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DocuSign Envelope ID: AFOFC7DF- FDAD- 4E58- A786- 72F744EA8560
<br />ECS Proposal No. 06:20895
<br />Client: Orange County Asset Management
<br />ECS SOUTHEAST, LLP
<br />TERMS AND CONDITIONS OF SERVICE
<br />The professional services (the "Services ") to be provided by ECS SOUTHEAST, LLP
<br />[ "ECS "] pursuant to the Proposal shall be provided in accordance with these Terms and
<br />Conditions of Service ( "Terms "), including any addenda as may be incorporated or
<br />referenced in writing shall form the Agreement between ECS and Client.
<br />1.0 INDEPENDENT CONSULTANT STATUS - ECS shall serve as an independent
<br />professional consultant to CLIENT for Service on the Project, identified above, and shall
<br />have control over, and responsibility for, the means and methods for providing the Services
<br />identified in the Proposal, including the retention of Subcontractors and Subconsultants
<br />2.0 SCOPE OF SERVICES - It is understood that the fees, reimbursable expenses
<br />and time schedule defined in the Proposal are based on information provided by CLIENT
<br />and /or CLIENT'S contractors and consultants. CLIENT acknowledges that if this
<br />information is not current, is incomplete or inaccurate, if conditions are discovered that
<br />could not be reasonably foreseen, or if CLIENT orders additional services, the scope of
<br />services will change, even while the Services are in progress.
<br />3.0 STANDARD OF CARE
<br />3.1 In fulfilling its obligations and responsibilities enumerated in the Proposal,
<br />ECS shall be expected to comply with and its performance evaluated in light
<br />of the standard of care expected of professionals in the industry performing
<br />similar services on projects of like size and complexity at that time in the
<br />region (the "Standard of Care "). Nothing contained in the Proposal, the
<br />agreed -upon scope of Services, these Terms and Conditions of Service or any
<br />ECS report, opinion, plan or other document prepared by ECS shall constitute
<br />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
<br />gathered during performance of Services as well as those facts provided by the
<br />CLIENT. CLIENT acknowledges that such data collection is limited to specific areas
<br />that are sampled, bored, tested, observed and /or evaluated. Consequently,
<br />CLIENT waives any and all claims based upon erroneous facts provided by the
<br />CLIENT, facts subsequently learned or regarding conditions in areas not specifically
<br />sampled, bored, tested, observed or evaluated by ECS.
<br />3.3 If a situation arises that causes ECS to believe compliance with CLIENT'S directives
<br />would be contrary to sound engineering practices, would violate applicable laws,
<br />regulations or codes, or will expose ECS to legal claims or charges, ECS shall so
<br />advise CLIENT. If ECS' professional judgment is rejected, ECS shall have the right
<br />to terminate its Services in accordance with the provisions of Section 25.0, below.
<br />3.4 If CLIENT decides to disregard ECS' recommendations with respect to complying
<br />with applicable Laws or Regulations, ECS shall determine if applicable law requires
<br />ECS to notify the appropriate public officials. CLIENT agrees that such
<br />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
<br />shall furnish and /or shall direct CLIENT'S consultant(s) or agent(s) to furnish ECS
<br />information identifying the type and location of utility lines and other man -made
<br />objects known, suspected, or assumed to be located beneath or behind the Site's
<br />surface. ECS shall be entitled to rely on such information for completeness and
<br />accuracy without further investigation, analysis, or evaluation.
<br />4.2 "Hazardous Materials" shall include but not be limited to any substance that poses
<br />or may pose a present or potential hazard to human health or the environment
<br />whether contained in a product, material, by- product, waste, or sample, and whether
<br />it exists in a solid, liquid, semi -solid or gaseous form. CLIENT shall notify ECS of
<br />any known, assumed, or suspected regulated, contaminated, or other similar
<br />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
<br />after its Services begin, ECS shall be entitled to amend the scope of Services and
<br />adjust its fees to reflect the additional work or personal protective equipment and /or
<br />safety precautions required by the existence of such Hazardous Materials.
<br />5.0 INFORMATION PROVIDED BY OTHERS - CLIENT waives, releases and
<br />discharges ECS from and against any claim for damage, injury or loss allegedly arising out
<br />of or in connection with errors, omissions, or inaccuracies in documents and other
<br />information in any form provided to ECS by CLIENT or CLIENT's agents, contractors, or
<br />consultants, including such information that becomes incorporated into ECS documents.
<br />6.0 CONCEALED RISKS - CLIENT acknowledges that special risks are inherent in
<br />sampling, testing and /or evaluating concealed conditions that are hidden from view and /or
<br />neither readably apparent nor easily accessible, e.g., subsurface conditions, conditions
<br />behind a wall, beneath a floor, or above a ceiling. Such circumstances require that certain
<br />assumptions be made regarding existing conditions, which may not be verifiable without
<br />expending additional sums of money or destroying otherwise adequate or serviceable
<br />portions of a building or component thereof. Accordingly, ECS shall not be responsible for
<br />the verification of such conditions unless verification can be made by simple visual
<br />observation. Client agrees to bear any and all costs, losses, damages and expenses
<br />(including, but not limited to, the cost of ECS' Additional Services) in anyway arising from or
<br />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
<br />Site for the performance of Services. CLIENT hereby grants ECS and its
<br />subcontractors and /or agents, the right to enter from time to time onto the property
<br />in order for ECS to perform its Services. CLIENT agrees to indemnify and hold ECS
<br />harmless from any claims arising from allegations that ECS trespassed or lacked
<br />authority to access the Site.
