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<br />ECS Proposal 06:24601 Page 2 of 3 Ver. 06/14/13
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<br />11.0 OWNERSHIP OF DOCUMENTS
<br />11.1 ECS shall be deemed the author and owner (or licensee) of all documents, technical
<br />reports, letters, photos, boring logs, field data, field notes, laboratory test data,
<br />calculations, designs, plans, specifications, reports, or similar documents and
<br />estimates of any kind furnished by it [the “Documents of Service”] and shall retain all
<br />common law, statutory and other reserved rights, including copyrights. CLIENT shall
<br />have a limited, non-exclusive license to use copies of the Documents of Service
<br />provided to it in connection with its Project for which the Documents of Service are
<br />provided until the completion of the Project.
<br />11.2 ECS’ Services are performed and Documents of Service are provided for the
<br />CLIENT’S sole use. CLIENT understands and agrees that any use of the Documents
<br />of Service by anyone other than the CLIENT and its Contractors is not permitted.
<br />CLIENT further agrees to indemnify and hold ECS harmless for any errors, omissions
<br />or damage resulting from its contractors’ use of ECS’ Documents of Service.
<br />11.3 Without ECS’ prior written consent, CLIENT agrees to not use ECS’ Documents of
<br />Service for the Project if the Project is subsequently modified in scope, structure or
<br />purpose. Any reuse without ECS’ written consent shall be at CLIENT’S sole risk and
<br />without liability to ECS or its Subconsultants. CLIENT agrees to indemnify and hold
<br />ECS harmless for any errors, omissions or Damage resulting from its use of ECS’
<br />Documents of Service after any modification in scope, structure or purpose.
<br />11.4 CLIENT agrees to not make any modification to the Documents of Service without
<br />the prior written authorization of ECS. To the fullest extent permitted by law, CLIENT
<br />agrees to indemnify, defend, and hold ECS harmless from any damage, loss, claim,
<br />liability or cost (including reasonable attorneys’ fees and defense costs) arising out of
<br />or in connection with any unauthorized modification of the Documents of Service by
<br />CLIENT or any person or entity that acquires or obtains the Documents of Service
<br />from or through CLIENT. CLIENT represents and warrants that the Documents of
<br />Service shall be used only as submitted by ECS.
<br />12.0 SAFETY
<br />12.1 Unless expressly agreed to in writing in its Proposal, CLIENT agrees that ECS shall
<br />have no responsibility whatsoever for any aspect of site safety other than for its own
<br />employees. Nothing herein shall be construed to relieve CLIENT and/or its
<br />Contractors from their responsibility for site safety. CLIENT also represents and
<br />warrants that the General Contractor is solely responsible for Project site safety and
<br />that ECS personnel may rely on the safety measures provided by the General
<br />Contractor.
<br />12.2 In the event ECS assumes in writing limited responsibility for specified safety issues,
<br />the acceptance of such responsibilities does not and shall not be deemed an
<br />acceptance of responsibility for any other non-specified safety issues, including, but
<br />not limited to those relating to excavating, fall protection, shoring, drilling, backfilling,
<br />blasting, or other construction activities.
<br />13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES
<br />13.1 CLIENT understands that construction testing and observation services are provided
<br />in an effort to reduce, but cannot eliminate, the risk of problems arising during or after
<br />construction or remediation. CLIENT agrees that the provision of such Services does
<br />not create a warranty or guarantee of any type.
<br />13.2 Monitoring and/or testing services provided by ECS shall not in any way relieve the
<br />CLIENT’S contractor(s) from their responsibilities and obligations for the quality or
<br />completeness of construction as well as their obligation to comply with applicable
<br />laws, codes, and regulations.
<br />13.3 ECS has no responsibility whatsoever for the means, methods, techniques,
<br />sequencing or procedures of construction selected, for safety precautions and
<br />programs incidental to work or services provided by any contractor or other
<br />consultant. ECS does not and shall not have or accept authority to supervise, direct,
<br />control, or stop the work of any of CLIENT’S Contractors or any of their
<br />subcontractors.
