HomeMy WebLinkAbout2013-263 AMS - ECS Carolinas, LLP -Facilities Assessment, Due Diligence & Space Needs Analysis Consulting Services $18,500 ad1,5- .?G..7
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[Departmental Use Only]
TITLE Space Study Analysis
FY 2013-14
NORTH CAROLINA
SERVICES AGREEMENT UNDER$90,000.00
ORANGE COUNTY
This Services Agreement (herinafter "Agreement"), made and entered into this •
15th day of
July, 2013, ("Effective Date") by and between Orange County, North Carolina a body politic
and corporate of the State of North Carolina(hereinafter, the "County") and ECS Carolinas, LLP,
(hereinafter, the "Provider").
WITNESSETH:
That the County and Provider, for the consideration herein named, do hereby agree as
follows:
1. Services
a. Scope of Work.
i) This Agreement is for services to be rendered by Provider to County with respect
to (insert type of project): Facilities due diligence, assessment, and space planning
analysis as described in the attached proposal entitled "Facilities Consulting
Services for Orange County" dated June 28th, 2013.
ii) By executing this Agreement, the Provider represents and agrees that Provider is
qualified to perform and fully capable of performing and providing the services
required or necessary under this Agreement in a fully competent, professional and
timely manner.
iii) Time is of the essence with respect to this Agreement.
iv) The services to be performed under this Agreement consist of Basic Services, as
described and designated in Section 3 hereof. Compensation to the Provider for
Basic Services under this Agreement shall be as set forth herein.
2. Responsibilities of the Provider
a. Services to be provided. The Provider shall provide the County with all services
required in Section 3 to satisfactorily complete the Project within the time limitations set
forth herein and in accordance with the highest professional standards.
b. Standard of Care.
i) The Provider shall exercise reasonable care and diligence in performing services
under this Agreement in accordance with the highest generally accepted standards
of this type of Provider practice throughout the United States and in accordance
with applicable federal, state and local laws and regulations applicable to the
performance of these services. Provider is solely responsible for the professional
Revised July 2010
1
quality, accuracy and timely completion and/or submission of all work related to
the Basic Services.
ii) Provider shall be responsible for all errors or omissions, in the performance of the
Agreement. Provider shall correct any and all errors, omissions, discrepancies,
ambiguities, mistakes or conflicts at no additional cost to the County.
iii) The Provider shall not; except as otherwise provided for in this Agreement,
subcontract the performance of any work under this Agreement without prior
written permission of the County. No permission for subcontracting shall create,
between the County and the subcontractor, any contract or any other relationship.
iv) Provider is an independent contractor of County. Any and all employees of the
Provider engaged by the Provider in the performance of any work or services
required of the Provider under this Agreement, shall be considered employees or
agents of the Provider only and not of the County, and any and all claims that may
or might arise under any workers compensation or other law or contract on behalf
of said employees while so engaged shall be the sole obligation and responsibility
of the Provider.
v) Provider agrees that Provider, its employees, agents and its subcontractors, if any,
shall be required to comply with all federal, state and local antidiscrimination
laws, regulations and policies that relate to the performance of Provider's services
under this Agreement.
vi) If activities related to the performance of this Agreement require specific licenses,
certifications, or related credentials Provider represents that it and/or its
employees, agents and subcontractors engaged in such activities possess such
licenses, certifications, or credentials and that such licenses certifications, or
credentials are current, active, and not in a state of suspension or revocation.
3. Basic Services
a. Basic Services. The Services to be rendered pursuant to this Agreement are as follows
(fully describe services to be provided): Facilities due diligence, assessment, and space
planning analysis as described in the attached proposal entitled "Facilities Consulting.
Services for Orange County" dated June 28th, 2013.
4. Duration of Services
a. Term. The term of this Agreement shall be from July 15, 2013 to November 30, 2013.
b. Scheduling of Services.
i) The Provider shall schedule and perform his activities in a timely manner.
ii) Should the County determine that the Provider is behind schedule, it may require
the Provider to expedite and accelerate his efforts, including providing additional
resources and working overtime, as necessary, to perform his services in
accordance with the approved project schedule at no additional cost to the
County.
Revised July 2010
2
iii) The Commencement Date for the Provider's Basic Services shall be July 15tH,
2013..
5. Compensation
a. Compensation for Basic Services. Compensation for Basic Services shall include all
compensation due the Provider from the County for all services under this Agreement
except for any authorized Reimbursable Expenses which are defined herein. The
maximum amount payable for Basic Services shall not exceed Eighteen Thousand Five
Hundred Dollars ($18,500). Payment for Basic Services shall become due and payable
within thirty (30) days of Provider properly invoicing County. Payment shall be subject
to provisions of Section 5(b).
b. Disputes. In the event the amount stated on an invoice is disputed by the County, the
County may withhold payment of all or a portion of the amount stated on an invoice
until the parties resolve the dispute. Should Provider fail to perform its duties under the
terms of this Agreement, County may, without fault or penalty, withhold any payment
associated with the work to be performed until such time as said work is completed.
c. Additional Services. County shall not be responsible for costs related to any services in
addition to the Basic Services performed by Provider unless County requests such
additional services in writing and such additional services are evidenced by a written
amendment to this Agreement.
6. Responsibilities of the County
a. Cooperation and Coordination. The County has designated (Jeff Thompson) to act as
the County's representative with respect to the Project and shall have the authority to
render decisions within guidelines established by the County Manager and/or the County
Board of Commissioners and shall be available during working hours as often as may be
reasonably required to render decisions and to furnish information.
7. Insurance
a. General Requirements. The Provider shall purchase and maintain and shall cause each
of his subcontractors to purchase and maintain, during the period of performance of this
Agreement:
i) Worker's Compensation Insurance for protection from claims under workers' or
workmen's compensation acts;
ii) Comprehensive General Liability Insurance covering claims arising out of or
relating to bodily injury, including bodily injury, sickness, disease or death of any
of the Provider's employees or any other person and to real and personal property
including loss of use resulting thereof;
iii) Comprehensive Automobile Liability Insurance, including hired and non-owned
vehicles, if any, covering personal injury or death, and property damage; and
Revised July 2010
3
iv) Professional Liability Insurance, covering personal injury, bodily injury and
property damage and claims arising out of or related to the performance under this
Agreement by the Provider or his agents, Providers and employees.
b. Insurance Ratin;. The minimum insurance rating for any company insuring the Provider
shall be Best's A. If to Provida dues gut meet the ink req +tmes>tts,able Catvdvs
Risk Maa w mut be tonslAWd parr to fiWi2:hV tM3,A ,rat.
c. Limits of Coverage. Minimum limits of insurance coverage shall be as follows:
INSURANCE DESCRIPTION MINIMUM REQUIRED COVERAGE
• Worker's Compensation Limits for Coverage A - Statutory State of N.C.
