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<br />ECS Proposal 06:24601 Page 1 of 3 Ver. 06/14/13
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<br />ECS SOUTHEAST, LLC
<br />TERMS AND CONDITIONS OF SERVICE
<br />The professional services (“Services”) to be provided by ECS SOUTHEAST, LLC (“ECS”)
<br />pursuant to the Proposal shall be provided in accordance with these Terms and Conditions
<br />of Service (“Terms”), including any addenda as may be incorporated or referenced in writing
<br />and shall form the Agreement between ECS and CLIENT.
<br />1.0 INDEPENDENT CONSULTANT STATUS - ECS shall serve as an independent
<br />professional consultant to CLIENT for Services on the Project and shall have control over,
<br />and responsibility for, the means and methods for providing the Services identified in the
<br />Proposal, including the retention of Subcontractors and Subconsultants
<br />2.0 SCOPE OF SERVICES - It is understood that the fees, reimbursable expenses and
<br />time schedule defined in the Proposal are based on information provided by CLIENT and/or
<br />CLIENT’S, agents, contractors and consultants (“Contractors”). CLIENT acknowledges that
<br />if this information is not current, is incomplete or inaccurate, if conditions are discovered that
<br />could not be reasonably foreseen, or if CLIENT orders additional services, the scope of
<br />services will change, even while the Services are in progress.
<br />3.0 STANDARD OF CARE
<br />3.1 In fulfilling its obligations and responsibilities enumerated in the Proposal, ECS
<br />shall be expected to comply with and its performance evaluated in light of the
<br />standard of care expected of professionals in the industry performing similar
<br />services on projects of like size and complexity at that time in the region (the
<br />“Standard of Care”). Nothing contained in the Proposal, the agreed-upon scope
<br />of Services, these Terms or any ECS report, opinion, plan or other document
<br />prepared by ECS shall constitute a warranty or guarantee of any nature
<br />whatsoever.
<br />3.2 CLIENT understands and agrees that ECS will rely on the facts learned from data
<br />gathered during performance of Services as well as those facts provided by the
<br />CLIENT and/or CLIENT’S contractors and consultants. CLIENT acknowledges that
<br />such data collection is limited to specific areas that are sampled, bored, tested,
<br />observed and/or evaluated. Consequently, CLIENT waives any and all claims based
<br />upon erroneous facts provided by the CLIENT, facts subsequently learned or
<br />regarding conditions in areas not specifically sampled, bored, tested, observed or
<br />evaluated by ECS.
<br />3.3 If a situation arises that causes ECS to believe compliance with CLIENT’S directives
<br />would be contrary to sound engineering practices, would violate applicable laws,
<br />regulations or codes, or will expose ECS to legal claims or charges, ECS shall so
<br />advise CLIENT. If ECS’ professional judgment is rejected, ECS shall have the right
<br />to terminate its Services in accordance with the provisions of Section 25.0, below.
<br />3.4 If CLIENT decides to disregard ECS’ recommendations with respect to complying
<br />with applicable laws or regulations, ECS shall determine if applicable law requires
<br />ECS to notify the appropriate public officials. CLIENT agrees that such
<br />determinations are ECS’ sole right to make.
<br />4.0 CLIENT DISCLOSURES
<br />4.1 Where the Services requires ECS to penetrate a surface, CLIENT shall furnish and/or
<br />shall direct CLIENT’S or CLIENT’S Contractors to furnish ECS information identifying
<br />the type and location of utility lines and other man-made objects known, suspected,
<br />or assumed to be located beneath or behind the Site's surface. ECS shall be entitled
<br />to rely on such information for completeness and accuracy without further
<br />investigation, analysis, or evaluation.
<br />4.2 “Hazardous Materials” shall include but not be limited to any substance that poses or
<br />may pose a present or potential hazard to human health or the environment whether
<br />contained in a product, material, by-product, waste, or sample, and whether it exists
<br />in a solid, liquid, semi-solid or gaseous form. CLIENT shall notify ECS of any known,
<br />assumed, or suspected regulated, contaminated, or other similar Hazardous
<br />Materials that may exist at the Site prior to ECS mobilizing to the Site.
