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DocuSign Envelope ID:254EEE07-4235-430E-AB86-8BA7FDCF270B
<br /> 11.0 OWNERSHIP OF DOCUMENTS 15.2 CLIENT agrees that all professional fees and other unit rates may be adjusted
<br /> 11.1 ECS shall be deemed the author and owner(or licensee)of all documents,technical annually to account for inflation based on the most recent 12-month average of the
<br /> reports, letters, photos, boring logs, field data, field notes, laboratory test data, Consumer Price Index(CPI-U)for all items as established by www.bls.gov when the
<br /> calculations, designs, plans, specifications, reports, or similar documents and CPI-U exceeds an annual rate of 2.0%.
<br /> estimates of any kind furnished by it[the"Documents of Service"]and shall retain all 15.3 Should ECS identify a Changed Condition(s), ECS shall notify the CLIENT of the
<br /> common law,statutory and other reserved rights,including copyrights. CLIENT shall Changed Condition(s). ECS and CLIENT shall promptly and in good faith negotiate
<br /> have a limited, non-exclusive license to use copies of the Documents of Service an amendment to the scope of Services,professional fees,and time schedule.
<br /> provided to it in connection with its Project for which the Documents of Service are 15.4 CLIENT recognizes that time is of the essence with respect to payment of ECS'
<br /> provided until the completion of the Project. invoices,and that timely payment is a material consideration for this Agreement. All
<br /> 11.2 ECS' Services are performed and Documents of Service are provided for the payment shall be in U.S.funds drawn upon U.S.banks and in accordance with the
<br /> CLIENT'S sole use. CLIENT understands and agrees that any use of the Documents rates and charges set forth in the professional Fees. Invoices are due and payable
<br /> of Service by anyone other than the CLIENT and its Contractors is not permitted. upon receipt.
<br /> CLIENT further agrees to indemnify and hold ECS harmless for any errors,omissions 15.5 If CLIENT disputes all or part of an invoice,CLIENT shall provide ECS with written
<br /> or damage resulting from its contractors'use of ECS'Documents of Service. notice stating in detail the facts of the dispute within fifteen(15)calendar days of the
<br /> 11.3 Without ECS'prior written consent,CLIENT agrees to not use ECS'Documents of invoice date. CLIENT agrees to pay the undisputed amount of such invoice promptly.
<br /> Service for the Project if the Project is subsequently modified in scope,structure or 15.6 ECS reserves the right to charge CLIENT an additional charge of one-and-one-half
<br /> purpose. Any reuse without ECS'written consent shall be at CLIENT'S sole risk and (1.5)percent(or the maximum percentage allowed by Law,whichever is lower)of the
<br /> without liability to ECS or its Suboonsultants. CLIENT agrees to indemnify and hold invoiced amount per month for any payment received by ECS more than thirty(30)
<br /> ECS harmless for any errors,omissions or Damage resulting from its use of ECS' calendar days from the date of the invoice, excepting any portion of the invoiced
<br /> Documents of Service after any modification in scope,structure or purpose. amount in dispute. All payments will be applied to accrued interest first and then to
<br /> 11.4 CLIENT agrees to not make any modification to the Documents of Service without the unpaid principal amount. Payment of invoices shall not be subject to unilateral
<br /> the prior written authorization of ECS.To the fullest extent permitted by law,CLIENT discounting or set-offs by CLIENT.
<br /> agrees to indemnify,defend,and hold ECS harmless from any damage,loss,claim, 15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon
<br /> liability or cost(including reasonable attorneys'fees and defense costs)arising out of CLIENT'S ability to obtain financing,zoning,approval of governmental or regulatory
<br /> or in connection with any unauthorized modification of the Documents of Service by agencies,permits,final adjudication of a lawsuit,CLIENT'S successful completion of
<br /> CLIENT or any person or entity that acquires or obtains the Documents of Service the Project,settlement of a real estate transaction,receipt of payment from CLIENT's
<br /> from or through CLIENT. CLIENT represents and warrants that the Documents of client,or any other event unrelated to ECS provision of Services. Retainage shall not
<br /> Service shall be used only as submitted by ECS. be withheld from any payment,nor shall any deduction be made from any invoice on
<br /> 12.0 SAFETY account of penalty, liquidated damages, or other sums incurred by CLIENT. It is
<br /> agreed that all costs and legal fees including actual attorney's fees,and expenses
<br /> 12.1 Unless expressly agreed to in writing in its Proposal,CLIENT agrees that ECS shall incurred by ECS in obtaining payment under this Agreement, in perfecting or
<br /> have no responsibility whatsoever for any aspect of site safety other than for its own obtaining a lien,recovery under a bond,collecting any delinquent amounts due,or
<br /> employees. Nothing herein shall be construed to relieve CLIENT and/or its executing judgments,shall be reimbursed by CLIENT.
