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DocuSign Envelope ID: 59E8E223- 3519- 4CD9- B63D- 6B5A82C32C26
<br />10.5 Subsurface sampling may result in unavoidable cross - contamination of certain subsurface
<br />areas, as when a probe or excavation /boring device moves through a contaminated zone and links
<br />it to an aquifer, underground stream, pervious soil stratum, or other hydrous body not previously
<br />contaminated, or connects an uncontaminated zone with a contaminated zone. Because sampling
<br />is an essential element of the Services indicated herein, CLIENT agrees this risk cannot be
<br />eliminated. Provided such services were performed in accordance with the Standard of Care,
<br />CLIENT waives, releases and discharges ECS from and against any claim for damage, injury, or loss
<br />allegedly arising from or related to such cross - contamination.
<br />10.6 CLIENT understands that a Phase I Environmental Site Assessment (ESA) is conducted solely
<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.
<br />No matter how thorough a Phase I ESA study may be, findings derived from its conduct are highly
<br />limited and ECS cannot know or state for an absolute fact that the Site is unaffected or adversely
<br />affected by one or more Recognized Environmental Conditions. CLIENT represents and warrants
<br />that it understands the limitations associated with Phase I ESAs.
<br />11.0 OWNERSHIP OF DOCUMENTS
<br />11.1 ECS shall be deemed the author and owner (or licensee) of all documents, technical reports,
<br />letters, photos, boring logs, field data, field notes, laboratory test data, calculations, designs, plans,
<br />specifications, reports, or similar documents and estimates of any kind furnished by it [the
<br />"Documents of Service "] and shall retain all common law, statutory and other reserved rights,
<br />including copyrights. CLIENT shall have a limited, non - exclusive license to use copies of the
<br />Documents of Service provided to it in connection with the Project for which the Documents of
<br />Service are provided until the completion of the Project.
<br />11.2 ECS' Services are performed and Documents of Service are provided for the CLIENT'S sole
<br />use. CLIENT understands and agrees that any use of the Documents of Service by anyone other
<br />than the CLIENT, it's licensed consultants and its contractors is not permitted. CLIENT further
<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.
<br />11.3 CLIENT agrees to not use ECS' Documents of Service for the Project if the Project is
<br />subsequently modified in scope, structure or purpose without ECS' prior written consent. Any
<br />reuse without ECS' written consent shall be at CLIENT'S sole risk and without liability to ECS or to
<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,
<br />structure or purpose.
<br />11.4 CLIENT agrees to not make any modification to the Documents of Service without the prior
<br />written authorization of ECS. To the fullest extent permitted bylaw, CLIENT agrees to indemnify,
<br />defend, and hold ECS harmless from any damage, loss, claim, liability or cost (including reasonable
<br />attorneys' fees and defense costs) arising out of or in connection with any unauthorized
<br />modification of the Documents of Service by CLIENT or any person or entity that acquires or
<br />obtains the Documents of Service from or through CLIENT. CLIENT represents and warrants that
<br />the Documents of Service shall be used only as submitted by ECS.
<br />12.0 SAFETY
<br />12.1 Unless expressly agreed to in writing in its Proposal, CLIENT agrees that ECS shall have no
<br />responsibility whatsoever for any aspect of site safety other than for its own employees. Nothing
<br />herein shall be construed to relieve CLIENT and /or its contractors, consultants or other parties
<br />from their responsibility for site safety. CLIENT also represents and warrants that the General
<br />Contractor is solely responsible for Project site safety and that ECS personnel may rely on the
<br />safety measures provided by the General Contractor.
<br />12.2 In the event ECS assumes in writing limited responsibility for specified safety issues, the
<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
<br />to excavating, trenching, shoring, drilling, backfilling, blasting, or other construction activities.
<br />13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES
<br />13.1 CLIENT understands that construction testing and observation services are provided in an
<br />effort to reduce, but cannot eliminate, the risk of problems arising during or after construction or
<br />remediation. CLIENT agrees that the provision of such Services does not create a warranty or
<br />guarantee of any type.
<br />13.2 Monitoring and /or testing services provided by ECS shall not in anyway relieve the CLIENT'S
<br />contractor(s) from their responsibilities and obligations for the quality or completeness of
<br />construction as well as their obligation to comply with applicable laws, codes, and regulations.
<br />13.3 ECS has no responsibility whatsoever for the means, methods, techniques, sequencing or
<br />procedures of construction selected, for safety precautions and programs incidental to work or
<br />services provided by any contractor or other consultant. ECS does not and shall not have or accept
<br />authority to supervise, direct, control, or stop the work of any contractor or consultant or any of
<br />their subcontractors or subconsultants.
<br />13.4 ECS strongly recommends that CLIENT retain ECS to provide construction monitoring and
<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
<br />aspect of construction monitoring and /or testing, CLIENT accepts the risks that a lower level of
<br />construction quality may occur and that defective or incomplete work may result and not be
<br />detected by ECS' part time monitoring and testing. Unless the CLIENT can show that the error or
<br />omission is contained in ECS' reports, CLIENT waives, releases and discharges ECS from and against
<br />any other claims for errors, omissions, damages, injuries, or loss alleged to arise from defective or
<br />incomplete work that was monitored or tested by ECS on a part time basis. Except as set forth in
<br />the preceding sentence, CLIENT agrees to indemnify and hold ECS harmless from all damages,
<br />costs, and attorneys' fees, for any claims alleging errors, omissions, damage, injury or loss allegedly
<br />resulting from Work that was monitored or tested by ECS on a part time basis.
