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DocuSign Envelope ID:B01E86EC-6FC1-43CE-8E90-79CF68C52249
<br /> 10.6 CLIENT understands that a Phase I Environmental Site Assessment (ESA) is the possible existence of such a condition. CLIENT agrees it cannot make the resolution of
<br /> conducted solely to permit ECS to render a professional opinion about the likelihood any dispute with ECS or payment of any amount due to ECS contingent upon ECS signing
<br /> of the site having a Recognized Environmental Condition on, in, beneath,or near any such"certification"
<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 15.0 BILLINGS AND PAYMENTS
<br /> cannot know or state for an absolute fact that the Site is unaffected or adversely 15.1 Billings will be based on the unit rates, plus travel costs,and other reimbursable
<br /> affected by one or more Recognized Environmental Conditions. CLIENT represents expenses as stated in the Professional Fees section of the Proposal. Any Estimate
<br /> and warrants that it understands the limitations associated with Phase I ESAs. 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 /> 11.0 OWNERSHIP OF DOCUMENTS understands and agrees that even if ECS agrees to a lump sum or not-to-exceed
<br /> 11.1 ECS shall be deemed the author and owner(or licensee)of all documents,technical amount,that amount shall be limited to number of hours,visits,trips,tests,borings,
<br /> reports, letters, photos, boring logs, field data, field notes, laboratory test data, or samples stated in the Proposal.
<br /> calculations, designs, plans, specifications, reports, or similar documents and 15.2 CLIENT agrees that all Professional Fees and other unit rates shall be adjusted
<br /> estimates of any kind furnished by it[the"Documents of Service']and shall retain all annually to account for inflation based on the most recent 12-month average of the
<br /> common law, statutory and other reserved rights, including copyrights. CLIENT Consumer Price Index(CPI-U)for all items as established by www.bls.gov when the
<br /> shall have a limited, non-exclusive license to use copies of the Documents of CPI-U exceeds an annual rate of 2.0%.
<br /> Service provided to it in connection with the Project for which the Documents of 15.3 Should ECS identify a Changed Condition(s), ECS shall notify the CLIENT of the
<br /> Service are provided until the completion of the Project. Changed Condition(s). ECS and CLIENT shall promptly and in good faith negotiate
<br /> 11.2 ECS' Services are performed and Documents of Service are provided for the an amendment to the Scope of Services,Professional Fees,and time schedule.
<br /> CLIENT'S sole use. CLIENT understands and agrees that any use of the 15.4 CLIENT recognizes that time is of the essence with respect to payment of ECS'
<br /> Documents Service anyone other than the CLIENT,it's licensed Consultants invoices,and that timely payment is a material consideration for this agreement. All
<br /> and its contractors is nootf permitted. CLIENT further agrees to indemnify and hold payment shall be in U.S.funds drawn upon U.S.banks and in accordance with the
<br /> ECS harmless for any errors,omissions or damage resulting from its contractors'use of ECS'Documents of Service. rates and charges set forth in the Professional Fees. Invoices are due and payable
<br /> upon receipt.
<br /> 11.3 CLIENT agrees to not use ECS'Documents of Service for the Project if the Project 15.5 If CLIENT disputes all or part of an invoice,CLIENT shall provide ECS with written
<br /> is subsequently modified in scope,structure or purpose without ECS'prior written notice stating in detail the facts of the dispute within fifteen(15)calendar days of the
<br /> consent. Any reuse without ECS'written consent shall be at CLIENT'S sole risk and without liability to ECS or to ECS' subcontractor(s). CLIENT agrees to invoice. CLIENT agrees to pay the undisputed amount of such invoice promptly.