Coverage B - Employers Liability
$500,000 each accident and policy limit and disease each
employee
• Commercial General Liability $1,000,000 Each Occurrence; $2,000,000 Aggregate.
• Automobile Liability Combined Single Limit$500,000
• Professional Liability Nom: Igm't Coverage Hinitss requked by NA,,HNOW if
appHcaW.
$1,000,000 each occurrence, 1,000,000 aggregate
d. Additional Insured. All insurance policies (with the exception of Worker's_
Compensation and Professional Liability) required under this Agreement shall name the
County as an additional insured party. Evidence of such insurance shall be furnished to
the County, together with evidence that each policy provides the County with not less
than thirty (30) days prior written notice of any cancellation, non-renewal or reduction
of coverage.
8. Indemnity
a. Indemnity. The Provider agrees to defend, indemnify and hold harmless the County
from all loss, liability, claims or expense, including attorney's fees, arising out of or
related to the Project and arising from bodily injury including death or property damage
to any person or persons caused in whole or in part by the negligence or misconduct of
the Provider except to the extent same are caused by the negligence or willful
misconduct of the County. It is the intent of this provision to require the Provider to
indemnify the County to the fullest extent permitted under North Carolina law.
9. Amendments to the Agreement
a. Changes in Basic Services. Changes in the Basic Services and entitlement to additional
compensation or a change in duration of this Agreement shall be made by a written
Amendment to this Agreement executed by the County and the Provider. The Provider
shall proceed to perform the Services required by the Amendment only after receiving a
fully executed Amendment from the County.
Revised July 2010
4
10. Termination
a. Termination for Convenience of the County. This Agreement may be terminated without
cause by the County and for its convenience upon seven (7) days' prior written notice to
the Provider.
b. Other Termination. The Provider may terminate this Agreement based upon the County's
material breach of this Agreement; provided, the County has not taken all reasonable
actions to remedy the breach. The Provider shall give the County seven (7) days' prior
written notice of its intent to terminate this Agreement for cause.
c. Compensation After Termination.
i) In the event of termination, the Provider shall be paid that portion of the fees and
expenses that it has earned to the date of termination, less any costs or expenses
incurred or anticipated to be incurred by the County due to errors or omissions of
the Provider.
ii) Should this Agreement be terminated, the Provider shall deliver to the County
within seven (7) days, at no additional cost, all deliverables including any
electronic data or files relating to the Project.
d. Waiver. The payment of any sums by the County under this Agreement or the failure of
the County to require compliance by the Provider with any provisions of this Agreement
or the waiver by the County of any breach of this Agreement shall not constitute a
waiver of any claim for damages by the County for any breach of this Agreement or a
waiver of any other required compliance with this Agreement.
11. Additional Provisions
a. Limitation and Assignment. The County and the Provider each bind themselves, their
successors, assigns and legal representatives to the terms of this Agreement. Neither the
County nor the Provider shall assign or transfer its interest in this Agreement without the
written consent of the other.
b. Governing. This Agreement and the duties, responsibilities, obligations and rights
of respective parties hereunder shall be governed by the laws of the State of North
Carolina.
c. Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages
with respect to any provision of, or the performance or non-performance of, this
Agreement shall be brought in the General Court of Justice of North Carolina sitting in
Orange County, North Carolina. It is agreed by the parties that no other court shall have
jurisdiction or venue with respect to such suits or actions. The Parties may agree to
nonbinding mediation of any dispute prior to the bringing of such suit or action.
d. Entire Agreement. This Agreement represents the entire and integrated agreement
between the County and the Provider and supersedes all prior negotiations,
Revised July 2010
5
representations or agreements, either written or oral. This Agreement may be amended
only by written instrument signed by both parties. Modifications may be evidenced by
facsimile signatures.
e. Severability. If any provision of this Agreement is held as a matter of law to be
unenforceable, the remainder of this Agreement shall be valid and binding upon the
Parties.
f. Ownership of Work Product. Should Provider's performance of this Agreement generate
documents, items or things that are specific to this Project such documents, items or
things shall become the property of the County and may be used on any other project
without additional compensation to the Provider. The use of the documents, items or
things by the County or by any person or entity for any purpose other than the Project as
set forth in this Agreement shall be at the full risk of the County.
g. Non-Appropriation. Provider acknowledges that County is a governmental entity, and
the validity of this Agreement is based upon the availability of public funding under the
authority of its statutory mandate.
In the event that public funds are unavailable and not appropriated for the performance of
County's obligations under this Agreement, then this Agreement shall automatically
expire without penalty to County immediately upon written notice to Provider of the
unavailability and non-appropriation of public funds. It is expressly agreed that County
shall not activate this non-appropriation provision for its convenience or to circumvent
the requirements of this Agreement, but only as an emergency fiscal measure during a
substantial fiscal crisis.
In the event of a change in the County's statutory authority, mandate and/or mandated
functions, by state and/or federal legislative or regulatory action, which adversely affects
County's authority to continue its obligations under this Agreement, then this Agreement
shall automatically terminate without penalty to County upon written notice to Provider
of such limitation or change in County's legal authority.
h. Notices. Any notice required by this Agreement shall be in writing and delivered by
certified or registered mail, return receipt requested to the following:
Orange County Provider's Name
Attention: Jeff Thompson ECS Carolinas, LLP
P.O. Box 8181 9001 Glenwood Avenue
Hillsborough,NC 27278 Raleigh,NC 27617
IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have
hereunder set their hands and seal, all as of the day and year first above written.
ORANGE COUNTY- PROVI R:
By: By
Frank d4hon, ounty Manager
Revised July 2010
6
Printed Name and Title
This instrument has been approved as to technical content.
Jeffry Thompson, Department Director
This instrument has been pre-audited in the manner required by the Local Government Budget
and Fiscal Control Act.
N,t� A - /L.--
Office of the Finance Director
This instrumen een approved as to form and legal sufficiency.
Offce of the County Attorney
Revised July 2010
7
ECS CAROLINAS, LL. 'Setting the Standard for Service'
Geotechnical . Construction Materials k Environmental- Facilities NC Enq; - r l,, .1z,.
June 28, 2013
Mr. Jeff E.Thompson
Asset Management Services Director
Orange County Asset Management and Purchasing
131 Margaret Lane
P.O. Box 8181
Hillsborough, North Carolina 27278
RE: Facilities Conulting Services for Orange County
Orange County, North Carolina
ECS Proposal Number 06:16742
Dear Mr. Thompson:
ECS Carolinas, LLP (ECS) is pleased to provide Orange County with this proposal for
performing Facilities Consulting Services for Orange County controlled facilites. ECS' proposal
contains a summary of relevant information as ECS understands it, a project schedule and the ✓
estimated costs for completion of the proposed work. 7?
