HomeMy WebLinkAbout2013-264 AMS - ECS Carolinas LLP Real Estate Parcel Due Diligence 80A parcels $4,465 [Departmental Use Only]
TITLE Hwy 70A Due Diligence
FY 2013-14
ORANGE COUNTY
CONTRACT UNDER$10,000.00
NORTH CAROLINA
THIS AGREEMENT,made and entered into this 24th day of July, 2013, ("Effective Date")by and
between Orange County, North Carolina, a body politic and corporate organized under the laws of the State
of North Carolina, (the "County"), party of the first part; and ECS Carolinas, LLP (the "Provider"), party of
the second part;
WITNESSETH:
For the purpose and subject to the terms and conditions hereinafter set forth, the County hereby
contracts for the services of the Provider, and the Provider agrees to provide the following services to the
County in accordance with the terms of this Agreement,time being of the essence:
The services and/or materials (hereinafter referred to collectively as "Services") to be furnished
under this Agreement are as follows: Real Estate due diligence analysis to include geotechnical,
environmental, cultural, archaeological and utility capacity according to the attached proposal titled
"Proposal for Geotechnical,Phase I ESA, and Database Review 2.57 Acre Site " dated June 11,2013.
The term of this agreement rendered shall be from July 24th,2013 to August 16th,2013.
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 to the satisfaction of the County. 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. Provider agrees that Provider shall not
sub-contract any of the services to be provided in this Agreement, nor shall Provider assign any right or
responsibility granted or required by this Agreement,without the prior written approval of the County.
SPECIFIC TERMS
1. Payment: The County agrees to pay at the rates specified for Services satisfactorily
performed in accord with this Agreement. The amount to be paid by the County shall not exceed Four
Thousand Four Hundred Sixty Five Dollars, ($4,465). Payment shall be made within thirty (30) days of an
invoice properly submitted to County. 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.
2. Non—waiver: Failure by County at any time to require the performance by Provider of any
of the provisions hereof shall in no way waive or affect the County's right hereunder to enforce the same,nor
shall any waiver by the County of any breach be held to be a waiver of any succeeding breach or a waiver of
this Non-Waiver Clause.
3. Independent Contractor: The Provider shall operate as an independent Provider, and the
County shall not be responsible for any of the Provider's acts or omissions. The Provider shall not be treated
as an employee with respect to the Services performed hereunder for federal or state tax, unemployment or
workers' compensation purposes. The Provider understands that neither federal, nor state, nor payroll tax of
any kind shall be withheld or paid by the County on behalf of the Provider or the employees of the Provider.
4. Insurance: The Provider shall obtain, at its sole expense, all insurance needed to adequately
insure itself during the performance of these services as required by the County's Risk Management Policy.
Revised July 2010 1
5. Indemnity: The Provider agrees to defend, indemnify, and hold harmless Orange County
from all losses, liabilities, claims, demands, suits, costs, damages or expenses (including reasonable
attorney's fees) arising from bodily injury, including death, to any person or persons or damage to or
destruction of any property caused in whole or in part by any negligent or intentional act or omission on the
part of the Provider.
6. Termination: This Agreement may be terminated at any time by mutual written agreement of
the parties or by the County upon written notice to the Provider.
7. Entire Agreement: The parties have read this Agreement and agree to be bound by all of its
terms, and further agree that it constitutes the complete and exclusive statement of the Agreement between
the parties unless and until modified in writing and signed by the parties. Modifications may be evidenced
by telefacsimile signature.
8. Governing Law: Both parties agree that this Agreement shall be governed by the laws of the
State of North Carolina. Should either party initiate litigation to settle any dispute involving the terms of this
Agreement such Iitigation shall be initiated in the General Court of Justice of North Carolina seated in
Orange County, North Carolina.
9. 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.
IN WITNESS WHEREOF,Orange County and the Provider have signed this Agreement,effective
as of the day first written above.
ORAN O NTY PRO DE
By: By:
County Manag Title:
200 S. Cameron St ECS Carolinas,LLP
P.O. Box 8181 9001 Glenwood Avenue
Hillsborough,NC 27278 Raleigh,NC 27617
This instrument has been approved as to technical content.
