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DocuSign Envelope ID:DEE004B4-A2DB-42BB-8896-BA1873942328
<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 that it understands the limitations 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 /> 11.0 OWNERSHIP OF DOCUMENTS limited to number of hours, visits, trips, tests, borings, or samples stated in the
<br /> 11.1 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[the"Documents of Service']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 2.0%.
<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,professional 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 /> CLIENT'S sole use. CLIENT understands and agrees that any use of the invoices,and that timely payment is a material consideration for this Agreement. 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 contractors'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 for the Project if the Project is subsequently modified in scope,structure or notice stating in detail the facts of the dispute within fifteen(15)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 the undisputed amount of such invoice
<br /> promptly.
<br /> and without liability to ECS or its Subconsultants. CLIENT agrees to indemnify and
<br /> hold ECS harmless for any errors,omissions or Damage resulting from its use of 15.6 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 /> the prior written authorization of ECS. To the fullest extent permitted by law, (30) calendar days from the date the invoice, excepting any portion of the
<br /> CLIENT agrees to indemnify, defend, and hold ECS harmless from any damage, invoiced amount dispute. All payments
<br /> ents will be applied to accrued interest first
<br /> loss,claim,liability or cost(including reasonable attorneys'fees and defense costs) and then to the unpaid principal amount. Payment of invoices shall not be subject
<br /> 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 15.7 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 Project, 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 Retainage 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 and/or its by CLIENT. It is agreed that all costs and legal fees including actual attorney's 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 be 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 SERVICE
<br /> not limited to those relating to excavating,fall protection,shoring,drilling,backfilling,
<br /> blasting,or other construction activities. 16.1 CLIENT and CLIENT's Contractors shall promptly inform ECS during active work on
<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 correction 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 remediation. CLIENT agrees that the provision of Care shall be provided at no cost to CLIENT. However, ECS shall not be
<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 Monitoring and/or testing services provided by ECS shall not in any way relieve the information, the errors, omissions, defective materials, or improper installation of
<br /> CLIENT'S contractor(s)from their responsibilities and obligations for the quality or materials by CLIENT
<br /> shall personnel,consultants c contractors, ti 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 /> 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 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 /> 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 Contractors. If CLIENT elects to available,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 /> and/or testing, CLIENT accepts the risk that a lower level of construction quality 18.0 LIMITATION OF LIABILITY
<br /> may occur and that defective or incomplete work may result and not be detected by 18.1 CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING
<br /> ECS' part time monitoring and testing In exchange for CLIENT'S receipt of an ECS' TOTAL LIABILITY 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 NEGLIGENCE, 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 arise 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 ALLOCATION IS AS
<br /> sentence,CLIENT agrees to indemnify and hold ECS harmless from all Damages, FOLLOWS.
<br /> costs,and attorneys'fees,for any claims alleging errors,omissions,damage,injury 18.1.1 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"certification"regarding the Services provided by ECS. Any"certification" 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, and/or 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 acts 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 loss 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 person/entities for whom CLIENT is
<br /> any dispute with ECS or payment of any amount due to ECS contingent upon ECS signing legally liable.
<br /> any such"certification." 18.3 CLIENT agrees that ECS'liability for all non-professional liability arising out of this
<br /> 15.0 BILLINGS AND PAYMENTS Agreement or the services provided as a result of the Proposal be limited to
<br /> $500,000.
<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 /> ECS Proposal No:06:22468 Page 2 of 3 Ver.06/14/13
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