PROJECT UNDERSTANDING
ECS understands Orange County is looking to combine their current internal data (Space Plan,
O&M data, architectural floor plans and staffing guidelines) into a single cost analysis for use in
future facilities planning. The following proposed scope of work is intended to assist Orange
County in adding the following variables into their space plan: age, physical status, operating
costs, and the energy efficiency of the facilities. ECS will utilize the following scope to assist
Orange County in producing a strategic, data based, outline to determine the "true cost" of
current facilities so more information can be utilized when making space planning decisions.
SCOPE OF SERVICES
Phase 1 — Understanding
Activity 1.1
The first step in the process is documentation review. The documentation we will request
includes, if available, the following:
• The previous documentation that related to the comprehensive space study conducted
by OCNC in 2000 and subsequent major updates in 2002, 2004, 2005, 2006 and
2010.
• Organizational charts for departments and ECS will attempt to determine general
space requirements.
• Current inventory of all facilities describing building type, location, square footage,
acreage, dates of major renovation, any special amenities, and occupancy vs. capacity
9001 Glenwood Avenue, Raleigh,NC • 27617-7505 • T 919-861-9910 • F:919-861-9911 • vtvv,ecsl1mited.com
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• Copies of building leases
• Asset depreciation tables
• Master real estate plan
• Deferred maintenance and capital expenditure tables
• Operational cost budgets
• A copy of your space allocation standards
• Floor plans for all facilities
Purpose
Reviewing this information will give us the required baseline we will need to work from to
familiarize ourselves with OCNC's facilities.
Activity 1.2
For this activity we will tour your facilities.
Purpose
The purpose of this activity is to observe the reality of your organization's facilities. We will
gain an understanding of the look and feel of your buildings, how they support or don't
support the work of your employees and their purpose and function. We will also look at
how the space is utilized. It will also give us a basis of understanding of existing conditions
that will help us in the activities that follow.
Activity 1.3
ECS we will provide questionnaires to organizational department heads, key FM
personnel, and senior management to create a general understanding of department.
Isolated follow up interviews may be conducted depending on the results of the surveys
and Activity 1.2.
Purpose
To gain an understanding of:
• The overall strategy of the organization
• What their department's business goals and initiatives are.
• The business culture and operations.
• What the user experience is and should be of the various constituencies (employees,
visitors, vendors, potential employees, client's families).
• How services are being delivered today.
• How existing facilities support or hinder service delivery.
• How increasing technical aspects of how they provide services may change service
delivery.
• What impediments are inherent in the existing space that restricts efficiency and
effectiveness?
• What the generational demographics of the future workforce.
• What challenges you face in managing your facilities.
• What the facility experience is of your employees, your visitors and your client's families
and what it is desired to be.
• Growth plans for personnel or space within departments.
And to:
• Assess their operational needs.
• Determine how facilities can support the organization's and departmental business
initiatives
Understanding this information will allow us to identify the gaps that exist between current
conditions and future needs.
Phase 2—Analysis
Activity 2.1
The completion of the Understanding phase will give us an outline of your business'
situation and your facilities. In phase 2 we will take the information that we collected and
analyze it.
Purpose
This analysis will ultimately become the foundation for producing the "total cost"
determination procedure. Interviews and first hand observations are key to determining
an objective metric for functional obsolesce of a facility. Using tools such as SWOT
(Strengths, Weaknesses, Opportunities, and Threats) analysis, scenario planning and
benchmarking will help us close the gaps that we uncovered in the Understanding phase.
Once we have completed this effort, we can then outline a process for determining the
cost of facilities at an employee level.
Output
An interim format so a comprehensive chart of the state of your facilities including a
statement of requirements, gap analysis, and remaining useful life estimated in general
accordance with ASTM E-2018-01 can be generated by Orange County Staff.
Phase 3— Financial Analysis
Activity 3.1
Based upon the current documentation ECS will provide an outline or flow chart to allow
Orange County to determine the relative efficiency of their current facility structure as it
pertains to cost per square foot or cost per employee.
Output
The result of this phase is a report with our outline on how to determine costs by utilizing a
flow chart that is repeatable by Orange County staff with new or future data
FEES/COST OF SERVICES
Not to Exceed Budget based on the rate schedule, below .........................$18,500.00
Senior Principal Engineer/Consultant..................................................$150.00/hour
Principal Engineer................................................................................$125.00/hour
Senior Professional Engineer..............................................................$115.00/hour
Project Engineer/Manager...................................................................$85.00/hour
SCHEDULE OF WORK
ECS will schedule the field work within one week of acceptance of this proposal. ECS will be
granted unrestricted access to the property. If there is significant standby time or a return trip is
required to complete field work due to access limitations, there will be additional charges. The
final report will be provided approximately one week after the field work is completed. In order
to maintain this schedule, it is critical that we receive your written authorization, special
instructions and distribution list in a timely manner.
AUTHORIZATION
If the above scope of work is acceptable to you, please sign the Proposal Acceptance Form and
return one copy of the proposal acceptance form to us. Please note that the attached Terms
and Conditions of Service are incorporated herein by reference and are an integral part of this
agreement between us. Alternatively, you could issue a letter of acceptance or purchase order;
but we would ask that you reference and include our proposal by reference showing proposal
number and date.
Using the Proposal Acceptance Form will provide formal authorization for us to perform the
above work, enter the site, and provide proper invoicing instructions and distribution lists for
reports and correspondence. Please provide any specific instructions or details not covered in
this proposal on the attached Proposal Acceptance Form. Please note that we have provided a
place to provide invoicing instructions and report distribution. In today's times with improved
technology, and to provide you with the fastest response, we normally provide the reports by e-
mail. If this is acceptable, then list those to whom the reports should be sent and provide their e-
mail addresses, if appropriate, on the Proposal Acceptance Form.
CLOSING
Thank you for the opportunity to submit this proposal to provide services and serve as your
consultant. We look forward to the opportunity to work with you on this important project and to
serve as your consultant in the future. If you have any questions, or if we can be of additional
service, please contact us.
Respectfully Submitted,
ECS Carolinas, LLP
I /
Anthony J. Scialdone
Senior Environmental Project Manager
Peter J. Domenico, PE
Raleigh Branch Manager
Attachments: Proposal Acceptance Form
Terms and Conditions of Service
PROPOSAL ACCEPTANCE FORM
ECS CAROLINAS, LLP
(Please Print or Type)
Project Name: Facilities Consulting Services for Orange County
Location: Orange County, North Carolina
Proposal No.: 06:16742
Amount: $18,500.00
Please complete and return this Proposal Acceptance Form to ECS as shown at the bottom of this form. By signing
and returning this form, you are providing us with authorization to proceed. Your signature also indicates that you
have read this document and the general conditions of service in its entirety and agree to pay for these services.