<br /> indemnify and hold ECS harmless for any errors, omissions or damage resulting 15.6 ECS reserves the right to charge CLIENT an additional charge of one-and-one-half
<br /> from its use of ECS'Documents of Service after any modification in scope,structure (1.5)percent(or the maximum percentage allowed by Law,whichever is lower)of
<br /> or purpose. the invoiced amount per month for any payment received by ECS more than thirty
<br /> 11.4 CLIENT agrees to not make any modification to the Documents of Service without (30) calendar days from the date of the invoice, excepting any portion of the
<br /> the prior written authorization of ECS. To the fullest extent permitted by law, invoiced amount in dispute. All payments will be applied to accrued interest first
<br /> CLIENT agrees to indemnify,defend, and hold ECS harmless from any damage, and then to the unpaid principal amount. Payment of invoices shall not be subject
<br /> loss,claim,liability or cost(including reasonable attorneys'fees and defense costs) to unilateral discounting or set-offs by CLIENT.
<br /> arising out of or in connection with any unauthorized modification of the Documents 15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon
<br /> of Service by CLIENT or any person or entity that acquires or obtains the CLIENT'S ability to obtain financing,zoning,approval of governmental or regulatory
<br /> Documents of Service from or through CLIENT. CLIENT represents and warrants agencies,permits,final adjudication of a lawsuit,CLIENT'S successful completion
<br /> that the Documents of Service shall be used only as submitted by ECS. 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 /> 12.0 SAFETY Retainage shall not be withheld from any payment,nor shall any deduction be made
<br /> 12.1 Unless expressly agreed to in writing in its Proposal,CLIENT agrees that ECS shall from any invoice on account of penalty,liquidated damages,or other sums incurred
<br /> have no responsibility whatsoever for any aspect of site safety other than for its own by CLIENT. It is agreed that all costs and legal fees including actual attorney's fees,
<br /> employees. Nothing herein shall be construed to relieve CLIENT and/or its and expenses incurred by ECS in obtaining payment under this Agreement, in
<br /> contractors, consultants or other parties from their responsibility for site safety. perfecting or obtaining a lien, recovery under a bond, collecting any delinquent
<br /> CLIENT also represents and warrants that the General Contractor is solely amounts due,or executing judgments,shall be reimbursed by CLIENT.
<br /> responsible for Project site safety and that ECS personnel may rely on the safety 15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of
<br /> measures provided by the General Contractor. these Terms,payment of any invoice by the CLIENT shall mean that the CLIENT is
<br /> 12.2 In the event ECS assumes in writing limited responsibility for specified safety satisfied with ECS'Services and is not aware of any defects in those Services.
<br /> issues,the acceptance of such responsibilities does not and shall not be deemed an 16.0 DEFECTS IN SERVICE
<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, 16.1 CLIENT,its personnel,its consultants,and its contractors shall promptly inform ECS
<br /> blasting,or other construction activities. 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 /> 13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES opinion will reduce or eliminate the consequences of any such defective Services.
<br /> 13.1 CLIENT understands that construction testing and observation services are The correction of defects attributable to ECS'failure to perform in accordance with
<br /> provided in an effort to reduce, but cannot eliminate,the risk of problems arising the Standard of Care shall be provided at no cost to CLIENT. However,ECS shall
<br /> during or after construction or remediation. CLIENT agrees that the provision of not be responsible for the correction of any deficiency attributable to CLIENT-
<br /> such Services does not create a warranty or guarantee of any type. furnished information, the errors, omissions, defective materials, or improper
<br /> 13.2 Monitoring and/or testing services provided by ECS shall not in any way relieve the installation of materials by CLIENT's personnel,consultants or contractors,or work
<br /> CLIENT'S contractor(s)from their responsibilities and obligations for the quality or not observed by ECS. CLIENT shall compensate ECS for the costs of correcting
<br /> such defects.
<br /> completeness of construction as well as their obligation to comply with applicable
<br /> laws,codes,and regulations. 16.2 Modifications to reports,documents and plans required as a result of jurisdictional
<br /> 13.3 ECS has no responsibility whatsoever for the means, methods, techniques, reviews or CLIENT requests shall not be considered to be defects. CLIENT shall
<br /> compensate ECS for the provision of such Services.
