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DocuSign Envelope ID:OE71AC55-698C-4D9A-B848-92OF1816167B
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<br /> Management
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<br /> Terms and Conditions of Service
<br /> 11.2 ECS'Services are performed and Documents of Service are provided for the CLIENT'S sole 15.4 CLIENT recognizes that time is of the essence with respect to payment of ECS'invoices,
<br /> use. CLIENT understands and agrees that any use of the Documents of Service by anyone other and that timely payment is a material consideration for this Agreement. All payment shall be in
<br /> than the CLIENT and its Contractors is not permitted. CLIENT further agrees to indemnify and U.S.funds drawn upon U.S.banks and in accordance with the rates and charges set forth in the
<br /> hold ECS harmless for any errors,omissions or damage resulting from its contractors'use of ECS' professional Fees. Invoices are due and payable upon receipt.
<br /> Documents of Service. 15.5 If CLIENT disputes all or part of an invoice,CLIENT shall provide ECS with written notice
<br /> 11.3 Without ECS'prior written consent,CLIENT agrees to not use ECS'Documents of Service stating in detail the facts of the dispute within fifteen(15)calendar days of the invoice date. CLIENT
<br /> for the Project if the Project is subsequently modified in scope,structure or purpose. Any reuse agrees to pay the undisputed amount of such invoice promptly.
<br /> without ECS'written consent shall be at CLIENT'S sole risk and without liability to ECS or its 15.6 ECS reserves the right to charge CLIENT an additional charge of one-and-one-half(1.5)
<br /> Subconsultants. CLIENT agrees to indemnify and hold ECS harmless for any errors,omissions percent(or the maximum percentage allowed by Law,whichever is lower)of the invoiced amount
<br /> or Damage resulting from its use of ECS'Documents of Service after any modification in scope, per month for any payment received by ECS more than thirty(30)calendar days from the date of
<br /> structure or purpose. the invoice,excepting any portion of the invoiced amount in dispute. All payments will be applied
<br /> 11.4 CLIENT agrees to not make any modification to the Documents of Service without the prior to accrued interest first and then to the unpaid principal amount. Payment of invoices shall not be
<br /> written authorization of ECS.To the fullest extent permitted by law,CLIENT agrees to indemnify, subject to unilateral discounting or set-offs by CLIENT.
<br /> defend,and hold ECS harmless from any damage,loss,claim,liability or cost(including reasonable 15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon CLIENT'S
<br /> attorneys' fees and defense costs) arising out of or in connection with any unauthorized ability to obtain financing,zoning,approval of governmental or regulatory agencies,permits,final
<br /> modification of the Documents of Service by CLIENT or any person or entity that acquires or adjudication of a lawsuit,CLIENT'S successful completion of the Project,settlement of a real estate
<br /> obtains the Documents of Service from or through CLIENT. CLIENT represents and warrants that transaction,receipt of payment from CLIENT's client,or any other event unrelated to ECS provision
<br /> the Documents of Service shall be used only as submitted by ECS. of Services. Retainage shall not be withheld from any payment,nor shall any deduction be made
<br /> 12.0 SAFETY from any invoice on account of penalty,liquidated damages,or other sums incurred by CLIENT. It is
<br /> 12.1 Unless expressly agreed to in writing in its Proposal,CLIENT agrees that ECS shall have no agreed that all costs and legal fees including actual attorney's fees,and expenses incurred by ECS in
<br /> responsibility whatsoever for any aspect of site safety other than for its own employees.Nothing obtaining payment under this Agreement,in perfecting or obtaining a lien,recovery under a bond,
<br /> herein shall be construed to relieve CLIENT and/or its Contractors from their responsibility for site collecting any delinquent amounts due,or executing judgments,shall be reimbursed by CLIENT.
<br /> safety. CLIENT also represents and warrants that the General Contractor is solely responsible for 15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of these Terms,
<br /> Project site safety and that ECS personnel may rely on the safety measures provided by the General payment of any invoice by the CLIENT shall mean that the CLIENT is satisfied with ECS'Services and
<br /> Contractor. is not aware of any defects in those Services.