CLIENT AND BILLING INFORMATION
Name of Client:
Contact Person:
Telephone No.
E-mail:
Responsible for Payment Approval of Invoice(if different)
Contact Name:
Company Name:
Address
Address
City, State, Zip
Telephone No.:
Fax No:
E-mail Address:
The reports are normally e-mailed directly to client. If you require copies to others, please
provide their names, e-mail addresses and fax numbers below.
Name e-mail Address Phone Number Fax Number
Special Instructions:
Client Signature: x Date:
Return to: Anthony Scialdone Phone: 919-861-9910
ECS Carolinas, LLP Fax: 919-861-9911
9001 Glenwood Avenue Raleigh, North Carolina 27617
Proposal No.: (hereinafter the"Proposal")
Client:
ECS CAROLINAS,LLP
TERMS AND CONDITIONS OF SERVICE
The professional services(the"Services")to be provided by ECS Carolina, LLP["ECS"] harmless from any claims arising from allegations that ECS trespassed or lacked
pursuant to the Proposal shall be provided in accordance with these Terms and Conditions authority to access the Site.
of Service('Terms'),including any addenda as may be incorporated or referenced in writing 7,2 CLIENT warrants that it possesses all necessary permits, licenses and/or utility
shall form the Agreement between ECS and Client. clearances for the Services to be provided by ECS except where ECS' Proposal
1.0 INDEPENDENT CONSULTANT STATUS -ECS shall serve as an independent explicitly states that ECS will obtain such permits,licenses,and/or utility clearances.
professional consultant to CLIENT for Service on the Project, identified above,and shall 7.3 ECS will take reasonable precautions to limit damage to the Site and its
have control over,and responsibility for,the means and methods for providing the Services improvements during the performance of its Services. CLIENT understands that the
identified in the Proposal,including the retention of Subcontractors and Subconsultants use of exploration, boring, sampling, or testing equipment may cause minor, but
common, damage to the Site. The correction and restoration of such common
2.0 SCOPE OF SERVICES-It is understood that the fees,reimbursable expenses damage is CLIENT'S responsibility unless specifically included in ECS'Proposal.
and time schedule defined in the Proposal are based on information provided by CLIENT 7,4 CLIENT agrees that it will not bring any claims for liability or for injury or loss against
and/or CLIENT'S contractors and consultants. CLIENT acknowledges that if this ECS arising from(i)procedures associated with the exploration,sampling or testing
information is not current, is incomplete or inaccurate, if conditions are discovered that activities at the Site,(ii)discovery of Hazardous Materials or suspected Hazardous
could not be reasonably foreseen,or if CLIENT orders additional services,the scope of Materials, or (iii) ECS' findings, conclusions, opinions, recommendations, plans,
services will change,even while the Services are in progress. and/or specfications related to discovery of contamination.
3.0 STANDARD OF CARE 8.0 UNDERGROUND UTILITIES
3.1 In fulfilling its obligations and responsibilities enumerated in the Proposal, 8.1 ECS shall exercise the Standard of Care in evaluating client-furnished information
ECS shall be expected to comply with and its performance evaluated in light as well as information readily and customarily available from public utility locating
of the standard of care expected of professionals in the industry performing services(the"Underground Utility Information")in its effort to identify underground
similar services on projects of like size and complexity at that time in the utilities.The extent of such evaluations shall be at ECS'sole discretion.
region (the "Standard of Care"). Nothing contained in the Proposal, the 8.2 CLIENT recognizes that the Underground Utility Information provided to or obtained
agreed-upon scope of Services,these Terms and Conditions of Service or any by ECS may contain errors or be incomplete.CLIENT understands that ECS may
ECS report,opinion,plan or other document prepared by ECS shall constitute be unable to identify the locations of all subsurface utility lines and man-made
a warranty or guaranty of any nature whatsoever.
features.
3.2 CLIENT understands and agrees that ECS will rely on the facts learned from data 8.3 CLIENT waives, releases, and discharges ECS from and against any claim for
gathered during performance of Services as well as those facts provided by the
CLIENT. CLIENT acknowledges that such data collection is limited to speci areas damage,injury or loss allegedly arising from or related to subterranean structures
fic
that are sampled, bored, tested, observed and/or evaluated. Consequently, (pipes,tanks,cables,or other utilities,etc.)which are not called to ECS'attention in
CLIENT waives any and all claims based upon erroneous facts provided by the writing by CLIENT, not correctly shown on the Underground Utility Information
CLIENT,facts subsequently learned or regarding conditions in areas not specifically and/or not properly marked or located by the utility owners,governmental or quasi-
sampled,bored,tested,observed d evaluated by ECS. governmental locators,or private utility locating services as a result of ECS'or ECS'
subcontractors request for utility marking services made in accordance with local
3.3 If a situation arises that causes ECS to believe compliance with CLIENT'S directives industry standards.
would be contrary to sound engineering practices, would violate applicable laws,
regulations or codes,or will expose ECS to legal claims or charges,ECS shall so 9.0 SAMPLES
advise CLIENT. If ECS'professional judgment is rejected,ECS shall have the right 9.1 Soil,rock,water,building materials and/or other samples and sampling by-products
to terminate its Services in accordance with the provisions of Section 25.0,below. obtained from the Site are and remain the property of CLIENT. Unless other
3.4 If CLIENT decides to disregard ECS'recommendations with respect to complying arrangements are requested by CLIENT and mutually agreed upon by ECS in
with applicable Laws or Regulations,ECS shall determine if applicable law requires writing,ECS will retain samples not consumed in laboratory testing for up to sixty
ECS to notify the appropriate public officials. CLIENT agrees that such (60)calendar days after the issuance of any document containing data obtained
determinations are ECS'sole right to make. from such samples.Samples consumed by laboratory testing procedures will not be
stored.