Jef ey Thompson, Department Director
This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal
Control Act.
44
Office of the Finance Director
This instrument has n approved as to form and legal sufficiency.
)V
Of ye of the County Attorney
Revised July 2010 2
ECS CAROLINAS, LLP "Setting the Standard for Service"
Geotechnical • Construction Materials • Environmental • Facilities NC Registered Engineering Finn F-1078
June 11, 2013
Mr. Jeff Thompson
Asset Management Services Director
Orange County Government
131 W. Margaret Lane, PO Box 8181
Hillsborough, North Carolina 27278rginia 20175
RE: Proposal for Geotechnical, Phase I ESA and Database Review
2.57 Acres Site
U.S. 70A& Meadowland Drive, Hillsborough, North Carolina
ECS Proposal Number 06P:16687-16689
Dear Mr. Thompson:
ECS Carolinas, LLP (ECS) is pleased to provide Orange County Asset Management and
Purchasing with general guidelines and a fee estimate for performing Geotechnical Services
and a Phase I Environmental Site Assessment (ESA) for the above-referenced property. This
proposal contains a summary of relevant information as ECS understands it, a project schedule
and the estimated costs for completion of the proposed work.
PROJECT UNDERSTANDING
The client is looking to purchase the property for either a building expansion or a parking lot
expansion. ECS has not visited the site; however, based on the information provided by you,
and review of local aerial photos and the Orange County GIS website, we understand that the
2.57-acre site consist of residential rental homes. The site (PIN# 9874717383, 9874716466,
and 9874715479) is located at Highway US-70A and Meadowland Drive in Hillsborough, North
Carolina. We understand that Geotechnical services, Phase I Environmental Site Assessment
and a Database Review are requested for this site.
SCOPE OF SERVICES
Task 1 - Geotechnical Services
The purpose of this exploration is to explore the site subsurface conditions and provide
geotechnical recommendations for site grading procedures for construction of the proposed
storage area. To accomplish this, ECS proposes to explore the site with soil test borings as
described below. This information should be used by the design engineers and architects to
formulate the individual component designs.
Field Exploration and Laboratory Services
Our services will include drilling a total of 3 exploratory soil test borings to depths of 15 feet below
the existing ground surface or auger refusal, whichever occurs first. The proposal assumes a total
of 45 linear feet of drilling. According to the client, if adverse conditions are identified in the
boring, additional borings may be requested to determine the extent of the material. If additional
footage is required, it will be invoiced at an additional rate of $11.00 per linear foot.
Standard Penetration Test (SPT) sampling will be performed in general accordance with ASTM
D1586 at regular depth intervals in each soil test boring. If existing fill material is encountered,
9001 Glenwood Avenue, Raleigh, NC 27617-7505 • T: 919-861-9910 • F: 919-861-9911 • www.ecslimited.com
ECS Capitol Services,PLLC • ECS Carolinas,LLP • ECS Florida,LLC • ECS*idwest,LLC • ECS Mid-Atlantic,LLC • ECS Southeast,LLC • ECS Texas,LLP
Proposal for Geotechnical Services,Phase 1 ESA and Database Review
2.57 Acres Site-
Highway U.S.70A and Meadowland Drive,Hillsborough,North Carolina
ECS Proposal Number 06P:16687-16689
the boring(s) should be extended through the fill into firm natural soils; and therefore, additional
cost should be anticipated (not included in this proposal). The boreholes will be checked for
groundwater upon completion of drilling, and then backfilled by shoveling the soil cuttings into
the holes, some settling may occur over time.
Depending on the weather, soil and site conditions, ground disturbance (ruts, tire tracks, etc.)
must be anticipated during this exploration program. This is normal for driving a large truck-
mounted drill rig over a site and that ECS or ECS's subcontractors are not responsible to
restore the ground surface to its original condition. If ground restoration is required, it will be
invoiced at an additional rate of $160/hour plus materials.
