|
DocuSign Envelope ID:OE71AC55-698C-4D9A-B848-92OF1816167B
<br /> . tm.-AMOIN Is I WMAILIWIG! c1_> wutnedSt, LLP
<br /> -
<br /> •
<br /> Terms and Conditions of Service
<br /> The professional services(the"Services")to be provided by ECS Southeast,LLP["ECS"]pursuant to 7.3 ECS will take reasonable precautions to limit damage to the Site and its improvements
<br /> the Proposal shall be provided in accordance with these Terms and Conditions of Service('Terms"), during the performance of its Services. CLIENT understands that the use of exploration,boring,
<br /> including any addenda as may be incorporated or referenced in writing shall form the Agreement sampling,or testing equipment may cause damage to the Site. The correction and restoration of
<br /> between ECS and Orange County Asset Management Services(Client). such common damage is CLIENT'S responsibility unless specifically included in ECS'Proposal.
<br /> 1.0 INDEPENDENT CONSULTANT STATUS-ECS shall serve as an independent professional 7.4 CLIENT agrees that it will not bring any claims for liability or for injury or loss against
<br /> consultant to CLIENT for Services on the Project and shall have control over,and responsibility for, ECS arising from (i)procedures associated with the exploration, sampling or testing activities
<br /> the means and methods for providing the Services identified in the Proposal,including the retention at the Site,(ii)discovery of Hazardous Materials or suspected Hazardous Materials,or(III)ECS'
<br /> of Subcontractors and Subconsultants findings,conclusions,opinions,recommendations,plans,and/or specifications related to discovery
<br /> 2.0 SCOPE OF SERVICES-It is understood that the fees,reimbursable expenses and time of contamination.
<br /> schedule defined in the Proposal are based on information provided by CLIENT and/or CLIENT'S, 8.0 UNDERGROUND UTILITIES
<br /> agents,contractors and consultants("Contractors"). CLIENT acknowledges that if this information 8.1 ECS shall exercise the Standard of Care in evaluating client-furnished information as well as
<br /> is not current,is incomplete or inaccurate,if conditions are discovered that could not be reasonably information readily and customarily available from public utility locating services(the"Underground
<br /> foreseen,or if CLIENT orders additional services,the scope of services will change,even while the Utility Information")in its effort to identify underground utilities.The extent of such evaluations
<br /> Services are in progress. shall be at ECS'sole discretion.
<br /> 3.0 STANDARD OF CARE 8.2 CLIENT recognizes that the Underground Utility Information provided to or obtained by ECS
<br /> 3.1 In fulfilling its obligations and responsibilities enumerated in the Proposal,ECS shall may contain errors or be incomplete.CLIENT understands that ECS may be unable to identify the
<br /> be expected to comply with and its performance evaluated in light of the standard of care locations of all subsurface utility lines and man-made features.
<br /> expected of professionals in the industry performing similar services on projects of like size 8.3 CLIENT waives,releases,and discharges ECS from and against any claim for damage,injury
<br /> and complexity at that time in the region(the"Standard of Care").Nothing contained in the or loss allegedly arising from or related to subterranean structures(pipes,tanks,cables,or other
<br /> Proposal,the agreed-upon scope of Services,these Terms or any ECS report,opinion,plan utilities,etc.)which are not called to ECS'attention in writing by CLIENT,not correctly shown on
<br /> or other document prepared by ECS shall constitute a warranty or guarantee of any nature the Underground Utility Information and/or not properly marked or located by the utility owners,
<br /> whatsoever. governmental or quasi-governmental locators,or private utility locating services as a result of ECS'
<br /> 3.2 CLIENT understands and agrees that ECS will rely on the facts learned from data gathered or ECS'Subconsultant's request for utility marking services made in accordance with local industry
<br /> during performance of Services as well as those facts provided by the CLIENT and/or CLIENT'S standards.
