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DocuSign Envelope ID: AFOFC7DF- FDAD- 4E58- A786- 72F744EA8560
<br />10.6
<br />11.0
<br />11.1
<br />11.2
<br />11.3
<br />11.4
<br />CLIENT understands that a Phase I Environmental Site Assessment (ESA) is
<br />conducted solely to permit ECS to render a professional opinion about the likelihood
<br />of the site having a Recognized Environmental Condition on, in, beneath, or near
<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
<br />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
<br />and warrants that it understands the limitations associated with Phase I ESAs.
<br />ECS shall be deemed the author and owner (or licensee) of all documents, technical
<br />reports, letters, photos, boring logs, field data, field notes, laboratory test data,
<br />calculations, designs, plans, specifications, reports, or similar documents and
<br />estimates of any kind furnished by it [the "Documents of Service "] and shall retain all
<br />common law, statutory and other reserved rights, including copyrights. CLIENT
<br />shall have a limited, non - exclusive license to use copies of the Documents of
<br />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 />ECS' Services are performed and Documents of Service are provided for the
<br />CLIENT'S sole use. CLIENT understands and agrees that any use of the
<br />Documents of Service by anyone other than the CLIENT, it's licensed consultants
<br />and its contractors is not permitted. CLIENT further agrees to indemnify and hold
<br />ECS harmless for any errors, omissions or damage resulting from its contractors'
<br />use of ECS' Documents of Service.
<br />CLIENT agrees to not use ECS' Documents of Service for the Project if the Project
<br />is subsequently modified in scope, structure or purpose without ECS' prior written
<br />consent. Any reuse without ECS' written consent shall be at CLIENT'S sole risk
<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
<br />from its use of ECS' Documents of Service after any modification in scope, structure
<br />or purpose.
<br />CLIENT agrees to not make any modification to the Documents of Service without
<br />the prior written authorization of ECS. To the fullest extent permitted by law,
<br />CLIENT agrees to indemnify, defend, and hold ECS harmless from any damage,
<br />loss, claim, liability or cost (including reasonable attorneys' fees and defense costs)
<br />arising out of or in connection with any unauthorized modification of the Documents
<br />of Service by CLIENT or any person or entity that acquires or obtains the
<br />Documents of Service from or through CLIENT. CLIENT represents and warrants
<br />that the Documents of Service shall be used only as submitted by ECS.
<br />12.0 SAFETY
<br />12.1
<br />12.2
<br />13.0
<br />13.1
<br />13.2
<br />13.3
<br />13.4
<br />Unless expressly agreed to in writing in its Proposal, CLIENT agrees that ECS shall
<br />have no responsibility whatsoever for any aspect of site safety other than for its own
<br />employees. Nothing herein shall be construed to relieve CLIENT and /or its
<br />contractors, consultants or other parties from their responsibility for site safety.
<br />CLIENT also represents and warrants that the General Contractor is solely
<br />responsible for Project site safety and that ECS personnel may rely on the safety
<br />measures provided by the General Contractor.
<br />In the event ECS assumes in writing limited responsibility for specified safety
<br />issues, the acceptance of such responsibilities does not and shall not be deemed an
<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,
<br />blasting, or other construction activities.
<br />CONSTRUCTION TESTING AND REMEDIATION SERVICES
<br />CLIENT understands that construction testing and observation services are
<br />provided in an effort to reduce, but cannot eliminate, the risk of problems arising
<br />during or after construction or remediation. CLIENT agrees that the provision of
<br />such Services does not create a warranty or guarantee of any type.
<br />Monitoring and /or testing services provided by ECS shall not in any way relieve the
<br />CLIENT'S contractor(s) from their responsibilities and obligations for the quality or
<br />completeness of construction as well as their obligation to comply with applicable
<br />laws, codes, and regulations.
<br />ECS has no responsibility whatsoever for the means, methods, techniques,
<br />sequencing or procedures of construction selected, for safety precautions and
<br />programs incidental to work or services provided by any contractor or other
<br />consultant. ECS does not and shall not have or accept authority to supervise, direct,
<br />control, or stop the work of any contractor or consultant or any of their
<br />subcontractors or subconsultants.
<br />ECS strongly recommends that CLIENT retain ECS to provide construction
<br />monitoring and testing services on a full time basis to lower the risk of defective or
<br />incomplete Work being installed by CLIENT'S contractor(s). If CLIENT elects to
<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
<br />occur and that defective or incomplete work may result and not be detected by ECS'
<br />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
<br />ECS from and against any other claims for errors, omissions, damages, injuries, or
<br />loss alleged to arise from defective or incomplete work that was monitored or tested
<br />by ECS on a part time basis. Except as set forth in the preceding sentence,
<br />CLIENT agrees to indemnify and hold ECS harmless from all damages, costs, and
<br />attorneys' fees, for any claims alleging errors, omissions, damage, injury or loss
<br />allegedly resulting from Work that was monitored or tested by ECS on a part time
<br />basis.
<br />the possible existence of such a condition. CLIENT agrees it cannot make the resolution of
<br />any dispute with ECS or payment of any amount due to ECS contingent upon ECS signing
<br />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
<br />expenses as stated in the Professional Fees section of the Proposal. Any Estimate
<br />of Professional Fees stated in these Terms shall not be considered as a not -to-
<br />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 />amount, that amount shall be limited to number of hours, visits, trips, tests, borings,
<br />or samples stated in the Proposal.