4.0 CLIENT DISCLOSURES 9.2 Unless CLIENT directs otherwise,and excluding those issues covered in Section
4.1 Where the Scope of Services requires ECS to penetrate a Site surface, CLIENT 10.0,CLIENT authorizes ECS to dispose of CLIENT'S non-hazardous samples and
shall furnish and/or shall direct CLIENT'S consultant(s)or agent(s)to furnish ECS sampling or testing process by-products in accordance with applicable laws and
information identifying the type and location of utility lines and other man-made regulations.
objects known,suspected,or assumed to be located beneath or behind the Site's
surface. ECS shall be entitled to rely on such information for completeness and 10.0 ENVIRONMENTAL RISKS
accuracy without further investigation,analysis,or evaluation. 10.1 When Hazardous Materials are known,assumed,suspected to exist,or discovered
4.2 "Hazardous Materials*shall include but not be limited to any substance that poses at the Site,ECS will endeavor to protect its employees and address public health,
or may pose a present or potential hazard to human health or the environment safety,and environmental issues in accordance with the Standard of Care. CLIENT
whether contained in a product,material,by-product,waste,or sample,and whether agrees to compensate ECS for such efforts.
it exists in a solid, liquid,semi-solid or gaseous form.CLIENT shall notify ECS of 10.2 When Hazardous Materials are known, assumed, or suspected to exist, or
any known, assumed, or suspected regulated, contaminated, or other similar discovered at the Site,ECS and/or ECS'subcontractors will exercise the Standard
Hazardous Materials that may exist at the Site prior to ECS mobilizing to the Site. of Care in containerizing and labeling such Hazardous Materials in accordance with
4.3 If any Hazardous Materials are discovered, or are reasonably suspected by ECS applicable laws and regulations,and will leave the containers on Site. CLIENT is
after its Services begin,ECS shall be entitled to amend the scope of Services and responsible for the retrieval,removal,transport and disposal of such contaminated
adjust its fees to reflect the additional work or personal protective equipment and/or samples,and sampling process byproducts in accordance with applicable law and
safety precautions required by the existence of such Hazardous Materials. regulation.
5.0 INFORMATION PROVIDED BY OTHERS - CLIENT waives, releases and 10.3 Unless explicitly stated in the Scope of Services,ECS will neither subcontract for
discharges ECS from and against any claim for damage,injury or loss allegedly arising out nor arrange for the transport, disposal, or treatment of Hazardous Materials. At
of or in connection wth errors, omissions, or inaccuracies in documents and other CLIENT'S written request, ECS may assist CLIENT in identifying appropriate
information in any form provided to ECS by CLIENT or CLIENTs agents,contractors,or alternatives for transport,off-site treatment,storage,or disposal of such substances,
consultants,including such information that becomes incorporated into ECS documents. but CLIENT shall be solely responsible for the final selection of methods and firms
to provide such services. CLIENT shall sign all manifests for the disposal of
6.0 CONCEALED RISKS -CLIENT acknowledges that special risks are inherent in substances affected by contaminants and shall otherwise exercise prudence in
sampling,testing and/or evaluating concealed conditions that are hidden from view and/or arranging for lawful disposal.
neither readably apparent nor easily accessible, e.g., subsurface conditions, conditions 10.4 In those instances where ECS is expressly retained by CLIENT to assist CLIENT in
behind a wall,beneath a floor,or above a ceiling.Such circumstances require that certain the disposal of Hazardous Materials,samples,or wastes as part of the Proposal,
assumptions be made regarding existing conditions,which may not be verifiable without ECS shall do so only as CLIENTS agent(notwithstanding any other provision of
expending additional sums of money or destroying otherwise adequate or serviceable this AGREEMENT to the contrary). ECS will not assume the role of, nor be
portions of a building or component thereof.Accordingly,ECS shall not be responsible for considered a generator,storer,transporter,or disposer of Hazardous Materials.
the verification of such conditions unless verification can be made by simple visual 10.5 Subsurface sampling may result in unavoidable cross-contamination of certain
observation. Client agrees to bear any and all costs, losses, damages and expenses _ subsurface areas,as when a probe or excavatiordboring device moves through a
(including,but not limited to,the cost of ECS'Additional Services)in any way arising from or contaminated zone and links it to an aquifer, underground stream, pervious soil
in connection with the existence or discovery of such concealed or unknown conditions. stratum, or other hydrous body not previously contaminated, or connects an
7.0 RIGHT OF ENTRY/DAMAGE RESULTING FROM SERVICES uncontaminated zone with a contaminated zone. Because sampling is an essential
element of the Services indicated herein, CLIENT agrees this risk cannot be
7.1 CLIENT warrants that it possesses the authority to grant ECS right of entry to the eliminated. Provided such services were performed in accordance with the
Site for the performance of Services. CLIENT hereby grants ECS and its Standard of Care,CLIENT waives,reieases and discharges ECS from and against
subcontractors and/or agents,the right to enter from time to time onto the property any claim for damage,injury,or loss allegedly arising from or related to such cross-
in order for ECS to perform its Services. CLIENT agrees to indemnify and hold ECS contamination.
ECS Proposal No: Page 1 of 3 Ver.06/04/13
10.6 CLIENT understands that a Phase I Environmental Site Assessment (ESA) is the possible existence of such a condition. CLIENT agrees it cannot make the resolution of
conducted solely to permit ECS to render a professional opinion about the likelihood any dispute with ECS or payment of any amount due to ECS contingent upon ECS signing
of the site having a Recognized Environmental Condition on, in,beneath,or near any such"certification.'
the Site at the time the Services are conducted. No matter how thorough a Phase I
ESA study may be, findings derived from its conduct are highly limited and ECS 15.0 BILLINGS AND PAYMENTS
cannot know or state for an absolute fad that the Site is unaffected or adversely 15.1 Billings will be based on the unit rates, plus travel costs,and other reimbursable
affected by one or more Recognized Environmental Conditions. CLIENT represents expenses as stated in the Professional Fees section of the Proposal. Any Estimate
and warrants that it understands the limitations associated with Phase I ESAs. of Professional Fees stated in these Terms shall not be considered as a not4o-
exceed or lump sum amount unless otherwise explicitly stated. CLIENT
11.0 OWNERSHIP OF DOCUMENTS understands and agrees that even if ECS agrees to a lump sum or not-to-exceed
11.1 ECS shall be deemed the author and owner(or licensee)of all documents,technical amount,that amount shall be limited to number of hours,visits,trips,tests,borings,
reports, letters, photos, boring logs, field data, field notes, laboratory test data, or samples stated in the Proposal.
calculations, designs, plans, specifications, reports, or similar documents and 15.2 CLIENT agrees that all Professional Fees and other unit rates shall be adjusted
estimates of any kind furnished by it[the"Documents of Service']and shall retain all annually to account for inflation based on the most recent 12-month average of the
common law, statutory and other reserved rights, including copyrights. CLIENT Consumer Price Index(CPI-U)for all items as established by www.bis.gov when the
shall have a limited, non-exclusive license to use copies of the Documents of CPI-U exceeds an annual rate of 2.0%.
Service provided to it in connection with the Project for which the Documents of 15.3 Should ECS identify a Changed Condition(s), ECS shall notify the CLIENT of the
Service are provided until the completion of the Project. Changed Condition(s). ECS and CLIENT shall promptly and in good faith negotiate
11.2 ECS' Services are performed and Documents of Service are provided for the an amendment to the Scope of Services,Professional Fees,and time schedule.
