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DocuSign Envelope ID: 1 C70F9FE-526C-4CE4-94BA-7079005l l B9B
<br /> affected by one or more Recognized Environmental Conditions. CLIENT represents of professional fees stated shall not be considered as a not-to-exceed or lump sum
<br /> and warrants Ihat it understands the Iimiladons associated with Phase I ESAs. amount unless otherwise explicitly stated. CLIENT understands and agrees that
<br /> even if ECS agrees to a lump sum or not-to-exceed amount,that amount shall be
<br /> 111.0 OWNERSHIP OF DOCUMENTS limited to number of hours,visits, trips, tests,borings, or samples stated in the
<br /> 11 A ECS shall be deemed the author and owner(or licensee)of all documents,technical Proposal.
<br /> reports, letters, photos, boring logs,field data, field notes, laboratory test data, 15.2 CLIENT agrees That all professional fees and other unit rates may be adjusted
<br /> calculations, designs, plans, specifications, reports, or similar documents and annually to account for Inflation based on the most recent 12-month average of the
<br /> estimates of any kind furnished by it ghe"Documents of Servicel and shall retain all Consumer Price Index(CPI-U)for all items as established by www.bls.gov when the
<br /> common law,statutory and other reserved rights. Including copyrights. CLIENT CPI-U exceeds an annual rate of 2A%,
<br /> shall have a limited, non-exclusive license to use copies of the Documents of 15.3 Should ECS identify a Changed Condition(s), ECS shall notify the CLIENT of the
<br /> Service provided to It in connection with its Project for which the Documents of Changed Condition(s). ECS and CLIENT shall promptly and in good faith negotiate
<br /> Service are provided until the completion of the Project. an amendment to the scope of Services,profession at fees,and time schedule.
<br /> 11.2 ECS' Services are performed and Documents of Service are provided for the 15.4 CLIENT recognizes that time is of the essence with respect to payment of ECS'
<br /> CLIENTS sole use. CLIENT understands and agrees that any use of the Invoices,and that timely payment is a material consideration for this Agreemenl. All
<br /> Documents of Service by anyone other than the CLIENT and its Contractors Is not payment shall be in U.S.funds drawn upon U.S.banks and in accordance with the
<br /> permitted. CLIENT further agrees to indemnify and hold ECS harmless for any rates and charges set forth in the professional Fees. Invoices are due and payable
<br /> errors,omissions or damage resulting from Its conlraclors'use of ECS'Documents upon receipt.
<br /> of Service.
<br /> 11.3 Without ECS'prior written consent.CLIENT agrees to not use ECS'documents of 15.5 If CLIENT disputes all or part of an invoice,CLIENT shall provide ECS with written
<br /> Service far the Project€f the Project is subsequently modified Tn scope,structure or notice Staling in detalI the fads of The dispute within fifteen(7 5)calendar days of the
<br /> purpose. Any reuse without ECS'written consent shall be at CLIENT'S sole risk invoice date. CLIENT agrees to pay She undisputed amount of such invoice
<br /> and without liability to ECS or its Subconsultants. CLIENT agrees to Indemnify and promptly'
<br /> hold ECS harmless for any errors,omissions or Damage resulting from its use of 15A ECS reserves the right to charge CLIENT an additional charge of one-and-one-half
<br /> ECS'Documents of Service after any modification In scope,structure or purpose. (1.5)percent(or the maximum percentage allowed by Law,whichever is lower)of
<br /> 11.4 CLIENT agrees to not make any modification to the Documents of Service without 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 /> the prior written authorization or 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 than to the unpaid principal amount. Payment of invoices shall not be subject
<br /> loss,claim,liability or cost(ncluding 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
<br /> of Service by CLIENT or any person or entity that acquires or obtains the 153 CLIENT agrees that its obligation to pay for the Services is not contingent upon
<br /> Documents of Service from or through CLIENT. CLIENT represents and warrants CLIENT'S ability to obtain financing,zoning,approval of governmental or regulatory
<br /> that the Documents of Service shall be used only as submitted by ECS. agencies,permits,final adjudication of a lawsuit.CLIENT'S successful completion
<br /> of the PrajeCl, settlement of a real estate transaction, receipt of payment from
<br /> 12.0 SAFETY CLIENT's client, or any other event unrelated to ECS provision of Services.
