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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 />agrees to indemnify and hold ECS harmless for any errors, omissions or damage resulting from its
<br />15.5 If CLIENT disputes all or part of an invoice, CLIENT shall provide ECS with written notice stating
<br />contractors' use of ECS' Documents of Service.
<br />in detail the facts of the dispute within fifteen (15) calendar days of the invoice. CLIENT agrees to
<br />11.3 CLIENT agrees to not use ECS' Documents of Service for the Project if the Project is
<br />pay the undisputed amount of such invoice promptly.
<br />subsequently modified in scope, structure or purpose without ECS' prior written consent. Any reuse
<br />15.6 ECS reserves the right to charge CLIENT an additional charge of one - and - one -half (1.5) percent
<br />without ECS' written consent shall be at CLIENT'S sole risk and without liability to ECS or to ECS'
<br />(or the maximum percentage allowed by Law, whichever is lower) of the invoiced amount per
<br />subcontractor(s). CLIENT agrees to indemnify and hold ECS harmless for any errors, omissions
<br />month for any payment received by ECS more than thirty (30) calendar days from the date of the
<br />or damage resulting from its use of ECS' Documents of Service after any modification in scope,
<br />invoice, excepting any portion of the invoiced amount in dispute. All payments will be applied to
<br />structure or purpose.
<br />accrued interest first and then to the unpaid principal amount. Payment of invoices shall not be
<br />11.4 CLIENT agrees to not make any modification to the Documents of Service without the prior
<br />subject to unilateral discounting or set -offs by CLIENT.
<br />written authorization of ECS. To the fullest extent permitted by law, CLIENT agrees to indemnify,
<br />15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon CLIENT'S
<br />defend, and hold ECS harmless from any damage, loss, claim, liability or cost (including reasonable
<br />ability to obtain financing, zoning, approval of governmental or regulatory agencies, permits, final
<br />attorneys' fees and defense costs) arising out of or in connection with any unauthorized
<br />adjudication of a lawsuit, CLIENT'S successful completion of the Project, settlement of a real estate
<br />modification of the Documents of Service by CLIENT or any person or entity that acquires or
<br />transaction, receipt of payment from CLIENT'S client, or any other event unrelated to ECS provision
<br />obtains the Documents of Service from or through CLIENT. CLIENT represents and warrants that
<br />of Services. Retainage shall not be withheld from any payment, nor shall any deduction be made
<br />the Documents of Service shall be used only as submitted by ECS.
<br />from any invoice on account of penalty, liquidated damages, or other sums incurred by CLIENT. It is
<br />12.0 SAFETY
<br />agreed that all costs and legal fees including actual attorney's fees, and expenses incurred by ECS in
<br />12.1 Unless expressly agreed to in writing in its Proposal, CLIENT agrees that ECS shall have no
<br />obtaining payment under this Agreement, in perfecting or obtaining a lien, recovery under a bond,
<br />responsibility whatsoever for any aspect of site safety other than for its own employees. Nothing
<br />collecting any delinquent amounts due, or executing judgments, shall be reimbursed by CLIENT.
<br />herein shall be construed to relieve CLIENT and /or its contractors, consultants or other parties from
<br />15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of these Terms,
<br />their responsibility for site safety. CLIENT also represents and warrants that the General Contractor
<br />payment of any invoice by the CLIENT shall mean that the CLIENT is satisfied with ECS' Services and
<br />is solely responsible for Project site safety and that ECS personnel may rely on the safety measures
<br />is not aware of any defects in those Services.
<br />provided by the General Contractor.
<br />16.0 DEFECTS IN SERVICE
<br />12.2 In the event ECS assumes in writing limited responsibility for specified safety issues, the
<br />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 />active work on any project of any actual or suspected defects in the Services so to permit ECS to
<br />responsibility for any other non - specified safety issues, including, but not limited to those relating
<br />take such prompt, effective remedial measures that in ECS' opinion will reduce or eliminate the
<br />to excavating, trenching, shoring, drilling, backfilling, blasting, or other construction activities.