<br /> Contractors from their responsibility for site safety. CLIENT also represents and 15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of these
<br /> warrants that the General Contractor is solely responsible for Project site safety and Terms,payment of any invoice by the CLIENT shall mean that the CLIENT is satisfied
<br /> that ECS personnel may rely on the safety measures provided by the General with ECS'Services and is not aware of any defects in those Services.
<br /> Contractor.
<br /> 12.2 In the event ECS assumes in writing limited responsibility for specified safety issues, 16.0 DEFECTS IN SERVICE
<br /> the acceptance of such responsibilities does not and shall not be deemed an 16.1 CLIENT and CLIENT's Contractors shall promptly inform ECS during active work on
<br /> acceptance of responsibility for any other non-specified safety issues,including,but any project of any actual or suspected defects in the Services so to permit ECS to
<br /> not limited to those relating to excavating,fall protection,shoring,drilling,backfilling, take such prompt,effective remedial measures that in ECS'opinion will reduce or
<br /> blasting,or other construction activities. eliminate the consequences of any such defective Services. The correction of defects
<br /> 13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES attributable to ECS'failure to perform in accordance with the Standard of Care shall
<br /> be provided at no cost to CLIENT. However,ECS shall not be responsible for the
<br /> 13.1 CLIENT understands that construction testing and observation services are provided correction of any deficiency attributable to client-furnished information, the errors,
<br /> in an effort to reduce,but cannot eliminate,the risk of problems arising during or after omissions, defective materials, or improper installation of materials by CLIENT's
<br /> construction or remediation. CLIENT agrees that the provision of such Services does personnel,consultants or contractors,or work not observed by ECS.CLIENT shall
<br /> not create a warranty or guarantee of any type. compensate ECS for the costs of correcting such defects.
<br /> 13.2 Monitoring and/or testing services provided by ECS shall not in any way relieve the 16.2 Modifications to reports,documents and plans required as a result of jurisdictional
<br /> CLIENT'S contractor(s)from their responsibilities and obligations for the quality or reviews or CLIENT requests shall not be considered to be defects. CLIENT shall
<br /> completeness of construction as well as their obligation to comply with applicable compensate ECS for the provision of such Services.
<br /> laws,codes,and regulations.
<br /> 13.3 ECS has no responsibility whatsoever for the means, methods, techniques, 17.0 INSURANCE-_ECS represents that it and its subcontractors and subconsultants
<br /> sequencing or procedures of construction selected, for safety precautions and maintain workers compensation insurance,and that ECS is covered by general liability,
<br /> programs incidental to work or services provided by any contractor or other automobile and professional liability insurance policies in coverage amounts it deems
<br /> consultant.ECS does not and shall not have or accept authority to supervise,direct, reasonable and adequate. ECS shall furnish certificates of insurance upon request. The
<br /> control, or stop the work of any of CLIENT'S Contractors or any of their CLIENT is responsible for requesting specific inclusions or limits of coverage that are not
<br /> subcontractors. present in ECS insurance package. The cost of such inclusions or coverage increases,if
<br /> 13.4 ECS strongly recommends that CLIENT retain ECS to provide construction available,will be at the expense of the CLIENT.
<br /> monitoring and testing services on a full time basis to lower the risk of defective or 18.0 LIMITATION OF LIABILITY
<br /> incomplete work being installed by CLIENT'S Contractors. If CLIENT elects to retain 18.1 CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING
<br /> ECS apart-time or on-call basis for any aspect of construction monitoring and/or
<br /> testingg,,CLIENT accepts the risk that a lower level of construction quality may occur ECS' TOTAL LIABILITY TO CLIENT ARISING FROM ECS' PROFESSIONAL LIABILITY, I.E.