Upon completion of the field exploration, the soil samples will be returned to the laboratory and
visually classified in general accordance with the Unified Soil Classification System. We do not
plan on performing any laboratory testing at this time.
Engineering Report
The conditions encountered by the borings will be evaluated by a geotechnical engineer and
recommendations for design and construction of the project will be developed. The engineering
report will include the following items:
• Project description;
• Site conditions, including geologic, and special site features;
• Field exploration procedures;
• Subsurface conditions;
• Site development recommendations;
• Suitability of soils for use as fill material;
• Discussion of groundwater impact;
• Techniques to control shallow groundwater;
• Compaction recommendations;
• Special conditions encountered;
• Site vicinity map;
• Boring location plan; and
• Soil test boring logs.
Task 2- Phase I Environmental Site Assessment (ESA)
The Phase I ESA will be prepared in general accordance with ASTM Standard E 1527-05,
Standard Practice for Phase I Environmental Site Assessments. For a more detailed discussion
of procedures, please refer to the attached document entitled "Scope of Services for Phase I
Environmental Site Assessments." If you should subsequently select a lender for this property
prior to completion of the Phase I ESA, please notify us immediately so that ECS may
determine if there are additional lender requirements over and above those specified in the
ASTM Standard. ECS reserves the right to adjust its quoted price for this Phase I ESA if
supplemental investigation or testing is necessary to satisfy requirements which may be more
stringent than those described in this proposal.
The proper performance of "due diligence" in respect to environmental site assessments
requires both an on-site inspection and a careful review of available applicable local, state and
federal public records. It would expedite matters if your office could provide ECS with a site
plan and a point of contact for site access. In addition, we would appreciate receiving a current
chain-of-ownership for the subject site back to at least 1940 if one is available.
2
Proposal for Geotechnical Services,Phase 1 ESA and Database Review
2.57 Acres Site-
Highway U.S.70A and Meadowland Drive,Hillsborough,North Carolina
ECS Proposal Number 06P:16687-16689
Task 3 - Database Review
To determine potential impacts to historic/architectural resources, and archaeological resources,
an ECS scientist will review the following databases:
1) Review the North Carolina State Historic Preservation Office's (SHPO) Database for
previously documented occurrences of protected historic and/or architectural resources
either on or within the vicinity of the site.
2) Review the North Carolina State Archaeological Office's (SAO) Database for previously
documented occurrences of archaeological resources either on or within the vicinity of
the project site.
3) Prepare a Letter Report that summarizes the findings of sub-tasks (1 — 3) above and, if
either rare species/suitable habitat or important historic/archaeological resources occur
on the site, recommend measures for impact avoidance, minimization, and mitigation.
FEE ESTIMATE
Task 1 - Geotechnical Exploration
Based on the scope of services and drilling quantities outlined in this proposal, we have
estimated the fee to perform our services as follows:
Service Descriptions Units Rates Service Fees
Field Exploration:
Private Utility Locator, lump sum - $ 600.00 if required
Drill Rig Mobilization (Truck), lump sum 1 $ 450.00 $ 450.00
Drilling Borings(0'-50'Ca) <50 bpf), per linear foot 45 $ 11.00 $ 495.00
Access Delays/Standby Time, per hour - $ 140.00 if required
Total Field Exploration: $ 945.00
Engineering Services
Boring Layout and Utility Clearance, lump sum 1 $ 75.00 $ 75.00
Visual Classifications, per sample 15 $ 3.00 $ 45.00
Report Preparation, Drafting, Administrative, lump sum 1 $ 800.00 $ 800.00
Total Engineering Services $ 920.00
TOTAL ESTIMATE OF SERVICES: $ 1,865.00
The above fees and our schedule assume that the site is accessible to our truck-mounted
drilling equipment with no hand and dozer clearing. It also assumes that we have full access to
the site and are not required to encounter standby time or wait on others to gain access to our
drilling locations. If these problems are encountered, you will be charged the additional time plus
the additional charges in accordance to our attached Fee Schedule.