<br />13.4 ECS strongly recommends that CLIENT retain ECS to provide construction
<br />monitoring and testing services on a full time basis to lower the risk of defective or
<br />incomplete work being installed by CLIENT’S Contractors. If CLIENT elects to retain
<br />ECS on a part-time or on-call basis for any aspect of construction monitoring and/or
<br />testing, CLIENT accepts the risk that a lower level of construction quality may occur
<br />and that defective or incomplete work may result and not be detected by ECS’ part
<br />time monitoring and testing in exchange for CLIENT’S receipt of an immediate cost
<br />savings. Unless the CLIENT can show that ECS’ errors or omissions are contained
<br />in ECS’ reports, CLIENT waives, releases and discharges ECS from and against any
<br />other claims for errors, omissions, damages, injuries, or loss alleged to arise from
<br />defective or incomplete work that was monitored or tested by ECS on a part-time or
<br />on-call basis. Except as set forth in the preceding sentence, CLIENT agrees to
<br />indemnify and hold ECS harmless from all Damages, costs, and attorneys’ fees, for
<br />any claims alleging errors, omissions, damage, injury or loss allegedly resulting from
<br />work that was monitored or tested by ECS on a part-time or on-call basis.
<br />14.0 CERTIFICATIONS - CLIENT may request, or governing jurisdictions may require,
<br />ECS to provide a “certification” regarding the Services provided by ECS. Any
<br />“certification” required of ECS by the CLIENT or jurisdiction(s) having authority over
<br />some or all aspects of the Project shall consist of ECS’ inferences and professional
<br />opinions based on the limited sampling, observations, tests, and/or analyses
<br />performed by ECS at discrete locations and times. Such “certifications” shall
<br />constitute ECS’ professional opinion of a condition's existence, but ECS does not
<br />guarantee that such condition exists, nor does it relieve other parties of the
<br />responsibilities or obligations such parties have with respect to the possible existence
<br />of such a condition. CLIENT agrees it cannot make the resolution of any dispute with
<br />ECS or payment of any amount due to ECS contingent upon ECS signing any such
<br />“certification.”
<br />15.0 BILLINGS AND PAYMENTS
<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 of
<br />professional fees stated shall not be considered as a not-to-exceed or lump sum
<br />amount unless otherwise explicitly stated. CLIENT understands and agrees that even
<br />if ECS agrees to a lump sum or not-to-exceed amount, that amount shall be limited
<br />to number of hours, visits, trips, tests, borings, or samples stated in the Proposal.
<br />15.2 CLIENT agrees that all professional fees and other unit rates may be adjusted
<br />annually to account for inflation based on the most recent 12-month average of the
<br />Consumer Price Index (CPI-U) for all items as established by www.bls.gov when the
<br />CPI-U exceeds an annual rate of 2.0%.
<br />15.3 Should ECS identify a Changed Condition(s), ECS shall notify the CLIENT of the
<br />Changed Condition(s). ECS and CLIENT shall promptly and in good faith negotiate
<br />an amendment to the scope of Services, professional fees, and time schedule.
<br />15.4 CLIENT recognizes that time is of the essence with respect to payment of ECS’
<br />invoices, and that timely payment is a material consideration for this Agreement. All
<br />payment shall be in U.S. funds drawn upon U.S. banks and in accordance with the
<br />rates and charges set forth in the professional Fees. Invoices are due and payable
<br />upon receipt.
<br />15.5 If CLIENT disputes all or part of an invoice, CLIENT shall provide ECS with written
<br />notice stating in detail the facts of the dispute within fifteen (15) calendar days of the
<br />invoice date. CLIENT agrees to pay the undisputed amount of such invoice promptly.
<br />15.6 ECS reserves the right to charge CLIENT an additional charge of one-and-one-half
<br />(1.5) percent (or the maximum percentage allowed by Law, whichever is lower) of the
<br />invoiced amount per month for any payment received by ECS more than thirty (30)
<br />calendar days from the date of the invoice, excepting any portion of the invoiced
<br />amount in dispute. All payments will be applied to accrued interest first and then to
<br />the unpaid principal amount. Payment of invoices shall not be subject to unilateral
<br />discounting or set-offs by CLIENT.