<br />4.3 If any Hazardous Materials are discovered, or are reasonably suspected by ECS after
<br />its Services begin, ECS shall be entitled to amend the scope of Services and adjust
<br />its fees or fee schedule to reflect any additional work or personal protective equipment
<br />and/or safety precautions required by the existence of such Hazardous Materials.
<br />5.0 INFORMATION PROVIDED BY OTHERS - CLIENT waives, releases and
<br />discharges ECS from and against any claim for damage, injury or loss allegedly arising out
<br />of or in connection with errors, omissions, or inaccuracies in documents and other information
<br />in any form provided to ECS by CLIENT or CLIENT’s Contractors, including such information
<br />that becomes incorporated into ECS documents.
<br />6.0 CONCEALED RISKS - CLIENT acknowledges that special risks are inherent in
<br />sampling, testing and/or evaluating concealed conditions that are hidden from view and/or
<br />neither readably apparent nor easily accessible, e.g., subsurface conditions, conditions
<br />behind a wall, beneath a floor, or above a ceiling. Such circumstances require that certain
<br />assumptions be made regarding existing conditions, which may not be verifiable without
<br />expending additional sums of money or destroying otherwise adequate or serviceable
<br />portions of a building or component thereof. Accordingly, ECS shall not be responsible for the
<br />verification of such conditions unless verification can be made by simple visual observation.
<br />CLIENT agrees to bear any and all costs, losses, damages and expenses (including, but not
<br />limited to, the cost of ECS’ additional services) in any way arising from or in connection with
<br />the existence or discovery of such concealed or unknown conditions.
<br />7.0 RIGHT OF ENTRY/DAMAGE RESULTING FROM SERVICES
<br />7.1 CLIENT warrants that it possesses the authority to grant ECS right of entry to the site
<br />for the performance of Services. CLIENT hereby grants ECS and its agents,
<br />subcontractors and/or subconsultants (“Subconsultants”), the right to enter from time
<br />to time onto the property in order for ECS to perform its Services. CLIENT agrees to
<br />indemnify and hold ECS and its Subconsultants harmless from any claims arising
<br />from allegations that ECS trespassed or lacked authority to access the Site.
<br />7.2 CLIENT warrants that it possesses all necessary permits, licenses and/or utility
<br />clearances for the Services to be provided by ECS except where ECS’ Proposal
<br />explicitly states that ECS will obtain such permits, licenses, and/or utility clearances.
<br />7.3 ECS will take reasonable precautions to limit damage to the Site and its
<br />improvements during the performance of its Services. CLIENT understands that the
<br />use of exploration, boring, sampling, or testing equipment may cause damage to the
<br />Site. The correction and restoration of such common damage is CLIENT’S
<br />responsibility unless specifically included in ECS’ Proposal.
<br />7.4 CLIENT agrees that it will not bring any claims for liability or for injury or loss against
<br />ECS arising from (i) procedures associated with the exploration, sampling or testing
<br />activities at the Site, (ii) discovery of Hazardous Materials or suspected Hazardous
<br />Materials, or (iii) ECS’ findings, conclusions, opinions, recommendations, plans,
<br />and/or specifications related to discovery of contamination.
<br />8.0 UNDERGROUND UTILITIES
<br />8.1 ECS shall exercise the Standard of Care in evaluating client-furnished information as
<br />well as information readily and customarily available from public utility locating
<br />services (the “Underground Utility Information”) in its effort to identify underground
<br />utilities. The extent of such evaluations shall be at ECS’ sole discretion.
<br />8.2 CLIENT recognizes that the Underground Utility Information provided to or obtained
<br />by ECS may contain errors or be incomplete. CLIENT understands that ECS may be
<br />unable to identify the locations of all subsurface utility lines and man-made features.
<br />8.3 CLIENT waives, releases, and discharges ECS from and against any claim for
<br />damage, injury or loss allegedly arising from or related to subterranean structures
<br />(pipes, tanks, cables, or other utilities, etc.) which are not called to ECS’ attention in
<br />writing by CLIENT, not correctly shown on the Underground Utility Information and/or
<br />not properly marked or located by the utility owners, governmental or quasi-
<br />governmental locators, or private utility locating services as a result of ECS’ or ECS’
<br />Subconsultant’s request for utility marking services made in accordance with local
<br />industry standards.