<br /> 12.1 Unless expressly agreed to in writing in its Proposal.CLIENT agrees that ECS shall Relalnage shall not be withheld from any payment,nor shall any deduction be made
<br /> have no responsibility whatsoever for any aspect of site safety other than for its own from any Invoice on account of penalty,liquidated damages,or other sums incurred
<br /> employees. Nothing herein shall be construed to relieve CLIENT andlor its by CLIENT. It is agreed that all costs and legal fees including actual attorneys fees.
<br /> Contractors from their responsibility for site safety. CLIENT also represents and and expenses incurred by ECS In obtaining payment under this Agreement, in
<br /> warrants that the General Contractor is solely responsible for Project site safety and perfecting or obtaining a lien, recovery under a bond, collecting any delinquent
<br /> that ECS personnel may rely on the safety measures provided by the General amounts due,or executing judgments,shall he reimbursed by CLIENT.
<br /> Contractor. 15.8 Unless CLIENT has provided notice to ECS In accordance with Section 16.0 of
<br /> 12.2 In the event ECS assumes in writing limited responsibility for specified safety these Terms,payment of any Invoice by the CLIENT shall mean that the CLIENT is
<br /> Issues,the acceptance of such responsibilities does not and shall not be deemed an satisfied with ECS'Services and is not aware of any defects in those Services.
<br /> acceptance of responsibility for any other non-specified safety issues,including,but 16.0 DEFECTS IN SERMCE
<br /> not limited to those relating to excavating,fall protection,shoring,drilling,backfilling, t6 1 CLIENT and CLIENTS Contractors shall promptly Inform ECS during active work on
<br /> blasting,or older construction activities. p p y g
<br /> any project of any actual or suspected defects In the Services so to permit ECS to
<br /> 13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES take such prompt,effective remedial measures that in ECS'opinion will reduce or
<br /> 13.1 CLIENT understands that construction testing and observation services are eliminate The consequences of any such defective Services. The correclion of
<br /> provided In an effort to reduce,but cannot eliminate,the risk of problems arising defects attributable to ECS'failure to perform In accordance with the Standard of
<br /> during or after construction or remedialion. CLIENT agrees that the provision of Care shall be provided at no cost to CLIENT. However, ECS shall not he
<br /> such Services does not create a warranty or guarantee of any type. responsible for the correction of any deficiency attributable to client-furnished
<br /> 13.2 Mon itaring andlor testing services provided by ECS shall not in any way relieve the Information,the errors,omissions,defective materials, or improper Installation of
<br /> CLIENTS contractor costs from their responsibilities and obligations for the quality or materials by CLIENT'S personnel,Consultants contractors,or work not observed
<br /> completeness of construction as well as their obligation to comply with applicable by ECS.CLIENT shall compensate ECS For the costs of correcting such defects.
<br /> laws,codes,and regulations. 16.2 Modifications to reports,documents and plans required as a result of jurisdictional
<br /> 133 ECS has no responsibility whatsoever for the means, methods, techniques, reviews or CLIENT requests shall not be considered to be defects. CLIENT shalt
<br /> compensate ECS for the provision of such Services.
<br /> sequencing or procedures of construcllon 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[Ls subcontractors and subconsullants
<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 of CLIENT'S Contractors or any of their automobile and professional liability insurance policies in coverage amounts It deems
<br /> subcontractors. reasonable and adequate. ECS shall furnish Certificates of Insurance upon request. The
<br /> 13A ECS strongly recommends that CLIENT retain ECS to provide Construction CLIENT Is responsible for requesting specific Inclusions orlimits of coverage Thal 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 Contractors. If CLIENT elects to avaitabla.will be at the expense of the CLIENT.