<br /> contractors and consultants. CLIENT acknowledges that such data collection is limited to specific 9.0 SAMPLES
<br /> areas that are sampled,bored,tested,observed and/or evaluated. Consequently,CLIENT waives 9.1 Soil,rock,water,building materials and/or other samples and sampling by-products obtained
<br /> any and all claims based upon erroneous facts provided by the CLIENT,facts subsequently learned from the Site are and remain the property of CLIENT. Unless other arrangements are requested
<br /> or regarding conditions in areas not specifically sampled,bored,tested,observed or evaluated by by CLIENT and mutually agreed upon by ECS in writing,ECS will retain samples not consumed
<br /> ECS. in laboratory testing for up to sixty(60)calendar days after the first issuance of any document
<br /> 3.3 If a situation arises that causes ECS to believe compliance with CLIENT'S directives would be containing data obtained from such samples.Samples consumed by laboratory testing procedures
<br /> contrary to sound engineering practices,would violate applicable laws,regulations or codes,or will will not be stored.
<br /> expose ECS to legal claims or charges,ECS shall so advise CLIENT. If ECS'professional judgment 9.2 Unless CLIENT directs otherwise,and excluding those issues covered in Section 10.0,CLIENT
<br /> is rejected,ECS shall have the right to terminate its Services in accordance with the provisions of authorizes ECS to dispose of CLIENT'S non-hazardous samples and sampling or testing by-products
<br /> Section 25.0,below. in accordance with applicable laws and regulations.
<br /> 3.4 If CLIENT decides to disregard ECS' recommendations with respect to complying with 10.0 ENVIRONMENTAL RISKS
<br /> applicable laws or regulations,ECS shall determine if applicable law requires ECS to notify the 10.1 When Hazardous Materials are known,assumed,suspected to exist,or discovered at the Site,
<br /> appropriate public officials. CLIENT agrees that such determinations are ECS'sole right to make. ECS will endeavor to protect its employees and address public health,safety,and environmental
<br /> 4.0 CLIENT DISCLOSURES issues in accordance with the Standard of Care. CLIENT agrees to compensate ECS for such efforts.
<br /> 4.1 Where the Services requires ECS to penetrate a surface,CLIENT shall furnish and/or shall 10.2 When Hazardous Materials are known,assumed,or suspected to exist,or discovered at the
<br /> direct CLIENT'S or CLIENT'S Contractors to furnish ECS information identifying the type and location Site,ECS and/or ECS'subcontractors will exercise the Standard of Care in containerizing and labeling
<br /> of utility lines and other man-made objects known,suspected,or assumed to be located beneath such Hazardous Materials in accordance with applicable laws and regulations,and will leave the
<br /> or behind the Site's surface. ECS shall be entitled to rely on such information for completeness and containers on Site. CLIENT is responsible for the retrieval,removal,transport and disposal of such
<br /> accuracy without further investigation,analysis,or evaluation. contaminated samples,and sampling process byproducts in accordance with applicable law and
<br /> 4.2 "Hazardous Materials"shall include but not be limited to any substance that poses or may regulation.
<br /> pose a present or potential hazard to human health or the environment whether contained in a 10.3 Unless explicitly stated in the Scope of Services,ECS will neither subcontract for nor arrange
<br /> product,material,by-product,waste,or sample,and whether it exists in a solid,liquid,semi-solid for the transport,disposal,or treatment of Hazardous Materials. At CLIENT'S written request,ECS
<br /> or gaseous form. CLIENT shall notify ECS of any known, assumed, or suspected regulated, may assist CLIENT in identifying appropriate alternatives for transport,off-site treatment,storage,
<br /> contaminated,or other similar Hazardous Materials that may exist at the Site prior to ECS mobilizing or disposal of such substances,but CLIENT shall be solely responsible for the final selection of
<br /> to the Site. methods and firms to provide such services. CLIENT shall sign all manifests for the disposal of
<br /> 4.3 If any Hazardous Materials are discovered,or are reasonably suspected by ECS after its substances affected by contaminants and shall otherwise exercise prudence in arranging for lawful
<br /> Services begin,ECS shall be entitled to amend the scope of Services and adjust its fees or fee disposal.
