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DocuSi n Envelope ID: 12E28A19 -47D1- 4964- 983E- 1BE3535E0848
<br />Orange . ECS Southeast, LLP
<br />Management 4• •
<br />Terms and Conditions of Service
<br />The professional services (the "Services ") to be provided by ECS Southeast, LLP [ "ECS"] pursuant to
<br />the Proposal shall be provided in accordance with these Terms and Conditions of Service ('Terms "),
<br />including any addenda as may be incorporated or referenced in writing shall form the Agreement
<br />between ECS and Orange County Asset Management (Client).
<br />1.0 INDEPENDENT CONSULTANT STATUS - ECS shall serve as an independent professional
<br />consultant to CLIENT for Service on the Project, identified above, and shall have control over, and
<br />7.4 CLIENT agrees that it will not bring any claims for liability or for injury or loss against ECS
<br />arising from (i) procedures associated with the exploration, sampling or testing activities at the
<br />Site, (ii) discovery of Hazardous Materials or suspected Hazardous Materials, or (iii) ECS' findings,
<br />conclusions, opinions, recommendations, plans, and /or specifications related to discovery of
<br />contamination.
<br />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.
<br />2.0 SCOPE OF SERVICES - It is understood that the fees, reimbursable expenses and time schedule
<br />defined in the Proposal are based on information provided by CLIENT and /or CLIENTS contractors
<br />and consultants. CLIENT acknowledges that if this information is not current, is incomplete or
<br />inaccurate, if conditions are discovered that could not be reasonably foreseen, or if CLIENT orders
<br />additional services, the scope of services will change, even while the Services are in progress.
<br />3.1 In fulfilling its obligations and responsibilities enumerated in the Proposal, ECS shall be expected
<br />to comply with and its performance evaluated in light of the standard of care expected of
<br />professionals in the industry performing similar services on projects of like size and complexity at
<br />that time in the region (the "Standard of Care "). Nothing contained in the Proposal, the agreed -upon
<br />scope of Services, these Terms and Conditions of Service or any ECS report, opinion, plan or other
<br />document prepared by ECS shall constitute a warranty or guaranty of any nature whatsoever.
<br />3.2 CLIENT understands and agrees that ECS will rely on the facts learned from data gathered during
<br />performance of Services as well as those facts provided by the CLIENT. CLIENT acknowledges that
<br />such data collection is limited to specific areas that are sampled, bored, tested, observed and /or
<br />evaluated. Consequently, CLIENT waives any and all claims based upon erroneous facts provided
<br />by the CLIENT, facts subsequently learned or regarding conditions in areas not specifically sampled,
<br />bored, tested, observed or evaluated by ECS.
<br />information readily and customarily available from public utility locating services (the "Underground
<br />Utility Information ") in its effort to identify underground utilities. The extent of such evaluations
<br />shall be at ECS'sole discretion.
<br />8.2 CLIENT recognizes that the Underground Utility Information provided to or obtained by ECS
<br />may contain errors or be incomplete. CLIENT understands that ECS may be unable to identify the
<br />locations of all subsurface utility lines and man -made features.
<br />8.3 CLIENT waives, releases, and discharges ECS from and against any claim for damage, injury
<br />or loss allegedly arising from or related to subterranean structures (pipes, tanks, cables, or other
<br />utilities, etc.) which are not called to ECS' attention in writing by CLIENT, not correctly shown on
<br />the Underground Utility Information and /or not properly marked or located by the utility owners,
<br />governmental or quasi - governmental locators, or private utility locating services as a result of ECS'
<br />or ECS' subcontractor's request for utility marking services made in accordance with local industry
<br />standards.
<br />9.0 SAMPLES
<br />9.1 Soil, rock, water, building materials and /or other samples and sampling by- products obtained
<br />from the Site are and remain the property of CLIENT. Unless other arrangements are requested
<br />by CLIENT and mutually agreed upon by ECS in writing, ECS will retain samples not consumed in
<br />laboratory testing for up to sixty (60) calendar days after the issuance of any document containing
<br />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
<br />expose ECS to legal claims or charges, ECS shall so advise CLIENT. If ECS' professional judgment
<br />is rejected, ECS shall have the right to terminate its Services in accordance with the provisions of
<br />Section 25.0, below.
<br />3.4 If CLIENT decides to disregard ECS' recommendations with respect to complying with applicable
<br />Laws or Regulations, ECS shall determine if applicable law requires ECS to notify the appropriate
<br />public officials. CLIENT agrees that such determinations are ECS'sole right to make.
<br />4.0 CLIENT DISCLOSURES
<br />4.1 Where the Scope of Services requires ECS to penetrate a Site surface, CLIENT shall furnish and/
<br />or shall direct CLIENT'S consultant(s) or agent(s) to furnish ECS information identifying the type
<br />and location of utility lines and other man -made objects known, suspected, or assumed to be
<br />located beneath or behind the Site's surface. ECS shall be entitled to rely on such information for
<br />completeness and accuracy without further investigation, analysis, or evaluation.
<br />4.2 "Hazardous Materials" shall include but not be limited to any substance that poses or may pose
<br />a present or potential hazard to human health or the environment whether contained in a product,
<br />material, by- product, waste, or sample, and whether it exists in a solid, liquid, semi -solid or gaseous
<br />form. CLIENT shall notify ECS of any known, assumed, or suspected regulated, contaminated, or
<br />other similar Hazardous Materials that may exist at the Site prior to ECS mobilizing to the Site.