<br /> 12.2 In the event ECS assumes in writing limited responsibility for specified safety issues,the 16.0 DEFECTS IN SERVICE
<br /> acceptance of such responsibilities does not and shall not be deemed an acceptance of 16.1 CLIENT and CLIENT's Contractors shall promptly inform ECS during active work on any project
<br /> responsibility for any other non-specified safety issues,including,but not limited to those relating of any actual or suspected defects in the Services so to permit ECS to take such prompt,effective
<br /> to excavating,fall protection,shoring,drilling,backfilling,blasting,or other construction activities. remedial measures that in ECS'opinion will reduce or eliminate the consequences of any such
<br /> 13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES defective Services. The correction of defects attributable to ECS'failure to perform in accordance
<br /> 13.1 CLIENT understands that construction testing and observation services are provided in an with the Standard of Care shall be provided at no cost to CLIENT. However,ECS shall not be
<br /> effort to reduce,but cannot eliminate,the risk of problems arising during or after construction responsible for the correction of any deficiency attributable to client-furnished information,the
<br /> or remediation. CLIENT agrees that the provision of such Services does not create a warranty or errors,omissions,defective materials,or improper installation of materials by CLIENT's personnel,
<br /> guarantee of any type. consultants or contractors,or work not observed by ECS.CLIENT shall compensate ECS for the costs
<br /> 13.2 Monitoring and/or testing services provided by ECS shall not in any way relieve the CLIENT'S of correcting such defects.
<br /> contractor(s) from their responsibilities and obligations for the quality or completeness of 16.2 Modifications to reports,documents and plans required as a result of jurisdictional reviews
<br /> construction as well as their obligation to comply with applicable laws,codes,and regulations. or CLIENT requests shall not be considered to be defects. CLIENT shall compensate ECS for the
<br /> 13.3 ECS has no responsibility whatsoever for the means,methods,techniques,sequencing or provision of such Services.
<br /> procedures of construction selected,for safety precautions and programs incidental to work or 17.0 INSURANCE-ECS represents that it and its subcontractors and Subconsultants maintain
<br /> services provided by any contractor or other consultant.ECS does not and shall not have or accept workers compensation insurance,and that ECS is covered by general liability,automobile and
<br /> authority to supervise,direct,control,or stop the work of any of CLIENT'S Contractors or any of their professional liability insurance policies in coverage amounts it deems reasonable and adequate.
<br /> subcontractors. ECS shall furnish certificates of insurance upon request.The CLIENT is responsible for requesting
<br /> 13.4 ECS strongly recommends that CLIENT retain ECS to provide construction monitoring and specific inclusions or limits of coverage that are not present in ECS insurance package. The cost of
<br /> testing services on a full time basis to lower the risk of defective or incomplete work being installed such inclusions or coverage increases,if available,will be at the expense of the CLIENT.
<br /> by CLIENT'S Contractors. If CLIENT elects to retain ECS on a part-time or on-call basis for any aspect 18.0 LIMITATION OF LIABILITY
<br /> of construction monitoring and/or testing,CLIENT accepts the risk that a lower level of construction 18.1 CLIENT agrees to allocate certain risks associated with the Project by limiting ECS'total
<br /> quality may occur and that defective or incomplete work may result and not be detected by ECS' liability to CLIENT arising from ECS'professional liability,i.e.professional acts,errors,or
<br /> part time monitoring and testing in exchange for CLIENT'S receipt of an immediate cost savings. omissions and for any and all causes including negligence,strict liability,breach of contract,
<br /> Unless the CLIENT can show that ECS'errors or omissions are contained in ECS'reports,CLIENT or breach of warranty, injuries, damages, claims, losses, expenses, or claim expenses
<br /> waives, releases and discharges ECS from and against any other claims for errors,omissions, (including reasonable attorney's fees)relating to professional services provided under this
<br /> damages,injuries,or lass alleged to arise from defective or incomplete work that was monitored agreement to the fullest extent permitted by law.The allocation is as follows.
<br /> or tested by ECS on a part-time or on-call basis. Except as set forth in the preceding sentence, 18.1.1 If the proposed fees are$10,000 or less,ECS'total aggregate liability to CLIENT shall not
<br /> CLIENT agrees to indemnify and hold ECS harmless from all Damages,costs,and attorneys'fees,for exceed$20,000,or the total fee received for the services rendered,whichever is greater.
