT in identifying appropriate alternatives for transport,off-site treatment,storage,
<br /> form.CLIENT shall notify ECS of any known,assumed,or suspected regulated,contaminated,or or disposal of such substances,but CLIENT shall be solely responsible for the final selection of
<br /> other similar Hazardous Materials that may exist at the Site prior to ECS mobilizing to the Site. methods and firms to provide such services.CLIENT shall sign all manifests for the disposal of
<br /> 4.3 If any Hazardous Materials are discovered,or are reasonably suspected by ECS after its Services substances affected by contaminants and shall otherwise exercise prudence in arranging for lawful
<br /> begin, ECS shall be entitled to amend the scope of Services and adjust its fees to reflect the disposal.
<br /> additional work or personal protective equipment and/or safety precautions required by the 10.4 In those instances where ECS is expressly retained by CLIENT to assist CLIENT in the disposal
<br /> existence of such Hazardous Materials. of Hazardous Materials,samples,or wastes as part of the Proposal,ECS shall do so only as CLIENT'S
<br /> 5.0 INFORMATION PROVIDED BY OTHERS-CLIENT waives,releases and discharges ECS from and agent(notwithstanding any other provision of this AGREEMENT to the contrary). ECS will not
<br /> against any claim for damage,injury or loss allegedly arising out of or in connection with errors, assume the role of,nor be considered a generator,storer,transporter,or disposer of Hazardous
<br /> omissions,or inaccuracies in documents and other information in any form provided to ECS by Materials.
<br /> CLIENT or CLIENT's agents,contractors,or consultants,including such information that becomes 10.5 Subsurface sampling may result in unavoidable cross-contamination of certain subsurface
<br /> incorporated into ECS documents. areas,as when a probe or excavation/boring device moves through a contaminated zone and
<br /> 6.0 CONCEALED RISKS-CLIENT acknowledges that special risks are inherent in sampling,testing links it to an aquifer, underground stream, pervious soil stratum,or other hydrous body not
<br /> and/or evaluating concealed conditions that are hidden from view and/or neither readably previously contaminated,or connects an uncontaminated zone with a contaminated zone.Because
<br /> apparent nor easily accessible,e.g.,subsurface conditions,conditions behind a wall,beneath a sampling is an essential element of the Services indicated herein,CLIENT agrees this risk cannot
<br /> floor,or above a ceiling.Such circumstances require that certain assumptions be made regarding be eliminated.Provided such services were performed in accordance with the Standard of Care,
<br /> existing conditions,which may not be verifiable without expending additional sums of money CLIENT waives,releases and discharges ECS from and against any claim for damage,injury,or loss
<br /> or destroying otherwise adequate or serviceable portions of a building or component thereof. allegedly arising from or related to such cross-contamination.
<br /> Accordingly,ECS shall not be responsible for the verification of such conditions unless verification 10.6 CLIENT understands that a Phase I Environmental Site Assessment(ESA)is conducted solely
<br /> can be made by simple visual observation.Client agrees to bear any and all costs,losses,damages to permit ECS to render a professional opinion about the likelihood of the site having a Recognized
<br /> and expenses(including,but not limited to,the cost of ECS'Additional Services)in any way arising Environmental Condition on,in,beneath,or near the Site at the time the Services are conducted.
<br /> from or in connection with the existence or discovery of such concealed or unknown conditions. No matter how thorough a Phase I ESA study may be,findings derived from its conduct are highly
<br /> 7.0 RIGHT OF ENTRY/DAMAGE RESULTING FROM SERVICES limited and ECS cannot know or state for an absolute fact that the Site is unaffected or adversely
<br /> 7.1 CLIENT warrants that it possesses the authority to grant ECS right of entry to the Site for the affected by one or more Recognized Environmental Conditions.CLIENT represents and warrants
<br /> performance of Services.CLIENT hereby grants ECS and its subcontractors and/or agents,the right that it understands the limitations associated with Phase I ESAs.
<br /> to enter from time to time onto the property in order for ECS to perform its Services.CLIENT agrees 11.0 OWNERSHIP OF DOCUMENTS
<br /> to indemnify and hold ECS harmless from any claims arising from allegations that ECS trespassed 11.1 ECS shall be deemed the author and owner(or licensee)of all documents,technical reports,
<br /> or lacked authority to access the Site. letters,photos,boring logs,field data,field notes,laboratory test data,calculations,designs,plans,
<br /> 7.2 CLIENT warrants that it possesses all necessary permits,licenses and/or utility clearances for specifications, reports, or similar documents and estimates of any kind furnished by it [the
<br /> the Services to be provided by ECS except where ECS'Proposal explicitly states that ECS will obtain "Documents of Service"]and shall retain all common law, statutory and other reserved rights,
<br /> such permits,licenses,and/or utility clearances. including copyrights. CLIENT shall have a limited, non-exclusive license to use copies of the
<br /> 7.3 ECS will take reasonable precautions to limit damage to the Site and its improvements during Documents of Service provided to it in connection with the Project for which the Documents of
<br /> the performance of its Services.CLIENT understands that the use of exploration,boring,sampling, Service are provided until the completion of the Project.
<br /> or testing equipment may cause minor, but common,damage to the Site.The correction and 11.2 ECS'Services are performed and Documents of Service are provided for the CLIENT'S sole
<br /> restoration of such common damage is CLIENT'S responsibility unless specifically included in ECS' use.CLIENT understands and agrees that any use of the Documents of Service by anyone other
<br /> Proposal. than the CLIENT, it's licensed consultants and its contractors is not permitted.CLIENT further
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