<br /> schedule to reflect any additional work or personal protective equipment and/or safety precautions 10.4 In those instances where ECS is expressly retained by CLIENT to assist CLIENT in the disposal
<br /> required by the existence of such Hazardous Materials. of Hazardous Materials,samples,or wastes as part of the Proposal,ECS shall do so only as CLIENT'S
<br /> 5.0 INFORMATION PROVIDED BY OTHERS-CLIENT waives,releases and discharges ECS agent(notwithstanding any other provision of this Agreement to the contrary). ECS will not assume
<br /> from and against any claim for damage,injury or loss allegedly arising out of or in connection with the role of,nor be considered a generator,storer,transporter,or disposer of Hazardous Materials.
<br /> errors,omissions,or inaccuracies in documents and other information in any form provided to ECS 10.5 Subsurface sampling may result in unavoidable cross-contamination of certain subsurface
<br /> by CLIENT or CLIENT's Contractors,including such information that becomes incorporated into ECS areas,as when a probe or excavation/boring device moves through a contaminated zone and
<br /> documents. links it to an aquifer, underground stream, pervious soil stratum,or other hydrous body not
<br /> 6.0 CONCEALED RISKS-CLIENT acknowledges that special risks are inherent in sampling,testing previously contaminated,or connects an uncontaminated zone with a contaminated zone. Because
<br /> and/or evaluating concealed conditions that are hidden from view and/or neither readably sampling is an essential element of the Services indicated herein,CLIENT agrees this risk cannot
<br /> apparent nor easily accessible,e.g.,subsurface conditions,conditions behind a wall,beneath a floor, be eliminated. Provided such services were performed in accordance with the Standard of Care,
<br /> or above a ceiling.Such circumstances require that certain assumptions be made regarding existing CLIENT waives,releases and discharges ECS from and against any claim for damage,injury,or loss
<br /> conditions,which may not be verifiable without expending additional sums of money or destroying allegedly arising from or related to such cross-contamination.
<br /> otherwise adequate or serviceable portions of a building or component thereof.Accordingly,ECS 10.6 CLIENT understands that a Phase I Environmental Site Assessment(ESA)is conducted solely
<br /> shall not be responsible for the verification of such conditions unless verification can be made by to permit ECS to render a professional opinion about the likelihood of the site having a Recognized
<br /> simple visual observation.CLIENT agrees to bear any and all costs,losses,damages and expenses Environmental Condition on,in,beneath,or near the Site at the time the Services are conducted.
<br /> (including,but not limited to,the cost of ECS'additional services)in any way arising from or in No matter how thorough a Phase I ESA study may be,findings derived from its conduct are highly
<br /> connection with the existence or discovery of such concealed or unknown conditions. limited and ECS cannot know or state for an absolute fact that the Site is unaffected or adversely
<br /> 7.0 RIGHT OF ENTRY/DAMAGE RESULTING FROM SERVICES affected by one or more Recognized Environmental Conditions. CLIENT represents and warrants
<br /> 7.1 CLIENT warrants that it possesses the authority to grant ECS right of entry to the site for that it understands the limitations associated with Phase I ESAs.
<br /> the performance of Services. CLIENT hereby grants ECS and its agents,subcontractors and/or 11.0 OWNERSHIP OF DOCUMENTS
<br /> subconsultants("Subconsultants"),the right to enter from time to time onto the property in order 11.1 ECS shall be deemed the author and owner(or licensee)of all documents,technical reports,
<br /> for ECS to perform its Services. CLIENT agrees to indemnify and hold ECS and its Subconsultants letters,photos,boring logs,field data,field notes,laboratory test data,calculations,designs,plans,
<br /> harmless from any claims arising from allegations that ECS trespassed or lacked authority to access specifications, reports, or similar documents and estimates of any kind furnished by it [the
<br /> the Site. "Documents of Service']and shall retain all common law,statutory and other reserved rights,
<br /> 7.2 CLIENT warrants that it possesses all necessary permits,licenses and/or utility clearances for including copyrights. CLIENT shall have a limited, non-exclusive license to use copies of the
<br /> the Services to be provided by ECS except where ECS'Proposal explicitly states that ECS will obtain Documents of Service provided to it in connection with its Project for which the Documents of
<br /> such permits,licenses,and/or utility clearances. Service are provided until the completion of the Project.
<br /> Page 8 E�c
<br />
|