<br /> and that defective or incomplete work may result and not be detected by ECS'part PROFESSIONAL ACTS,ERRORS,OR OMISSIONS AND FOR ANY AND ALL CAUSES INCLUDING
<br /> time monitoring and testing in exchange for CLIENT'S receipt of an immediate cost NEGLIGENCE,STRICT LIABILITY,BREACH OF CONTRACT,OR BREACH OF WARRANTY,INJURIES,
<br /> savings. Unless the CLIENT can show that ECS'errors or omissions are contained DAMAGES, CLAIMS, LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING REASONABLE
<br /> in ECS'reports,CLIENT waives,releases and discharges ECS from and against any ATTORNEY'S FEES)RELATING TO PROFESSIONAL SERVICES PROVIDED UNDER THISAGREEMENT
<br /> other claims for errors,omissions,damages,Injuries,or loss alleged to arise from TO THE FULLEST EXTENT PERMITTED BY LAW.THE ALLOCATION IS AS FOLLOWS.
<br /> defective or incomplete work that was monitored or tested by ECS on a part-time or 18.1.1 If the proposed fees are$10,000 or less,ECS'total aggregate liability to CLIENT
<br /> on-call basis. Except as set forth in the preceding sentence, CLIENT agrees to shall not exceed$20,000,or the total fee received for the services rendered,
<br /> indemnify and hold ECS harmless from all Damages,costs,and atoomeys'fees,for whichever is greater.
<br /> any claims alleging errors,omissions,damage,injury or loss allegedly resulting from 18.1.2 If the proposed fees are in excess of$10,000,ECS'total aggregate liability to
<br /> work that was monitored or tested by ECS on a part-time or on-call basis. CLIENT shall not exceed$50,000, or the total fee for the services rendered,
<br /> whichever is greater.
<br /> EC CERTIFICATIONS-CLIENT may request,or governing jurisdictions may require, 18.2 CLIENT agrees that ECS shall not be responsible for any injury,loss or damage of
<br /> ECS to provide a"certification"regarding the Services provided by ECS. Any"certification" an nature,including bodily injury and roe damage,arising direct) or indirect)
<br /> required of ECS by the CLIENT orjurisdiction(s)having authority over some or all aspects of y g y / ry property� g g y y'
<br /> the Project shall consist of ECS'inferences and professional opinions based on the limited in whole or in part,from acts or omissions by the CLIENT, its employees,agents,
<br /> sampling,observations,tests,and/or analyses performed by ECS at discrete locations and staff,consultants,contractors,or subcontractors to the extent such injury,damage,
<br /> times. Such `certifications" shall constitute ECS' professional opinion of a condition's or loss is caused by acts or omissions of CLIENT, its employees, agents, staff,
<br /> existence,but ECS does not guarantee that such condition exists,nor does it relieve other consultants, contractors, subcontractors or person/entities for whom CLIENT is
<br /> parties of the responsibilities or obligations such parties have with respect to the possible legally liable.
<br /> existence of such a condition. CLIENT agrees it cannot make the resolution of any dispute 18.3 CLIENT agrees that ECS'liability for all non-professional liability arising out of this
<br /> with ECS or payment of any amount due to ECS contingent upon ECS signing any such Agreement or the services provided as a result of the Proposal be limited to$500,000.
<br /> "certification."
<br /> 19.0 INDEMNIFICATION
<br /> 15.0 BILLINGS AND PAYMENTS 19.1 Subject to Section 18.0,ECS agrees to hold harmless and indemnify CLIENT from
<br /> 15.1 Billings will be based on the unit rates, plus travel costs, and other reimbursable and against damages arising from ECS'negligent performance of its Services, but
<br /> expenses as stated in the professional fees section of the Proposal. Any estimate of only to the extent that such damages are found to be caused by ECS'negligent acts,
<br /> professional fees stated shall not be considered as a not-to-exceed or lump sum errors or omissions,(specifically excluding any damages caused by any third party or
<br /> amount unless otherwise explicitly stated. CLIENT understands and agrees that even by the CLIENT.)
<br /> if ECS agrees to a lump sum or not-to-exceed amount,that amount shall be limited 19.2 To the fullest extent permitted by law,CLIENT agrees to indemnify,and hold ECS
<br /> to number of hours,visits,trips,tests,borings,or samples stated in the Proposal. harmless from and against any and all liability,claims,damages,demands,fines,
<br /> penalties,costs and expenditures(including reasonable attorneys'fees and costs of
<br /> ECS Proposal No:22345 Page 2 of 3 Ver.06/14/13
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