<br />15.2 CLIENT agrees that all Professional Fees and other unit rates shall be adjusted
<br />annually to account for inflation based on the most recent 12 -month average of the
<br />Consumer Price Index (CPI -U) for all items as established by www.bls.gov when the
<br />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
<br />Changed Condition(s). ECS and CLIENT shall promptly and in good faith negotiate
<br />an amendment to the 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'
<br />invoices, and that timely payment is a material consideration for this agreement. All
<br />payment shall be in U.S. funds drawn upon U.S. banks and in accordance with the
<br />rates and charges set forth in the Professional Fees. Invoices are due and payable
<br />upon receipt.
<br />15.5 If CLIENT disputes all or part of an invoice, CLIENT shall provide ECS with written
<br />notice stating in detail the facts of the dispute within fifteen (15) calendar days of the
<br />invoice. CLIENT 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
<br />(1.5) percent (or the maximum percentage allowed by Law, whichever is lower) of
<br />the invoiced amount per month for any payment received by ECS more than thirty
<br />(30) calendar days from the date of the invoice, excepting any portion of the
<br />invoiced amount in dispute. All payments will be applied to accrued interest first
<br />and then to the unpaid principal amount. Payment of invoices shall not be subject
<br />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
<br />CLIENT'S ability to obtain financing, zoning, approval of governmental or regulatory
<br />agencies, permits, final adjudication of a lawsuit, CLIENT'S successful completion
<br />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 />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
<br />by CLIENT. It is agreed that all costs and legal fees including actual attorney's fees,
<br />and expenses incurred by ECS in obtaining payment under this Agreement, in
<br />perfecting or obtaining a lien, recovery under a bond, collecting any delinquent
<br />amounts due, or executing judgments, shall be reimbursed by CLIENT.
<br />15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of
<br />these Terms, payment of any invoice by the CLIENT shall mean that the CLIENT is
<br />satisfied with ECS' Services and 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
<br />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 />opinion will reduce or eliminate the consequences of any such defective Services.
<br />The correction of defects attributable to ECS' failure to perform in accordance with
<br />the Standard of Care shall be provided at no cost to CLIENT. However, ECS shall
<br />not be responsible for the correction of any deficiency attributable to CLIENT -
<br />furnished information, the errors, omissions, defective materials, or improper
<br />installation of materials by CLIENT's personnel, consultants or contractors, or work
<br />not observed by ECS. CLIENT shall compensate ECS for the costs of correcting
<br />such defects.
<br />16.2 Modifications to reports, documents and plans required as a result of jurisdictional
<br />reviews or CLIENT requests shall not be considered to be defects. CLIENT shall
<br />compensate ECS for the provision of such Services.
<br />17.0 INSURANCE -_ECS represents that it and its subcontractors and subconsultants
<br />maintain Workers Compensation insurance, and that ECS is covered by general liability,
<br />automobile and professional liability insurance policies in coverage amounts it deems
<br />reasonable and adequate. ECS shall furnish certificates of insurance upon request. The
<br />CLIENT is responsible for requesting specific inclusions or limits of coverage that are not
<br />present in ECS insurance package. The cost of such inclusions or coverage increases, if
<br />available, will be at the expense of the CLIENT.
<br />18.0
<br />18.1
<br />14.0 CERTIFICATIONS - CLIENT may request, or governing jurisdictions may require,
<br />ECS to provide a "certification" regarding the Services provided by ECS. Any "certification"
<br />required of ECS by the CLIENT or jurisdiction(s) having authority over some or all aspects
<br />of the Project shall consist of ECS' inferences and professional opinions based on the
<br />limited sampling, observations, tests, and /or analyses performed by ECS at discrete 18.2
<br />locations and times. Such "certifications" shall constitute ECS' professional opinion of a
<br />condition's existence, but ECS does not guarantee that such condition exists, nor does it
<br />relieve other parties of the responsibilities or obligations such parties have with respect to
<br />ECS Proposal No. 06:20895
<br />Page 2 of 3
<br />LIMITATION OF LIABILITY
<br />CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING
<br />ECS' TOTAL LIABILITY TO CLIENT ARISING FROM ECS' PROFESSIONAL LIABILITY, I.E.
<br />PROFESSIONAL ACTS, ERRORS, OR OMISSIONS AND FOR ANY AND ALL CAUSES INCLUDING
<br />NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY,
<br />INJURIES, DAMAGES, CLAIMS, LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING
<br />REASONABLE ATTORNEY'S FEES) RELATING TO PROFESSIONAL SERVICES PROVIDED UNDER
<br />THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. THE ALLOCATION IS AS
<br />FOLLOWS.
<br />18.1.1 If the proposed fees are $10,000 or less, ECS' total aggregate liability to
<br />CLIENT shall not exceed $20,000, or the total fee received for the services
<br />rendered, whichever is greater.
<br />18.1.2 If the proposed fees are in excess of $10,000, ECS' total aggregate liability to
<br />CLIENT shall not exceed $40,000, or the total fee for the services rendered,
<br />whichever is greater.
<br />CLIENT agrees that ECS shall not be responsible for any injury, loss or damage of
<br />any nature, including bodily injury and property damage, arising directly or indirectly,
<br />in whole or in part, from acts or omissions by the CLIENT, its employees, agents,
<br />staff, consultants, contractors, or subcontractors to the extent such injury, damage,
<br />Ver. 06/04/13
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