<br />14.0 CERTIFICATIONS -CLIENT may request, or governing jurisdictions may require, ECS to
<br />provide a "certification" regarding the Services provided by ECS. Any "certification" required of
<br />ECS Proposal 06:20711
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<br />ECS by the CLIENT or jurisdiction(s) having authority over some or all aspects of the Project shall
<br />consist of ECS' inferences and professional opinions based on the limited sampling, observations,
<br />tests, and /or analyses performed by ECS at discrete locations and times. Such "certifications" shall
<br />constitute ECS' professional opinion of a condition's existence, but ECS does not guarantee that
<br />such condition exists, nor does it relieve other parties of the responsibilities or obligations such
<br />parties have with respect to the possible existence of such a condition. CLIENT agrees it cannot
<br />make the resolution of any dispute with ECS or payment of any amount due to ECS contingent
<br />upon ECS signing any such "certification."
<br />15.0 BILLINGS AND PAYMENTS
<br />15.1 Billings will be based on the unit rates, plus travel costs, and other reimbursable expenses
<br />as stated in the Professional Fees section of the Proposal. Any Estimate of Professional Fees stated
<br />in these Terms shall not be considered as a not -to- exceed or lump sum amount unless otherwise
<br />explicitly stated. CLIENT understands and agrees that even if ECS agrees to a lump sum or not -to-
<br />exceed amount, that amount shall be limited to number of hours, visits, trips, tests, borings, or
<br />samples stated in the Proposal.
<br />15.2 CLIENT agrees that all Professional Fees and other unit rates shall be adjusted annually to
<br />account for inflation based on the most recent 12 -month average of the Consumer Price Index
<br />(CPI -U) for all items as established by www.bis.gov when the CPI -U exceeds an annual rate of 2.0 %.
<br />15.3 Should ECS identify a Changed Condition(s), ECS shall notify the CLIENT of the Changed
<br />Condition(s). ECS and CLIENT shall promptly and in good faith negotiate an amendment to the
<br />Scope of Services, Professional Fees, and time schedule.
<br />15.4 CLIENT recognizes that time is of the essence with respect to payment of ECS' invoices, and
<br />that timely payment is a material consideration for this agreement. All payment shall be in U.S.
<br />funds drawn upon U.S. banks and in accordance with the rates and charges set forth in the
<br />Professional Fees. Invoices are due and payable upon receipt.
<br />15.5 If CLIENT disputes all or part of an invoice, CLIENT shall provide ECS with written notice
<br />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 />15.6 ECS reserves the right to charge CLIENT an additional charge of one - and - one -half (1.5)
<br />percent (or the maximum percentage allowed by Law, whichever is lower) of the invoiced amount
<br />per month for any payment received by ECS more than thirty (30) calendar days from the date of
<br />the invoice, excepting any portion of the invoiced amount in dispute. All payments will be applied
<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 />15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon CLIENT'S
<br />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 />transaction, receipt of payment from CLIENT'S client, or any other event unrelated to ECS provision
<br />of Services. Retainage shall not be withheld from any payment, nor shall any deduction be made
<br />from any invoice on account of penalty, liquidated damages, or other sums incurred by CLIENT. It
<br />is agreed that all costs and legal fees including actual attorney's fees, and expenses incurred by ECS
<br />in obtaining payment under this Agreement, in perfecting or obtaining a lien, recovery under a
<br />bond, collecting any delinquent amounts due, or executing judgments, shall be reimbursed by
<br />CLIENT.
<br />15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of these Terms,
<br />payment of any invoice by the CLIENT shall mean that the CLIENT is satisfied with ECS' Services and
<br />is not aware of any defects in those Services.
<br />16.0 DEFECTS IN SERVICE
<br />16.1 CLIENT, its personnel, its consultants, and its contractors shall promptly inform ECS during
<br />active work on any project of any actual or suspected defects in the Services so to permit ECS to
<br />take such prompt, effective remedial measures that in ECS' opinion will reduce or eliminate the
<br />consequences of any such defective Services. The correction of defects attributable to ECS' failure
<br />to perform in accordance with the Standard of Care shall be provided at no cost to CLIENT.
<br />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 />materials by CLIENT's personnel, consultants or contractors, or work not observed by ECS. CLIENT
<br />shall compensate ECS for the costs of correcting such defects.
<br />16.2 Modifications to reports, documents and plans required as a result ofjurisdictional reviews
<br />or CLIENT requests shall not be considered to be defects. CLIENT shall compensate ECS for the
<br />provision of such Services.
<br />17.0 INSURANCE -_ECS represents that it and its subcontractors and subconsultants maintain
<br />Workers Compensation insurance, and that ECS is covered by general liability, automobile and
<br />professional liability insurance policies in coverage amounts it deems reasonable and adequate.
<br />ECS shall furnish certificates of insurance upon request. The CLIENT is responsible for requesting
<br />specific inclusions or limits of coverage that are not present in ECS insurance package. The cost of
<br />such inclusions or coverage increases, if available, will be at the expense of the CLIENT.
<br />18.0 LIMITATION OF LIABILITY
<br />18.1 CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING ECS' TOTAL LIABILITY
<br />To CLIENT ARISING FROM ECS' PROFESSIONAL LIABILITY, I.E. PROFESSIONAL ACTS, ERRORS, OR OMISSIONS AND FOR ANY
<br />AND ALL CAUSES INCLUDING NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY, INJURIES,
<br />DAMAGES, CLAIMS, LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES) RELATING TO
<br />PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BYLAW. THE
<br />ALLOCATION IS AS FOLLOWS.
<br />18.1.1 If the proposed fees are $10,000 or less, ECS' total aggregate liability to CLIENT shall not
<br />exceed $20,000, or the total fee received for the services rendered, whichever is greater.
<br />18.1.2 If the proposed fees are in excess of $10,000, ECS' total aggregate liability to CLIENT shall
<br />not exceed $40,000, or the total fee for the services rendered, whichever is greater.
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