CLIENT'S sole use. CLIENT understands and agrees that any use of the 15.4 CLIENT recognizes that time is of the essence with respell to payment of ECS'
Documents of Service of anyone other than the CLIENT,it's licensed consultants invoices,and that timely payment is a material consideration for this agreement. All
and its contractors is not permitted. CLIENT further agrees to tom its c and hold payment shall be in U.S.funds drawn upon U.S.banks and in accordance with the
ECS harmless for any errors,omissions or damage resulting from its contractors' rates and charges set forth in the Professional Fees. Invoices are due and payable
use of ECS'Documents of Service. upon receipt.
11.3 CLIENT agrees to not use ECS'Documents of Service for the Project if the Project 15.5 If CLIENT disputes all or part of an invoice,CLIENT shall provide ECS with written
is subsequently modified in scope,structure or purpose without ECS'prior written notice stating in detail the fads of the dispute within fifteen(15)calendar days of the
Consent. Any reuse without ECS'written consent shall be at CLIENT'S sole risk
and without liability to ECS or to ECS' subcontractor(s). CLIENT agrees to invoice. CLIENT agrees to pay the undisputed amount of such invoice promptly.
indemnify and hold ECS harmless for any errors,omissions or damage resulting 15.6 ECS reserves the right to charge CLIENT an additional charge of one-and-one-half
from its use of ECS'Documents of Service after any modification in scope,structure (1.5)percent(or the maximum percentage allowed by Law,whichever is lower)of
or purpose. the invoiced amount per month for any payment received by ECS more than thirty
11.4 CLIENT agrees to not make any modification to the Documents of Service without (30) calendar days from the date of the invoice, excepting any portion of the
the prior written authorization of ECS. To the fullest extent permitted by law, invoiced amount in dispute. All payments will be applied to accrued interest first
CLIENT agrees to indemnify, defend, and hold ECS harmless from any damage, and then to the unpaid principal amount. Payment of invoices shall not be subject
loss,claim,liability or cost(including reasonable attorneys'fees and defense Costs) to unilateral discounting or set-offs by CLIENT.
arising out of or in connection with any unauthorized modification of the Documents 15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon
of Service by CLIENT or any person or entity that acquires or obtains the CLIENTS ability to obtain financing,zoning,approval of governmental or regulatory
Documents of Service from or through CLIENT. CLIENT represents and warrants agencies,permits,final adjudication of a lawsuit,CLIENTS successful completion
that the Documents of Service shall be used only as submitted by ECS. of the Project, settlement of a real estate transaction, receipt of payment from
CLIENTS client, or any other event unrelated to ECS provision of Services.
12.0 SAFETY Retainage shall not be withheld from any payment,nor shall any deduction be made
12.1 Unless expressly agreed to in writing irr its Proposal,CLIENT agrees that ECS shall from any invoice on account of penalty,liquidated damages,or other sums incurred
have no responsibility whatsoever for any aspect of site safety other than for its own by CLIENT. It is agreed that all costs and legal fees including actual attorney's fees,
employees. Nothing herein shall be construed to relieve CLIENT and/or its and expenses incurred by ECS in obtaining payment under this Agreement, in
contractors, consultants or other parties from their responsibility for site safety. perfecting or obtaining a lien, recovery under a bond, collecting any delinquent
CLIENT also represents and warrants that the General Contractor is solely amounts due,or executing judgments,shall be reimbursed by CLIENT.
responsible for Project site safety and that ECS personnel may rely on the safety 15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of
measures provided by the General Contractor. these Terns,payment of any invoice by the CLIENT shall mean that the CLIENT is
12.2 In the event ECS assumes in writing limited responsibility for specified safety satisfied with ECS'Services and is not aware of any defects in those Services.
issues,the acceptance of such responsibilities does not and shall not be deemed an 16.0 DEFECTS IN SERVICE
acceptance of responsibility for any other non-specified safety issues,including,but
not limited to those relating to excavating, trenching, shoring, drilling, backfilling, 16.1 CLIENT,its personnel,its consultants,and its contractors shall promptly inform ECS
blasting,or other construction activities. during active work on any project of any actual or suspected defects in the Services
so to permit ECS to take such prompt,effective remedial measures that in ECS'
13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES opinion will reduce or eliminate the consequences of any such defective Services.
13.1 CLIENT understands that construction testing and observation services are The correction of defects attributable to ECS'failure to perform in accordance with
provided in an effort to reduce,but cannot eliminate,the risk of problems arising the Standard of Care shall'be provided at no cost to CLIENT. However,ECS shall
during or after construction or remediation. CLIENT agrees that the provision of not be responsible for the correction of any deficiency attributable to CLIENT-
such Services does not create a warranty or guarantee of any type. furnished information, the errors, omissions, defective materials, or improper
13.2 Monitoring and/or testing services provided by ECS shall not in any way relieve the installation of materials by CLIENT's personnel,consultants or contractors,or work
CLIENT'S contractor(s)from their responsibilities and obligations for the quality or not observed by ECS. CLIENT shall compensate ECS for the costs of correcting
completeness of construction as well as their obligation to comply with applicable such defects.
laws,codes,and regulations. 16.2 Modifications to reports,documents and plans required as a result of jurisdictional
13.3 ECS has no responsibility whatsoever for the means, methods, techniques, reviews or CLIENT requests shall not be considered to be defects. CLIENT shall
sequencing or procedures of construction selected, for safety compensate ECS for the provision of such Services.
9 9 A y precautions and
programs incidental to work or services provided by any contractor or other 17,0 INSURANCE-_ECS represents that it and its subcontractors and subconsultants
consultant.ECS does not and shall not have or accept authority to supervise,direct, maintain Workers Compensation insurance,and that ECS is covered by general liability,
control, or stop the work of any contractor or consultant or any of their automobile and professional liability insurance policies in coverage amounts it deems
subcontractors or subconsultants, reasonable and adequate. ECS shall furnish certificates of insurance upon request. The
13.4 ECS strongly recommends that CLIENT retain ECS to provide construction CLIENT is responsible for requesting specific inclusions or limits of coverage that are not
monitoring and testing services on a full time basis to lower the risk of defective or present in ECS insurance package. The cost of such inclusions or coverage increases,if
incomplete Work being installed by CLIENT'S contractor(s). If CLIENT elects to available,will be at the expense of the CLIENT.
retain ECS on a part time basis for any aspect of construction monitoring and/or
testing, CLIENT accepts the risks that a lower level of construction quality may 18.0 LIMITATION OF LIABILITY
occur and that defective or incomplete work may result and not be detected by ECS' 18.1 CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING
part time monitoring and testing. Unless the CLIENT can show that the error or ECS' TOTAL LIABILITY TO CLIENT ARISING FROM ECS' PROFESSIONAL LIABILITY, I.E.