Provided conditions are as understood, and as assumed, we would expect the final costs to be
as outlined above. Should conditions, sampling results or observations indicate that additional
work is necessary or warranted, we would notify you of the additional costs before modifying or
expanding the extent of our scope of services. If other items are required based on field
conditions encountered in our field exploration program, they would be invoiced in accordance
3
Proposal for Geotechnical Services,Phase 1 ESA and Database Review
2.57 Acres Site-
Highway U.S.70A and Meadowland Drive,Hillsborough,North Carolina
ECS Proposal Number 06P:16687-16689
with the attached Fee Schedule. Before modifying or expanding the extent of our exploration
program, you would be informed of our intentions for both your review and authorization.
Task 2 - Phase I ESA
Based on the above outlined scope of services, ECS can perform the Phase I ESA for a lump sum
fee of$1,800.00
Task 3— Database Review
Based on the above outlined scope of services, ECS can perform the Database Review for a lump
sum fee of$800.00.
Preliminary Items
Existing utilities must be addressed before beginning on-site exploratory work, as follows:
• ECS will contact the public utility locator service, North Carolina One-Call Center, to request
that utilities be marked prior to performing exploratory work (digging, drilling, etc.). The
North Carolina One-Call Center then contacts the utility companies typically known to have
utilities located in the vicinity of the project site. Normally, this includes water, gas, sewer,
electrical power, telephone, and cable. The individual companies mark their utilities using
spray paint, but only extend to the meter. It is the client's responsibility to identify other
utilities.
• ECS herein asks that the client notify us of all utilities located on-site, particularly those
utilities beyond the meter or private utilities that are not identified by the North Carolina One-
Call Center. While ECS will take precautions to avoid utilities that the owner notifies ECS of,
ECS is not responsible for utilities that the North Carolina One-Call Center does not mark.
• Hiring Private Locator services is beyond the scope of this proposal and not included.
However, for an additional fee, ECS can retain a private locator to locate utilities beyond the
meters and private utilities. If this is needed on this project, please identify this on the
attached "Proposal Acceptance Form."
SCHEDULE OF WORK
We will begin the above scope of work immediately after receiving your written authorization to
proceed. Our work starts with our contacting the public utility locator service, but we cannot
begin work on-site until they have completed their location work, usually within 48 hours,
excluding weekends and holidays.
Based on current availability and weather permitting, we anticipate that the field work will begin
within 3 to 5 business days of written authorization to proceed. We anticipate that the field work
will take about 2 business days to complete, and the reports will be provided within 15 business
days after receiving written authorization to proceed. In order to maintain this schedule, it is
critical that we receive your written authorization, special instructions and distribution list in a
timely manner.
4
Proposal for Geotechnical Services,Phase 1 ESA and Database Review
2.57 Acres Site-
Highway U.S.70A and Meadowland Drive,Hillsborough,North Carolina
ECS Proposal Number 06P:16687-16689
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. By signing the Proposal Acceptance Form or referencing this proposal,
you are also accepting the Terms and Conditions of Service and this proposal in its entirety.
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. This
proposal is valid for a period of sixty days beyond that date it may be necessary to revise our
schedule or fee.
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. We will provide the reports by e-
mail; and up to 3 hard copies if this is requested. Please list those to whom the reports should
be sent and provide their e-mail addresses, if appropriate, on the Proposal Acceptance Form.
Again, 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 project and to
hopefully serve as your consultant in the future. If you have any questions, or if we can be of
any additional service, please contact us.
Respectfully Submitted,
ECS CAROLINAS, LLP
2
Christina N. Warr, P.E. Peter J. Domenico, P.E.