<br /> retain ECS on a part-time or on-call basis for any aspect of construction monitoring
<br /> andlor testing, CLIENT accepts the risk that a lower level of construction quality 18.0 LIMITATIQN OF LIABILITY
<br /> may occur and that defective or incomplete work may result and not be detected by 18.1 CLI E NT AGREES TO Al.LOCAT E C E RTAI N RISKS ASSOCIATED WITH THE PROJECT BY LIMITING
<br /> ECS' part lime monitoring and testing in exchange for CLIENT'S receipt of an ECS'TOTAL UA131LITY TO CLIENT ARISING FROM ECS' PROFESSIONAL LIABILITY, I.E.
<br /> immediate COST savings. Unless the CLIENT Can Show that ECS' errors or PROFESSIONAL ACTS,ERRORS,OR OMISSIONS AND FOR ANY AND ALL CAUSES INCLUDING
<br /> omissions are contained in ECS'reports,CLIENT waives,releases and discharges NEOLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH of WARRANTY,
<br /> ECS from and against any other claims for errors,omissions,damages,Injuries,or INJURIES, DAMAGES, CLAIMS, LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING
<br /> loss alleged to art se from defective or Incomplete work that was monitored or tested REASONABLE ATTORNEY'S FEES)RELATING TO PROFESSIONAL SERVICES PROVIDED UNDER
<br /> by ECS on a part-time or on-call basis. Except as set forth in the preceding THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. THE ALLOCAnON IS AS
<br /> sentence,CLIENT agrees to indemnify and hold ECS harmless from all Damages, FOLLOWS.
<br /> costs,and alorneys'fees,for any claims alleging errors,omissions,damage,injury 18.1A If the proposed fees are $10.000 or less. ECS' total aggregate liability to
<br /> or loss allegedly resulting from work that was monitored or tested by ECS on a part- CLIENT shall not exceed$20.000,or the total fee received for the services
<br /> time or on-call basis. rendered,whichever is greater.
<br /> 14.0 CERTIFICATIONS-CLIENT may request,or governing jurisdictions may require, 18.1.2 If the proposed fees are in excess of$10,000,ECS'total aggregate liability to
<br /> ECS to provide a"certlfiration"regarding the Services provided by ECS. Any"certifcatiorV CLIENT shall not exceed$50,000,or the total fee for the services rendered.
<br /> required of ECS by the CLIENT or jurisdiction(s)having authority over some or all aspects whichever Is greater.
<br /> of the Project shall consist of ECS' inferences and professional opinions based on the 18.2 CLIENT agrees that ECS shall not be responsible for any injury,loss or damage of
<br /> limited sampling, observations, tests, andlor analyses performed by ECS at discrete any nature,including bodily injury and property damage,arising directly or indirectly,
<br /> locations and times. Such'certifications"shall constitute ECS'professional opinion of a In whole or In part,from ads or omissions by the CLIENT,its employees,agents,
<br /> condition's existence,but ECS does not guarantee that such condition exists,nor does it staff,consultants,contractors,or subcontractors to the extent such Injury,damage,
<br /> relieve other parties of the responsibilities or obligations such parties have with respect to or Toss is caused by acts or omissions of CLIENT.Its employees, agents,staff,
<br /> the possible existence of such a Condition. CLIENT agrees It cannot make the resolution of consultants, contractors, subcontractors or personlenlities for whom CLIENT Is
<br /> any dispute with ECS or payment of any amount due to ECS contingent upon ECS signing legally fable.
<br /> any such"Certification." 18.3 CLIENT agrees that ECS'liability for all non-professlonal liability arising out of this
<br /> 16.0 BILLINGS AND PAYMENTS Agreement or the services provided as a result of the Proposal be limited to
<br /> $600,000.
<br /> 15.1 Billings will be based on the unit rates,plus travel costs,and other reimbursable
<br /> expenses as staled In the professional fees section of the Proposal. Any estimate
<br /> ECS Proposal No:06:21628 Page 2 of 3 Ver,=14113
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