<br /> any claims alleging errors,omissions,damage,injury or loss allegedly resulting from work that was 18.1.2 If the proposed fees are in excess of$10,000,ECS'total aggregate liability to CLIENT shall not
<br /> monitored or tested by ECS on a part-time or on-call basis. exceed$50,000,or the total fee for the services rendered,whichever is greater.
<br /> 14.0 CERTIFICATIONS-CLIENT may request,or governing jurisdictions may require,ECS to 18.2 CLIENT agrees that ECS shall not be responsible for any injury,loss or damage of any nature,
<br /> provide a"certification"regarding the Services provided by ECS. Any"certification"required of including bodily injury and property damage,arising directly or indirectly,in whole or in part,
<br /> ECS by the CLIENT or jurisdiction(s)having authority over some or all aspects of the Project shall from acts or omissions by the CLIENT,its employees,agents,staff,consultants,contractors,or
<br /> consist of ECS'inferences and professional opinions based on the limited sampling,observations, subcontractors to the extent such injury,damage,or loss is caused by acts or omissions of CLIENT,
<br /> tests,and/or analyses performed by ECS at discrete locations and times. Such"certifications"shall its employees,agents,staff,consultants,contractors,subcontractors or person/entities for whom
<br /> constitute ECS'professional opinion of a condition's existence,but ECS does not guarantee that CLIENT is legally liable.
<br /> such condition exists,nor does it relieve other parties of the responsibilities or obligations such 18.3 CLIENT agrees that ECS'liability for all non-professional liability arising out of this Agreement
<br /> parties have with respect to the possible existence of such a condition. CLIENT agrees it cannot or the services provided as a result of the Proposal be limited to$500,000.
<br /> make the resolution of any dispute with ECS or payment of any amount due to ECS contingent upon 19.0 INDEMNIFICATION
<br /> ECS signing any such"certification." 19.1 Subject to Section 18.0,ECS agrees to hold harmless and indemnify CLIENT from and against
<br /> 15.0 BILLINGS AND PAYMENTS damages arising from ECS'negligent performance of its Services,but only to the extent that such
<br /> 15.1 Billings will be based on the unit rates,plus travel costs,and other reimbursable expenses damages are found to be caused by ECS'negligent acts,errors or omissions,(specifically excluding
<br /> as stated in the professional fees section of the Proposal. Any estimate of professional fees stated any damages caused by any third party or by the CLIENT.)
<br /> shall not be considered as a not-to-exceed or lump um amount unless otherwise explicitly stated. 19.2 To the fullest extent permitted by law,CLIENT agrees to indemnify,and hold ECS harmless
<br /> CLIENT understands and agrees that even if ECS agrees to a lump um or not-to-exceed amount, from and against any and all liability, claims, damages, demands, fines, penalties, costs and
<br /> that amount shall be limited to number of hours,visits,trips,tests,borings,or samples stated in the expenditures (including reasonable attorneys' fees and costs of litigation defense and/or
<br /> Proposal. settlement)("Damages")caused in whole or in part by the acts,errors,or omissions of the CLIENT
<br /> 15.2 CLIENT agrees that all professional fees and other unit rates may be adjusted annually to or CLIENT's employees,agents,staff,contractors,subcontractors,consultants,and clients,provided
<br /> account for inflation based on the most recent 12-month average of the Consumer Price Index such Damages are attributable to:(a)the bodily injury,personal injury,sickness,disease and/or
<br /> (CPI-U)for all items as established by www.bls.gov when the CPI-U exceeds an annual rate of 2.0%. death of any person;(b)the injury to or loss of value to tangible personal property;or(c)a breach
<br /> 15.3 Should ECS identify a Changed Condition(s),ECS shall notify the CLIENT of the Changed of these Terms.The foregoing indemnification shall not apply to the extent such Damage is found
<br /> Condition(s). ECS and CLIENT shall promptly and in good faith negotiate an amendment to the to be caused by the sale negligence,errors,omissions or willful misconduct of ECS.
<br /> scope of Services,professional fees,and time schedule.
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