Project Engineer Branch Manger
Attachments: Proposal Acceptance Form
Proposal Assumptions
Non-Scope Services
Fee Schedule
Environmental User Questionnaire
Terms and Conditions of Service
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Proposal for Geotechnical Services,Phase 1 ESA and Database Review
2.57 Acres Site-
Highway U.S.70A and Meadowland Drive,Hillsborough,North Carolina
ECS Proposal Number 06P:16687-16689
PROPOSAL ACCEPTANCE FORM
ECS CAROLINAS, LLP
Project Name: 2.57 Acres Site - Geotechnical Services, Phase I ESA and Database Review
Location: US70-A and Meadowland Drive, Hillsborough, North Carolina
Proposal No.: 06:16687-16689
Est. Amount: Geotechnical: $1,865 Phase I ESA: $1.80 0 Database Review: 800
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, providing us
permission to enter the site, and making this proposal the agreement between us. Your signature also
indicates that you have read this document and the terms and conditions of service in its entirety and
agree to pay for these services.
Please indicate here if you would like ECS to perform Environmental Lien Research for the lump
sum fee of$300 per tax parcel: Yes No
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:
Private Utility Locate Services Requested (additional fee): Yes No
Client Signature: X Date:
Return to: Christina N. Warr, El Phone: 919-861-9910
ECS Carolinas, LLP Fax: 919-861-9911
9001 Glenwood Avenue
Raleigh, North Carolina 27617
6
Proposal for Geotechnical Services,Phase 1 ESA and Database Review
2.57 Acres Site-
Highway U.S.70A and Meadowland Drive,Hillsborough,North Carolina
ECS Proposal Number 06P:16687-16689
PHASE 1 ESA- PROPOSAL ASSUMPTIONS
ECS has made the following assumptions in developing this proposal:
• Prices presented herein are valid for 60 days from the date of this proposal.
• The lump sum fee for the Phase I ESA does not include the cost for Land Title Record and
Judicial Record Search for Environmental Liens or Activity and Use Limitations associated
with the subject site (see Question 1 on the Attached Questionnaire). Please forward the
results of the land title record and judicial record review for our report. Failure to provide
this information may preclude CERCLA liability protections.
• If you would prefer, ECS can obtain this Land Title Record and Judicial Record Search for
Environmental Liens or Activity and Use Limitations from a third party provider for an
additional fee of $300 per tax parcel for the subject site. Please note, it may take
approximately two to four weeks upon authorization to procure this information.
Please initialize on the proposal acceptance sheet if you would like to contract ECS for this
service.
• The lump sum fee includes reviewing regulatory files pertaining to the subject site maintained
at the Raleigh Regional Office of the North Carolina Department of Environment and Natural
Resources (NCDENR) if the site is identified by the regulatory search.
• The lump sum fee does not include reviewing regulatory files for OFF-SITE concerns. An
OFF-SITE concern is used to describe if any of the surrounding properties show potential
concern. If requested, ECS can review these files maintained at the Raleigh Regional Office of
the NCDENR for a cost of $350. This fee will be waived if ECS is reviewing files for on-site
issues. However, ECS will contact you for your authorization prior to conducting the regulatory
review.
• Additional project work not specifically addressed by this proposal shall be charged at a time
and materials rate in accordance with the ECS Unit Fee Schedule in place at the time the
service is requested. The current ECS Unit Fee Schedule is attached.
Environmental Disclosure
In accordance with the ASTM protocol, it is the obligation of the User (i.e., the Client) to report to
the environmental professional (i.e., ECS) environmental liens or activity and use limitations
encumbering the property or specialized knowledge or experience of the user that would
provide information about previous ownership or uses of the property that may be material to
identifying recognized environmental conditions. Based on this, ECS requests previous
environmental information related to the property. Attached is an Environmental Questionnaire
for User detailing specific information required by the ASTM E1527-05 standard. This
questionnaire must be completed by the User and returned to ECS.
The purpose of a Phase I Environmental Site Assessment (ESA) is to estimate the potential for
the property under investigation to contain substantial levels of contamination. Contaminants
can occur in the surface water, groundwater, soil and/or within structures at a given site.
Contamination may result from present or past activities either on the property under
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Proposal for Geotechnical Services,Phase 1 ESA and Database Review
2.57 Acres Site-
Highway U.S.70A and Meadowland Drive,Hillsborough,North Carolina
ECS Proposal Number 06P:16687-16689
investigation or from off-site sources. A nationally standardized practice for Phase I ESAs was
adopted and published by the American Society for Testing and Materials in May of 1993 and
updated in 2005. ECS performs the Phase I ESA in accordance with ASTM Designation E1527-
05, Standard Practice for Environmental Site Assessments; Phase I Environmental Site
Assessment Process. Based on our past experience in performing ESAs and the ASTM
Standard, ECS utilizes a phased approach to these projects, which results in a cost-effective
and time-efficient means in meeting the needs of our clients.