<br />consequences of any such defective Services. The correction of defects attributable to ECS' failure to
<br />13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES
<br />perform in accordance with the Standard of Care shall be provided at no cost to CLIENT. However,
<br />13.1 CLIENT understands that construction testing and observation services are provided in an
<br />ECS shall not be responsible for the correction of any deficiency attributable to CLIENT - furnished
<br />effort to reduce, but cannot eliminate, the risk of problems arising during or after construction
<br />information, the errors, omissions, defective materials, or improper installation of materials by
<br />or remediation. CLIENT agrees that the provision of such Services does not create a warranty or
<br />CLIENT's personnel, consultants or contractors, or work not observed by ECS. CLIENT shall
<br />guarantee of any type.
<br />compensate ECS for the costs of correcting such defects.
<br />13.2 Monitoring and /or testing services provided by ECS shall not in any way relieve the CLIENT'S
<br />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
<br />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.
<br />provision of such Services.
<br />13.3 ECS has no responsibility whatsoever for the means, methods, techniques, sequencing or
<br />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
<br />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
<br />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
<br />ECS shall furnish certificates of insurance upon request. The CLIENT is responsible for requesting
<br />their subcontractors or subconsultants.
<br />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
<br />such inclusions or coverage increases, if available, will be at the expense ofthe CLIENT.
<br />testing services on a full time basis to lower the risk of defective or incomplete Work being installed
<br />18.0 LIMITATION OF LIABILITY
<br />by CLIENT'S contractor(s). If CLIENT elects to retain ECS on a part time basis for any aspect of
<br />18.1 CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING
<br />construction monitoring and /or testing, CLIENT accepts the risks that a lower level of construction
<br />ECS' TOTAL LIABILITY TO CLIENT ARISING FROM ECS' PROFESSIONAL LIABILITY, I.E. PROFESSIONAL
<br />quality may occur and that defective or incomplete work may result and not be detected by
<br />ACTS, ERRORS, OR OMISSIONS AND FOR ANY AND ALL CAUSES INCLUDING NEGLIGENCE, STRICT
<br />ECS' part time monitoring and testing. Unless the CLIENT can show that the error or omission
<br />LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY, INJURIES, DAMAGES, CLAIMS,
<br />is contained in ECS' reports, CLIENT waives, releases and discharges ECS from and against any
<br />LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES) RELATING
<br />other claims for errors, omissions, damages, injuries, or loss alleged to arise from defective or
<br />TO PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT TO THE FULLEST EXTENT
<br />incomplete work that was monitored or tested by ECS on a part time basis. Except as set forth
<br />PERMITTED BY LAW. THE ALLOCATION IS AS FOLLOWS.
<br />in the preceding sentence, CLIENT agrees to indemnify and hold ECS harmless from all damages,
<br />18.1.1 If the proposed fees are $10,000 or less, ECS' total aggregate liability to CLIENT
<br />costs, and attorneys' fees, for any claims alleging errors, omissions, damage, injury or loss allegedly
<br />shall not exceed $20,000, or the total fee received for the services rendered, whichever is
<br />resulting from Work that was monitored or tested by ECS on a part time basis.
<br />greater.
<br />14.0 CERTIFICATIONS - CLIENT may request, or governing jurisdictions may require, ECS to provide
<br />18.1.2 If the proposed fees are in excess of $10,000, ECS'total aggregate liability to CLIENT
<br />a "certification" regarding the Services provided by ECS. Any "certification" required of ECS by the
<br />shall not exceed $40,000, or the total fee for the services rendered, whichever is greater.
