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DocuSign Envelope ID:2B387EC1-ED80-46E6-BC22-4F91ABE452FB
<br /> 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 state 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 stated in these Terms shall not be considered as a not-to-
<br /> exceed OWNERSHIP OF DOCUMENTS exceed or lump sum amount unless otherwise explicitly stated. CLIENT
<br /> 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 test 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 Condition(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 time is of the essence with respect to payment of ECS'
<br /> Documents of Service by anyone other than the CLIENT, its 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 If 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'written consent shall be at CLIENT'S 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 scope.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 in dispute. All payments will be applied to accrued interest first
<br /> CLIENT agrees to indemnify,defend, and hold ECS harmless from any damage, and then to the unpaid principal amount. Payment of invoices shall not be subject
<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 CLIENT'S 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 /> CLIENT'S client, or any other event unrelated to ECS provision of Services.
<br /> 12.0 SAFETY Retainage 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 safety 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. backfilling. 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 /> during or after construction or remediation. CLIENT agrees that the provision of not be responsible for the correction of any deficiency attributable to CLIENT-
<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 defects.
<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 /> sequencing or procedures of construction selected, for safety precautions and compensate ECS for the provision of such Services.
<br /> programs incidental to work or services provided by any contractor or other 17.0 INSURANCE- ECS represents that it and its subcontractors and subconsultants
<br /> consultant.ECS does not and shall 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 time 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 fees 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"certification" 18.1.2 If the proposed fees are in excess of$10,000,ECS'total aggregate liability to
<br /> required of ECS by the CLIENT or jurisdiction(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 at 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. 06:20542-GP Page 2 of 3 Ver.06/04/13
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