<br />4.3 If any Hazardous Materials are discovered, or are reasonably suspected by ECS after its Services
<br />begin, ECS shall be entitled to amend the scope of Services and adjust its fees to reflect the
<br />additional work or personal protective equipment and /or safety precautions required by the
<br />existence of such Hazardous Materials.
<br />5.0 INFORMATION PROVIDED BY OTHERS - CLIENT waives, releases and discharges ECS from and
<br />against any claim for damage, injury or loss allegedly arising out of or in connection with errors,
<br />omissions, or inaccuracies in documents and other information in any form provided to ECS b
<br />9.2 Unless CLIENT directs otherwise, and excluding those issues covered in Section 10.0, CLIENT
<br />authorizes ECS to dispose of CLIENT'S non - hazardous samples and sampling or testing process
<br />by- products in accordance with applicable laws and regulations.
<br />10.0 ENVIRONMENTAL RISKS
<br />10.1 When Hazardous Materials are known, assumed, suspected to exist, or discovered at the Site,
<br />ECS will endeavor to protect its employees and address public health, safety, and environmental
<br />issues in accordance with the Standard of Care. CLIENT agrees to compensate ECS for such efforts.
<br />10.2 When Hazardous Materials are known, assumed, or suspected to exist, or discovered at the
<br />Site, ECS and /or ECS'subcontractors will exercisethe Standard of Care in containerizing and labeling
<br />such Hazardous Materials in accordance with applicable laws and regulations, and will leave the
<br />containers on Site. CLIENT is responsible for the retrieval, removal, transport and disposal of such
<br />contaminated samples, and sampling process byproducts in accordance with applicable law and
<br />regulation.
<br />10.3 Unless explicitly stated in the Scope of Services, ECS will neither subcontract for nor arrange
<br />for the transport, disposal, or treatment of Hazardous Materials. At CLIENTS written request, ECS
<br />may assist CLIENT in identifying appropriate alternatives for transport, off -site treatment, storage,
<br />or disposal of such substances, but CLIENT shall be solely responsible for the final selection of
<br />methods and firms to provide such services. CLIENT shall sign all manifests for the disposal of
<br />substances affected by contaminants and shall otherwise exercise prudence in arranging for lawful
<br />disposal.
<br />10.4 In those instances where ECS is expressly retained by CLIENT to assist CLIENT in the disposal
<br />of Hazardous Materials, samples, or wastes as part of the Proposal, ECS shall do so only as CLIENT'S
<br />agent (notwithstanding any other provision of this AGREEMENT to the contrary). ECS will not
<br />assume the role of, nor be considered a generator, storer, transporter, or disposer of Hazardous
<br />Materials.
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<br />CLIENT or CLIENT's agents, contractors, or consultants, including such information that becomes
<br />incorporated into ECS documents.
<br />6.0 CONCEALED RISKS - CLIENT acknowledges that special risks are inherent in sampling, testing
<br />and /or evaluating concealed conditions that are hidden from view and /or neither readably
<br />apparent nor easily accessible, e.g., subsurface conditions, conditions behind a wall, beneath a
<br />floor, or above a ceiling. Such circumstances require that certain assumptions be made regarding
<br />existing conditions, which may not be verifiable without expending additional sums of money
<br />or destroying otherwise adequate or serviceable portions of a building or component thereof.
<br />Accordingly, ECS shall not be responsible for the verification of such conditions unless verification
<br />can be made by simple visual observation. Client agrees to bear any and all costs, losses, damages
<br />and expenses (including, but not limited to, the cost of ECS' Additional Services) in any way arising
<br />from or in connection with the existence or discovery of such concealed or unknown conditions.
<br />7.0 RIGHT OF ENTRY /DAMAGE RESULTING FROM SERVICES
<br />7.1 CLIENT warrants that it possesses the authority to grant ECS right of entry to the Site for the
<br />performance of Services. CLIENT hereby grants ECS and its subcontractors and /or agents, the right
<br />to enter from time to time onto the property in order for ECS to perform its Services. CLIENT agrees
<br />to indemnify and hold ECS harmless from any claims arising from allegations that ECS trespassed
<br />or lacked authority to access the Site.
<br />7.2 CLIENT warrants that it possesses all necessary permits, licenses and /or utility clearances for
<br />the Services to be provided by ECS except where ECS' Proposal explicitly states that ECS will obtain
<br />such permits, licenses, and /or utility clearances.
<br />7.3 ECS will take reasonable precautions to limit damage to the Site and its improvements during
<br />the performance of its Services. CLIENT understands that the use of exploration, boring, sampling,
<br />or testing equipment may cause minor, but common, damage to the Site. The correction and
<br />restoration of such common damage is CLIENT'S responsibility unless specifically included in ECS'
<br />Proposal.
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<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
<br />links it to an aquifer, underground stream, pervious soil stratum, or other hydrous body not
<br />previously contaminated, or connects an uncontaminated zone with a contaminated zone. Because
<br />sampling is an essential element of the Services indicated herein, CLIENT agrees this risk cannot
<br />be 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 />112 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, its licensed consultants and its contractors is not permitted. CLIENT further
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