<br />9.0 SAMPLES
<br />9.1 Soil, rock, water, building materials and/or other samples and sampling by-products
<br />obtained from the Site are and remain the property of CLIENT. Unless other
<br />arrangements are requested by CLIENT and mutually agreed upon by ECS in writing,
<br />ECS will retain samples not consumed in laboratory testing for up to sixty (60)
<br />calendar days after the first issuance of any document containing data obtained from
<br />such samples. Samples consumed by laboratory testing procedures will not be
<br />stored.
<br />9.2 Unless CLIENT directs otherwise, and excluding those issues covered in Section
<br />10.0, CLIENT authorizes ECS to dispose of CLIENT’S non-hazardous samples and
<br />sampling or testing by-products in accordance with applicable laws and regulations.
<br />10.0 ENVIRONMENTAL RISKS
<br />10.1 When Hazardous Materials are known, assumed, suspected to exist, or discovered
<br />at the Site, ECS will endeavor to protect its employees and address public health,
<br />safety, and environmental issues in accordance with the Standard of Care. CLIENT
<br />agrees to compensate ECS for such efforts.
<br />10.2 When Hazardous Materials are known, assumed, or suspected to exist, or discovered
<br />at the Site, ECS and/or ECS’ subcontractors will exercise the Standard of Care in
<br />containerizing and labeling such Hazardous Materials in accordance with applicable
<br />laws and regulations, and will leave the containers on Site. CLIENT is responsible
<br />for the retrieval, removal, transport and disposal of such contaminated samples, and
<br />sampling process byproducts in accordance with applicable law and regulation.
<br />10.3 Unless explicitly stated in the Scope of Services, ECS will neither subcontract for nor
<br />arrange for the transport, disposal, or treatment of Hazardous Materials. At CLIENT’S
<br />written request, ECS may assist CLIENT in identifying appropriate alternatives for
<br />transport, off-site treatment, storage, or disposal of such substances, but CLIENT
<br />shall be solely responsible for the final selection of methods and firms to provide such
<br />services. CLIENT shall sign all manifests for the disposal of substances affected by
<br />contaminants and shall otherwise exercise prudence in arranging for lawful disposal.
<br />10.4 In those instances where ECS is expressly retained by CLIENT to assist CLIENT in
<br />the disposal of Hazardous Materials, samples, or wastes as part of the Proposal, ECS
<br />shall do so only as CLIENT’S agent (notwithstanding any other provision of this
<br />Agreement to the contrary). ECS will not assume the role of, nor be considered a
<br />generator, storer, transporter, or disposer of Hazardous Materials.
<br />10.5 Subsurface sampling may result in unavoidable cross-contamination of certain
<br />subsurface areas, as when a probe or excavation/boring device moves through a
<br />contaminated zone and links it to an aquifer, underground stream, pervious soil
<br />stratum, or other hydrous body not previously contaminated, or connects an
<br />uncontaminated zone with a contaminated zone. Because sampling is an essential
<br />element of the Services indicated herein, CLIENT agrees this risk cannot be
<br />eliminated. Provided such services were performed in accordance with the Standard
<br />of Care, CLIENT waives, releases and discharges ECS from and against any claim
<br />for damage, injury, or loss allegedly arising from or related to such cross-
<br />contamination.
<br />10.6 CLIENT understands that a Phase I Environmental Site Assessment (ESA) is
<br />conducted solely to permit ECS to render a professional opinion about the likelihood
<br />of the site having a Recognized Environmental Condition on, in, beneath, or near the
<br />Site at the time the Services are conducted. No matter how thorough a Phase I ESA
<br />study may be, findings derived from its conduct are highly limited and ECS cannot
<br />know or state for an absolute fact that the Site is unaffected or adversely affected by
<br />one or more Recognized Environmental Conditions. CLIENT represents and
<br />warrants that it understands the limitations associated with Phase I ESAs.
<br />Docusign Envelope ID: 6A9D5D34-5CDF-4B61-99A9-F61CBCEDBF5E
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