<br />CLIENT or jurisdiction(s) having authority over some or all aspects of the Project shall consist of
<br />18.2 CLIENT agrees that ECS shall not be responsible for any injury, loss or damage of any nature,
<br />ECS' inferences and professional opinions based on the limited sampling, observations, tests, and/
<br />including bodily injury and property damage, arising directly or indirectly, in whole or in part,
<br />or analyses performed by ECS at discrete locations and times. Such "certifications" shall constitute
<br />from acts or omissions by the CLIENT, its employees, agents, staff, consultants, contractors, or
<br />ECS' professional opinion of a condition's existence, but ECS does not guarantee that such condition
<br />subcontractors to the extent such injury, damage, or loss is caused by acts or omissions of CLIENT,
<br />exists, nor does it relieve other parties of the responsibilities or obligations such parties have with
<br />its employees, agents, staff, consultants, contractors, subcontractors or person /entities for whom
<br />respect to the possible existence of such a condition. CLIENT agrees it cannot make the resolution
<br />CLIENT is legally liable.18.3 CLIENT agrees that ECS' liability for all non - professional liability arising
<br />of any dispute with ECS or payment of any amount due to ECS contingent upon ECS signing any
<br />out of this agreement or the services provided as a result ofthe Proposal be limited to $500,000.
<br />such "certification."
<br />19.0 INDEMNIFICATION
<br />15.0 BILLINGS AND PAYMENTS
<br />19.1 Subject Section 18.0, ECS agrees to hold harmless and indemnify CLIENT from and against
<br />15.1 Billings will be based on the unit rates, plus travel costs, and other reimbursable expenses
<br />damages arising from ECS' negligent performance of its Services, but only to the extent that such
<br />as stated in the Professional Fees section of the Proposal. Any Estimate of Professional Fees
<br />damages are found to be caused by ECS' negligent acts, errors or omissions, (specifically excluding
<br />stated in these Terms shall not be considered as a not -to- exceed or lump sum amount unless
<br />any damages caused by any third party or by the CLIENT.)
<br />otherwise explicitly stated. CLIENT understands and agrees that even if ECS agrees to a lump sum or
<br />19.2 To the fullest extent permitted by Law, CLIENT agrees to indemnify, and hold ECS harmless
<br />not -to- exceed amount, that amount shall be limited to number of hours, visits, trips, tests, borings,
<br />from and against any and all liability, claims, damages, demands, fines, penalties, costs and
<br />or samples stated in the Proposal.
<br />expenditures (including reasonable attorneys' fees and costs of litigation defense and /or
<br />15.2 CLIENT agrees that all Professional Fees and other unit rates shall be adjusted annually to
<br />settlement) r'Damages"] caused in whole or in part by the negligent acts, errors, or omissions ofthe
<br />account for inflation based on the most recent 12 -month average of the Consumer Price Index
<br />CLIENT or CLIENTS employees, agents, staff, contractors, subcontractors, consultants, and clients,
<br />(CPI -U) for all items as established by www.bls.gov when the CPI -U exceeds an annual rate of 2.0°,6.
<br />provided such Damages are attributable to: (a) the bodily injury, personal injury, sickness, disease
<br />15.3 Should ECS identify a Changed Condition(s), ECS shall notify the CLIENT of the Changed
<br />and /or death of any person; (b) the injury to or loss of value to tangible personal property; or (c) a
<br />Condition(s). ECS and CLIENT shall promptly and in good faith negotiate an amendment to the
<br />breach of these Terms. The foregoing indemnification shall not apply to the extent such Damage is
<br />Scope of Services, Professional Fees, and time schedule.
<br />found to be caused by the sole negligence, errors, omissions or willful misconduct of ECS.
<br />15.4 CLIENT recognizes that time is ofthe essence with respect to payment of ECS' invoices, and that
<br />19.3 It is specifically understood and agreed that in no case shall ECS be required to pay an amount
<br />timely payment is a material consideration for this agreement. All payment shall be in U.S. funds
<br />of Damages disproportional to ECS' culpability. IF CLIENT IS A HOMEOWNER, HOMEOWNERS'
<br />drawn upon U.S. banks and in accordance with the rates and charges set forth in the Professional
<br />ASSOCIATION, CONDOMINIUM OWNER, CONDOMINIUM OWNER'S ASSOCIATION, OR SIMILAR
<br />Fees. Invoices are due and payable upon receipt.
<br />RESIDENTIAL OWNER, ECS RECOMMENDS THAT CLIENT RETAIN LEGAL COUNSEL BEFORE ENTERING
<br />INTO THIS AGREEMENT TO EXPLAIN CLIENT'S RIGHTS AND OBLIGATIONS HEREUNDER, AND THE
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