<br />7.2 CLIENT warrants that it possesses all necessary permits, licenses and /or utility
<br />clearances for the Services to be provided by ECS except where ECS' Proposal
<br />explicitly states that ECS will obtain such permits, licenses, and /or utility clearances.
<br />7.3 ECS will take reasonable precautions to limit damage to the Site and its
<br />improvements during the performance of its Services. CLIENT understands that the
<br />use of exploration, boring, sampling, or testing equipment may cause minor, but
<br />common, damage to the Site. The correction and restoration of such common
<br />damage is CLIENT'S responsibility unless specifically included in ECS' Proposal.
<br />7.4 CLIENT agrees that it will not bring any claims for liability or for injury or loss against
<br />ECS arising from (i) procedures associated with the exploration, sampling or testing
<br />activities at the Site, (ii) discovery of Hazardous Materials or suspected Hazardous
<br />Materials, or (iii) ECS' findings, conclusions, opinions, recommendations, plans,
<br />and /or specifications related to discovery of contamination.
<br />8.0 UNDERGROUND UTILITIES
<br />8.1 ECS shall exercise the Standard of Care in evaluating client- furnished information
<br />as well as information readily and customarily available from public utility locating
<br />services (the "Underground Utility Information ") in its effort to identify underground
<br />utilities. The extent of such evaluations shall be at ECS' sole discretion.
<br />8.2 CLIENT recognizes that the Underground Utility Information provided to or obtained
<br />by ECS may contain errors or be incomplete. CLIENT understands that ECS may
<br />be unable to identify the locations of all subsurface utility lines and man -made
<br />features.
<br />8.3 CLIENT waives, releases, and discharges ECS from and against any claim for
<br />damage, injury or loss allegedly arising from or related to subterranean structures
<br />(pipes, tanks, cables, or other utilities, etc.) which are not called to ECS' attention in
<br />writing by CLIENT, not correctly shown on the Underground Utility Information
<br />and /or not properly marked or located by the utility owners, governmental or quasi -
<br />governmental locators, or private utility locating services as a result of ECS' or ECS'
<br />subcontractor's request for utility marking services made in accordance with local
<br />industry standards.
<br />9.0 SAMPLES
<br />9.1 Soil, rock, water, building materials and /or other samples and sampling by- products
<br />obtained from the Site are and remain the property of CLIENT. Unless other
<br />arrangements are requested by CLIENT and mutually agreed upon by ECS in
<br />writing, ECS will retain samples not consumed in laboratory testing for up to sixty
<br />(60) calendar days after the issuance of any document containing data obtained
<br />from such samples. Samples consumed by laboratory testing procedures will not be
<br />stored.
<br />9.2 Unless CLIENT directs otherwise, and excluding those issues covered in Section
<br />10.0, CLIENT authorizes ECS to dispose of CLIENT'S non- hazardous samples and
<br />sampling or testing process by- products in accordance with applicable laws and
<br />regulations.
<br />10.0 ENVIRONMENTAL RISKS
<br />10.1 When Hazardous Materials are known, assumed, suspected to exist, or discovered
<br />at the Site, ECS will endeavor to protect its employees and address public health,
<br />safety, and environmental issues in accordance with the Standard of Care. CLIENT
<br />agrees to compensate ECS for such efforts.
<br />10.2 When Hazardous Materials are known, assumed, or suspected to exist, or
<br />discovered at the Site, ECS and /or ECS' subcontractors will exercise the Standard
<br />of Care in containerizing and labeling such Hazardous Materials in accordance with
<br />applicable laws and regulations, and will leave the containers on Site. CLIENT is
<br />responsible for the retrieval, removal, transport and disposal of such contaminated
<br />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
<br />nor arrange for the transport, disposal, or treatment of Hazardous Materials. At
<br />CLIENT'S written request, ECS may assist CLIENT in identifying appropriate
<br />alternatives for transport, off -site treatment, storage, or disposal of such substances,
<br />but CLIENT shall be solely responsible for the final selection of methods and firms
<br />to provide such services. CLIENT shall sign all manifests for the disposal of
<br />substances affected by contaminants and shall otherwise exercise prudence in
<br />arranging for lawful disposal.
<br />10.4 In those instances where ECS is expressly retained by CLIENT to assist CLIENT in
<br />the disposal of Hazardous Materials, samples, or wastes as part of the Proposal,
<br />ECS shall do so only as CLIENT'S agent (notwithstanding any other provision of
<br />this AGREEMENT to the contrary). ECS will not assume the role of, nor be
<br />considered a generator, storer, transporter, or disposer of Hazardous Materials.
<br />10.5 Subsurface sampling may result in unavoidable cross - contamination of certain
<br />subsurface areas, as when a probe or excavation /boring device moves through a
<br />contaminated zone and links it to an aquifer, underground stream, pervious soil
<br />stratum, or other hydrous body not previously contaminated, or connects an
<br />uncontaminated zone with a contaminated zone. Because sampling is an essential
<br />Zof the Services indicated herein, CLIENT agrees this risk cannot be
<br />eliminated. Provided such services were performed in accordance with the
<br />Standard of Care, CLIENT waives, releases and discharges ECS from and against
<br />any claim for damage, injury, or loss allegedly arising from or related to such cross -
<br />contamination.
<br />ECS Proposal No. 06:20895 Page 1 of 3 Ver. 06/04/13
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