Omission is contained in ECS'reports, CLIENT waives, releases and discharges PROFESSIONAL ACTS,ERRORS,OR OMISSIONS AND FOR ANY AND ALL CAUSES INCLUDING
ECS from and against any other claims for errors,omissions,damages,injuries,or NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY,
toss alleged to arise from defective or incomplete work that was monitored or tested INJURIES, DAMAGES, CLAIMS, LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING
by ECS on a part time basis, Except as set forth in the preceding sentence, REASONABLE ATTORNEYS FEES)RELATING TO PROFESSIONAL SERVICES PROVIDED UNDER
CLIENT agrees to indemnify and hold ECS harmless from all damages,costs,and THIS AGREEMENT TO THE FULLEST ExTENT PERMITTED BY LAW. THE ALLOCATION IS AS
attorneys'fees,for any claims alleging errors,omissions, damage, injury or loss FOLLOWS.
allegedly resulting from Work that was monitored or tested by ECS on a part time 18.1,1 If the proposed fees are $10,000 or less, ECS' total aggregate liability to
basis. CLIENT shall not exceed$20,000,or the total fee received for the services
14.0 CERTIFICATIONS-CLIENT may request,or governing jurisdictions may require, rendered,whichever is greater.
ECS to provide a'Certification'regarding the Services provided by ECS. Any*certification" 18.1.2 If the proposed fees are in excess of$10,000,ECS'total aggregate liability to
required of ECS by the CLIENT or jurisdiction(s)having authority over some or all aspects CLIENT shall not exceed$40,000,or the total fee for the services rendered,
of the Project shall Consist of ECS' inferences and professional opinions based on the whichever is greater.
limited sampling, observations, tests, and/or analyses performed by ECS at discrete 18.2 CLIENT agrees that ECS shall not be responsible for any injury,loss or damage of
locations and times. Such-certifications'shall constitute ECS'professional opinion of a any nature,including bodily injury and property damage,arising directly or indirectly,
condition's existence,but ECS does not guarantee that such condition exists,nor does it in whole or in part,from acts or omissions by the CLIENT,its employees,agents,
relieve other parties of the responsibilities or obligations such parties have with respect to staff,consultants,contractors,or subcontractors to the extent such injury,damage,
ECS Proposal No: Page 2 of 3 Ver.06/04/13
or loss is caused by acts or omissions of CLIENT, its employees, agents, staff, Should this meeting fail to result in a mutually agreeable plan for resolution of the
consultants, contractors, subcontractors or personlentities for whom CLIENT is Dispute,CLIENT and ECS agree that either party may bring litigation.
legally liable. 23.2 CLIENT shall make no claim(whether directly or in the form of a third-party claim)
18.3 CLIENT agrees that ECS'liability for all non-professional liability arising out of this against ECS unless CLIENT shall have first provided ECS with a written certification
agreement or the services provided as a result of the Proposal be limited to executed by an independent engineer licensed in the jurisdiction in which the
$500,000. Project is located,reasonably specifying each and every act or omission which the
certifier contends constitutes a violation of the Standard of Care. Such certificate
19.0 INDEMNIFICATION shall be a precondition to the institution of any judicial proceeding and shall be
19.1 Subject Section 18.0, ECS agrees to hold harmless and indemnify CLIENT from provided to ECS thirty(30)days prior to the institution of such judicial proceedings.
and against damages arising from ECS'negligent performance of its Services,but 23.3 Litigation shall be instituted in a court of competent jurisdiction in the county or
only to the extent that such damages are found to be caused by ECS'negligent district in which ECS' office contracting with the CLIENT is located. The parties
acts,errors or omissions,(specifically excluding any damages caused by any third agree that the law applicable to these Terms and the Services provided pursuant to
party or by the CLIENT.) the Proposal shall be the laws of the Commonwealth of Virginia,but excluding its
19.2 To the fullest extent permitted by Law,CLIENT agrees to indemnify,and hold ECS choice of law rules. Unless otherwise mutually agreed to in writing by both parties,
harmless from and against any and all liability,claims,damages,demands,fines, CLIENT waives the right to remove any litigation action to any other jurisdiction.
penalties,costs and expenditures(including reasonable attorneys'fees and costs of Both parties agree to waive any demand for a trial by jury.
litigation defense and/or settlement)[`Damages l caused in whole or in part by the
negligent acts,errors,or omissions of the CLIENT or CLIENT'S employees,agents, 24.0 CURING A BREACH
staff,contractors,subcontractors,consultants,and clients,provided such Damages 24.1 A party that believes the other has materially breached these Terms shall issue a
are attributable to; (a)the bodily injury,personal injury, sickness, disease and/or written cure notice identifying its alleged grounds for termination.Both parties shall
death of any person;(b)the injury to or loss of value to tangible personal property; promptly and in good faith attempt to identify a cure for the alleged breach or
or(c)a breach of these Terms. The foregoing indemnification shall not apply to the present facts showing the absence of such breach. If a cure can be agreed to or
extent such Damage is found to be caused by the sole negligence, errors, the matter otherwise resolved within thirty(30)calendar days from the date of the
omissions or willful misconduct of ECS. termination notice, the parties shall commit their understandings to writing and
19.3 It is specifically understood and agreed that in no case shall ECS be required to pay termination shall not occur.
an amount of Damages disproportional to ECS' culpability. IF CLIENT Is A 24.2 Either party may waive any right provided by these Terms in curing an actual or
HOMEOWNER HOMEOWMERV ASSOCIATION,CONDOMINIUM OWNER,CONDOMINIUM OWNER'S alleged breach; however, such waiver shall not affect future application of such
ASSOCIATION,OR SIMILAR RESIDENTIAL OWNER,ECS RECOMMENDS THAT CLIENT RETAIN provision or any other provision.
LEGAL COUNSEL BEFORE ENTERING INTO THIS AGREEMENT TO EXPLAIN CLIENTS
RIGHTS AND OBLIGATIONS HEREUNDER AND THE LIMITATIONS,AND RESTRICTIONS IMPOSED 25.0 TERMINATION
BY THIS AGREEMENT. CLIENT AGREES THAT FAILURE OF CLIENT TO RETAIN SUCH 25.1 CLIENT or ECS may terminate this agreement for breach or these terms, non-
COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL COUNSEL AND SHALL NOT BE ALLOWED ON payment,or a failure to cooperate. In the event of termination,the effecting party
GROUNDS OFAVOIDINGANY PROVISION OF THIS AGREEMENT. shall so notify the other party in writing and termination shall become effective
19.4 IF CLIENT IS A RESIDENTIAL BUILDER OR RESIDENTIAL DEVELOPER, CLIENT SHALL fourteen(14)calendar days after receipt of the termination notice.