Phase I ESA
The work activities under this phase are normally completed within 15 to 21 business days upon
written authorization. Phase I ESAs do not involve sub-surface investigations, environmental
sampling or chemical analyses. The primary objectives of a typical Phase I ESA are to:
1. Assess the probability of contamination of the surface water, groundwater, or soils
within the property boundaries (unless otherwise requested, structural, asbestos,
lead, radon or wetlands evaluations are generally not performed);
2. Determine, if contamination is believed to have occurred, the potential source
material(s) and location(s);
3. Provide a written assessment which includes our conclusions and recommendations.
Prior to an on-site assessment of the property under review, available pertinent records,
documents, photographs, and maps will be compiled and reviewed. These tasks are performed
to identify previous activities at or near the site under review that might have had a negative
impact on the soils and groundwater associated with the property.
Upon completion of a Phase I ESA, a report in ASTM E1527-05 format is submitted that would
include:
• Summary of the site location and history;
• Regional geologic and hydrogeologic characteristics;
• Documentation of field investigation methods, activities, and results;
• Documentation and review of client, facility, public, and regulatory records;
• Photographic records of unusual or questionable site conditions encountered;
• Our professional opinion concerning the presence or indicated absence of
environmental conditions for the site; and
• Recommendations for further investigative activities, if warranted.
s
Proposal for Geotechnical Services,Phase 1 ESA and Database Review
2.57 Acres Site-
Highway U.S.70A and Meadowland Drive,Hillsborough,North Carolina
ECS Proposal Number 06P:16687-16689
NOW SCOPE SERVICES
ASBESTOS SURVEY
The site contains a two single family homes, reportedly scheduled for demolition. The purpose
of this work is to survey the property to identify asbestos-containing materials (ACM) prior to
demolition activities. ECS proposes to complete the asbestos survey as described below:
1. ECS will survey the property to identify ACM in general accordance with the U.S.
Environmental Protection Agency (EPA) and NESHAPS requirements. Personnel
performing the asbestos survey will be registered as Accredited Asbestos Inspectors
within North Carolina.
2. ECS will begin by interviewing the site contact (if any) to learn available information
regarding the past history of the building, including ages of materials, past renovations,
maintenance, etc.
3. ECS will observe the property and identify the homogenous areas. Homogeneous areas
are defined as sections of building materials appearing to have been installed in the
same general time period, and are of uniform color and texture. Once homogeneous
areas are identified, samples will be collected of materials suspected to contain asbestos
in general accordance with NESHAP regulations. Specifically, samples will be collected
from random locations of each homogeneous area. The number of samples collected
from each homogeneous area will vary, based upon the following criteria:
• Thermal Insulation Materials (piping, breeching, boiler insulation, etc.) - A
minimum of three samples are required. Only patch areas (less than six square
or linear feet) may have one sample collected.
• Surfacing Materials (plaster, fireproofing, etc.) — A minimum of seven samples
are to be taken for areas greater than 5,000 square feet; five samples for areas
greater than 1,000 square feet, but less than 5,000 square feet; three samples
for areas less than 1,000 square feet; one sample for patching material.
• Miscellaneous Materials (flooring, adhesives, roofing, wallboard, etc.) — A
minimum of two samples are required.
4. Samples collected from the site will be delivered to a laboratory accredited by the
National Voluntary Laboratory Accreditation Program (NVLAP) for testing using for PLM
(polarized light microscopy). A chain of custody will be maintained with the samples.
5. If one sample of a material from a homogeneous area is reported to contain greater than
1% asbestos, then by EPA definition, it is characterized as an asbestos-containing
material.