<br /> sequencing or procedures of construction selected, for safety precautions and
<br /> programs incidental to work or services provided by any contractor or other 17.0 INSURANCE-_ECS represents that it and its subcontractors and subconsultants
<br /> consultant.ECS does not and shall not have or accept authority to supervise,direct, maintain Workers Compensation insurance, and that ECS is covered by general liability,
<br /> control, or stop the work of any contractor or consultant or any of their automobile and professional liability insurance policies in coverage amounts it deems
<br /> subcontractors or subconsultants. reasonable and adequate. ECS shall furnish certificates of insurance upon request. The
<br /> 13.4 ECS strongly recommends that CLIENT retain ECS to provide construction CLIENT is responsible for requesting specific inclusions or limits of coverage that are not
<br /> monitoring and testing services on a full time basis to lower the risk of defective or present in ECS insurance package. The cost of such inclusions or coverage increases,if
<br /> incomplete Work being installed by CLIENT'S contractor(s). If CLIENT elects to available,will be at the expense of the CLIENT.
<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 18.0 LIMITATION OF LIABILITY
<br /> occur and that defective or incomplete work may result and not be detected by ECS' 18.1 CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING
<br /> part time monitoring and testing. Unless the CLIENT can show that the error or ECS'TOTAL LIABILITY TO CLIENT ARISING FROM ECS' PROFESSIONAL LIABILITY, I.E.
<br /> omission is contained in ECS' reports, CLIENT waives, releases and discharges PROFESSIONAL ACTS,ERRORS,OR OMISSIONS AND FOR ANY AND ALL CAUSES INCLUDING
<br /> ECS from and against any other claims for errors,omissions,damages,Injuries,or NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY,
<br /> loss alleged to arise from defective or incomplete work that was monitored or tested INJURIES, DAMAGES, CLAIMS, LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING
<br /> by ECS on a part time basis. Except as set forth In the preceding sentence, REASONABLE ATTORNEY'S FEES)RELATING TO PROFESSIONAL SERVICES PROVIDED UNDER
<br /> CLIENT agrees to indemnify and hold ECS harmless from all damages,Costs,and THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. THE ALLOCATION IS AS
<br /> attorneys'fees,for any claims alleging errors, omissions, damage, injury or loss FOLLOWS.
<br /> allegedly resulting from Work that was monitored or tested by ECS on a part time 18.1.1 If the proposed fees are $10,000 or less, ECS' total aggregate liability to
<br /> basis. CLIENT shall not exceed $20,000, or the total fee received for the services
<br /> 14.0 CERTIFICATIONS-CLIENT may request,or governing jurisdictions may require, rendered,whichever is greater.
<br /> ECS to provide a"certification'regarding the Services provided by ECS. Any"certification" 18.1.2 If the proposed fees are in excess of$10,000,ECS'total aggregate liability to
<br /> required of ECS by the CLIENT or jurisdiction(s)having authority over some or all aspects CLIENT shall not exceed$40,000,or the total fee for the services rendered,
<br /> of the Project shall consist of ECS' inferences and professional opinions based on the whichever is greater.
<br /> limited sampling, observations, tests, and/or analyses performed by ECS at discrete 18.2 CLIENT agrees that ECS shall not be responsible for any injury,loss or damage of
<br /> locations and times. Such"certifications'shall constitute ECS' professional opinion of a any nature,including bodily injury and property damage,arising directly or indirectly,
<br /> condition's existence,but ECS does not guarantee that such condition exists,nor does it in whole or in part,from acts or omissions by the CLIENT,its employees,agents,
<br /> relieve other parties of the responsibilities or obligations such parties have with respect to staff,consultants,contractors,or subcontractors to the extent such injury,damage,
<br /> ECS Proposal No.06:21174 Page 1 of 3 Ver.06/04/13
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