INDEMNIFY AND HOLD HARMLESS ECS AGAINST ANY AND ALL CLAIMS OR DEMANDS DUE TO 25.2 Irrespective of which party shall effect termination,or the cause therefore,ECS shall
INJURY OR LOSS INITIATED BY ONE OR MORE HOMEOWNERS, UNIT-OWNERS, OR THEIR promptly render to CLIENT a final invoice and CLIENT shall immediately
HOMEOWNER'S ASSOCIATION, COOPERATIVE BOARD, OR SIMILAR GOVERNING ENTITY Compensate ECS for Services rendered and Costs Incurred including those Services
AGAINST CLIENT WHICH RESULTS IN ECS BEING BROUGHTINTOTHE DISPUTE. associated with termination itself, including without limitation, demobilizing,
19.5 IN NO EVENT SHALL THE DUTY TO INDEMNIFY AND HOLD ANOTHER PARTY HARMLESS UNDER modifying schedules,and reassigning personnel.
THIS SECTION 19.0 INCLUDE THE DUTY TO DEFEND. 26.0 TIME BAR TO LEGAL ACTION-Unless prohibited by law,and notwithstanding any
20.0 CONSEQUENTIAL DAMAGES Statute that may provide additional protection,CLIENT and ECS agree that a lawsuit by
20.1 CLIENT shall not be liable to ECS and ECS shall not be liable to CLIENT for any either party alleging a breach of this agreement,violation of the Standard of Care,non-
consequential damages insured by ether due to the faun of the other or their payment of invoices,or arising out of the Services provided hereunder,must be initiated in
employees, consultants, agents, by either or subcontractors, regardless of the a court of competent jurisdiction no more than two(2)years from the time the party knew,or
nature of the fault or whether such liability arises in breach to contract or regardless of the should have known,of the facts and conditions giving rise to its claim,and shall under no
circumstances shall such lawsuit be
ry initiated more than three(3)years from the date of
tort,statute,or any other cause of action. Consequential damages include,but are substantial completion of ECS'Services.
not limited to,loss of use and loss of profit. ices.
20.2 ECS shall not be liable to CLIENT, or any entity engaged directly or indirectly by 27.0 ASSIGNMENT- LIENT and ECS respectively bind themselves,their
CLIENT,for any liquidated damages due to any fault,or failure to act,in part or in successors,assigns,heirs,and legal representatives to the other party and the successors,
total by ECS,its employees,agents,or subcontractors. assigns,heirs and legal representatives of such other party with respect to all covenants of
these Terms. Neither CLIENT nor ECS shalt assign these Terms,any rights thereunder,or
21.0 ,SOURCES OF RECOVERY any cause of action arising therefrom,in whole or in part,without the written consent of the
21.1 All claims for damages related to the Services provided under this agreement shall other. Any purported assignment or transfer,except as permitted above,shall be deemed
be made against the ECS entity contracting with the CLIENT for the Services,and null,void and invalid,the purported assignee shall acquire no rights as a result of the
no other person or entity. CLIENT agrees that it shall not name any affiliated entity purported assignment or transfer and the non-assigning party shall not recognize any such
including parent, peer, or subsidiary entity or any individual officer, director, or purported assignment or transfer.
employee of ECS,specifically including its professional engineers and geologists.
21.2 In the event of any dispute or claim between CLIENT and ECS arising out of in 28.0 SEVERABI -Any provision of these Terms later held to violate any law,statute,
connection with the Project and/or the Services,CLIENT and ECS agree that they or regulation, N be be deemed void,and all remaining provisions shall continue in full force
will look solely to each other for the satisfaction of any such dispute or claim. and effect. CLIENT and ECS shall endeavor to quickly replace a voided provision with a
Moreover,notwithstanding anything to the contrary contained in any other provision valid substitute that expresses the intent of the issues covered by the original provision.
herein, CLIENT and ECS' agree that their respective shareholders, principals, 29.0 SURVIVAL-All obligations arising prior to the termination of the agreement
partners,members,agents,directors,officers,employees,and/or owners shall have represented by these Terms and all provisions allocating responsibility or liability between
no liability whatsoever arising out of or in connection with the Project and/or the CLIENT and ECS shall survive the substantial completion of Services and the
Services provided hereunder. In the event CLIENT brings a claim against an termination of the agreement.
affiliated entity, parent entity, subsidiary entity, or individual officer, director or
employee in contravention of this Section 21,CLIENT agrees to hold ECS harmless 30.0 TITLES:ENTIRE AGREEMENT
from and against all damages, costs, awards, or fees (including attorneys'fees) 30.1 The titles used herein are for general reference only and are not part of the Terms
attributable to such act. and Conditions.
22.0 THIRD PARTY CLAIMS EXCLUSION-CLIENT and ECS agree that the Services 30.2 These Terms and Conditions of Service together with the Proposal, including all
are performed solely for the benefit of the CLIENT and are not intended by either CLIENT or exhibits, appendixes, and other documents appended to it, constitute the entire
ECS to benefit any other person or entity. To the extent that any other person or entity is agreement between CLIENT and ECS. CLIENT acknowledges that all prior
benefited by the Services, such benefit is purely incidental and such other person or entity understandings and negotiations are superseded by this agreement.
shall not be deemed a third party beneficiary to the AGREEMENT. No third-party shall 30.3 CLIENT and ECS agree that subsequent modifications to the agreement
have the right to rely on ECS'opinions rendered in connection with ECS'Services without represented by these shall not be binding unless made in writing and signed by
written consent from both CLIENT and ECS,which shall include,at a minimum,the third- authorized representatives of both parties.
partys agreement to be bound to the same Terms and Conditions contained herein and 30.4 All preprinted terms and conditions on CLIENT'S purchase order, Work
third-party's agreement that ECS'Scope of Services performed is adequate. Authorization, or other service acknowledgement forms, are inapplicable and
23.0 DISPUTE RESOLUTION superseded by these Terms and Conditions of Service.
23.1 In the event any claims, disputes,and other matters in question arising out of or 30.5 CLIENT's execution of a Work Authorization, the submission of a start work
relating to these Terms or breach thereof(collectively referred to as"Disputes'),the authorization(oral or written)or issuance of a purchase order constitutes CLIENT's
parties shall promptly attempt to resolve all such Disputes through executive acceptance of this Proposal and its agreement to be fully bound the foregoing
negotiation between senior representatives of both parties familiar with the Project. Terms. If CLIENT fails to provide ECS with a signed copy of these Terms or the
The parties shall arrange a mutually convenient time for the senior representative of attached Work Authorization,CLIENT agrees that by authorizing and accepting the
each party to meet. Such meeting shall occur within fifteen (15) days of either services of ECS,it will be fully bound by these Terms as if they had been signed by
party's written request for executive negotiation or as otherwise mutually agreed. CLIENT.
ECS Proposal No: Page 3 of 3 Ver.06/04/13