<br />15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon
<br />CLIENT’S ability to obtain financing, zoning, approval of governmental or regulatory
<br />agencies, permits, final adjudication of a lawsuit, CLIENT’S successful completion of
<br />the Project, settlement of a real estate transaction, receipt of payment from CLIENT’s
<br />client, or any other event unrelated to ECS provision of Services. Retainage shall not
<br />be withheld from any payment, nor shall any deduction be made from any invoice on
<br />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 />incurred by ECS in obtaining payment under this Agreement, in perfecting or
<br />obtaining a lien, recovery under a bond, collecting any delinquent amounts due, or
<br />executing judgments, shall be reimbursed by CLIENT.
<br />15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of these
<br />Terms, payment of any invoice by the CLIENT shall mean that the CLIENT is satisfied
<br />with ECS’ Services and is not aware of any defects in those Services.
<br />16.0 DEFECTS IN SERVICE
<br />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 />take such prompt, effective remedial measures that in ECS’ opinion will reduce or
<br />eliminate the consequences of any such defective Services. The correction of defects
<br />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 />correction of any deficiency attributable to client-furnished information, the errors,
<br />omissions, defective materials, or improper installation of materials by CLIENT’s
<br />personnel, consultants or contractors, or work not observed by ECS. CLIENT shall
<br />compensate ECS for the costs of correcting such defects.
<br />16.2 Modifications to reports, documents and plans required as a result of jurisdictional
<br />reviews or CLIENT requests shall not be considered to be defects. CLIENT shall
<br />compensate ECS for the provision of such Services.
<br />17.0 INSURANCE - ECS represents that it and its subcontractors and subconsultants
<br />maintain workers compensation insurance, and that ECS is covered by general
<br />liability, automobile and professional liability insurance policies in coverage amounts
<br />it deems reasonable and adequate. ECS shall furnish certificates of insurance upon
<br />request. The CLIENT is responsible for requesting specific inclusions or limits of
<br />coverage that are not present in ECS insurance package. The cost of such
<br />inclusions or coverage increases, if available, will be at the expense of the CLIENT.
<br />18.0 LIMITATION OF LIABILITY
<br />18.1 CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING
<br />ECS’ TOTAL LIABILITY TO CLIENT ARISING FROM ECS’ PROFESSIONAL LIABILITY, I.E.
<br />PROFESSIONAL ACTS, ERRORS, OR OMISSIONS AND FOR ANY AND ALL CAUSES INCLUDING
<br />NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY, INJURIES,
<br />DAMAGES, CLAIMS, LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING REASONABLE
<br />ATTORNEY’S FEES) RELATING TO PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT
<br />TO THE FULLEST EXTENT PERMITTED BY LAW. THE ALLOCATION IS AS FOLLOWS.
<br />18.1.1 If the proposed fees are $10,000 or less, ECS’ total aggregate liability to CLIENT
<br />shall not exceed $20,000, or the total fee received for the services rendered,
<br />whichever is greater.
<br />18.1.2 If the proposed fees are in excess of $10,000, ECS’ total aggregate liability to
<br />CLIENT shall not exceed $50,000, or the total fee for the services rendered,
<br />whichever is greater.
<br />18.2 CLIENT agrees that ECS shall not be responsible for any injury, loss or damage of
<br />any nature, including bodily injury and property damage, arising directly or indirectly,
<br />in whole or in part, from acts or omissions by the CLIENT, its employees, agents,
<br />staff, consultants, contractors, or subcontractors to the extent such injury, damage,
<br />or loss is caused by acts or omissions of CLIENT, its employees, agents, staff,
<br />consultants, contractors, subcontractors or person/entities for whom CLIENT is
<br />legally liable.
<br />18.3 CLIENT agrees that ECS’ liability for all non-professional liability arising out of this
<br />Agreement or the services provided as a result of the Proposal be limited to $500,000.
<br />19.0 INDEMNIFICATION
<br />19.1 Subject to Section 18.0, ECS agrees to hold harmless and indemnify CLIENT from
<br />and against damages arising from ECS’ negligent performance of its Services, but
<br />only to the extent that such damages are found to be caused by ECS’ negligent acts,
<br />errors or omissions, (specifically excluding any damages caused by any third party or
<br />by the CLIENT.)
<br />Docusign Envelope ID: 6A9D5D34-5CDF-4B61-99A9-F61CBCEDBF5E
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