6. This assessment will include limited destructive measures. However, due to the limited
nature of our sampling, inaccessible materials may exist in chases, above fixed ceilings,
behind permanent or attached fixtures, behind walls, etc. Suspect materials observed in
inaccessible areas will have to be assumed positive or be evaluated at the time of
discovery.
9
Proposal for Geotechnical Services,Phase 1 ESA and Database Review
2.57 Acres Site-
Highway U.S.70A and Meadowland Drive,Hillsborough,North Carolina
ECS Proposal Number 06P:16687-16689
7. An electronic report will be provided, which will detail the approximate quantity and
location of the ACM, which must be removed prior to demolition by a licensed asbestos
abatement contractor and documented.
Based on our understanding of the project background provided by client and the documented
scope of services, the fees for the asbestos survey will be $1,200 plus $12/sample. ECS
typically collects 30 to 40 samples for a single family home survey. Samples will be submitted
to the laboratory for 72-hour turnaround time.
RADON TESTING
Radon is a naturally occurring radioactive gas that seeps out of the bedrock and up through the
soil. Radon can collect in basements and other poorly ventilated areas on the ground level of
structures. Although it is not a requirement for residential property transactions, ECS
recommends radon testing.
If requested, ECS can perform radon testing, following the Environmental Protection Agency
(EPA) protocol. The EPA guidelines for testing involves, at a minimum, placing two radon
canisters side-by-side, approximately 16 to 24 inches off the ground, in the most frequently
occupied room on the lowest floor of the building, and left in place to collect radon gas for three
to five days. After sample collection, the canisters are shipped to an independent laboratory
and analyzed for picoCuries of radon per liter of air (pCi/1). The average pCi/I reading of the two
canisters is the reported test result. The EPA's action level is 4.0 pCi/I, which means that for
reported results above this level, engineering controls, remediation, and/or retesting is
recommended. The fee for our services will be $600.00.
LEAD IN DRINKING WATER
Lead-based paint testing will be performed by a licensed NC lead inspector to identify general
locations of lead-based paint at the properties. The lead paint survey will not be performed to
US Housing and Urban Development (HUD) standards as this property is not child-occupied or
target housing as outlined in the HUD standards. ECS will use the XRF analyzer to detect lead-
based paint. The XRF will detect each layer (but not distinguish between layers of paint) to the
substrate. The fee for our services will be $950.00.
The EPA has established a program to control lead levels in drinking water, which can be a
significant source of exposure to lead in some areas. Because Title X (EPA) does not define
water as a lead-based paint hazard, and because building owners may not be able to control
lead in water, water sampling is not required for most lead-based paint risk assessments. Risk
assessors should be prepared to conduct water sampling if the owner request it. Most lead in
drinking water is introduced by plumbing system corrosion, not from groundwater. The EPA
drinking water limit is 15 parts per billion (ppb). If the levels are greater than this, the EPA may
require corrosion control treatment (usually implemented by the local water authority), source
water treatment, public education and lead service line replacement. To perform additional lead
testing for drinking water, it would be $600.00.
10
FEE SCHEDULE
For ECS Carolinas, LLP
ECS Proposal No. 06P:16687-16689
ENGINEERING - PROFESSIONAL, TECHNICAL AND SUPPORT SERVICES
Professional Staff
AdministrativeSupport.............................................................................................................................$ 45.00/hour
StaffGeologist .........................................................................................................................................$ 65.00/hour
StaffEngineer ..........................................................................................................................................$ 65.00/hour
ProjectScientist........................................................................................................................................$ 70.00/hour
Staff Geologist/Hydrogeologist ................................................................................................................$ 75.00/hour
Professional Engineer, P.E./Professional Geologist L.G. .........................................................................$ 85.00/hour
Senior Professional Engineer, P.E./Professional Geologist,L.G. .............................................................$ 95.00/hour
PrincipalEngineer, P.E. ..........................................................................................................................$ 125.00/hour
ChiefEngineer, P.E. ................................................................................................................................$ 150.00/hour
Technical Staff
ConcreteTechnician ................................................................................................................................$ 34.00/hour
Soil or Materials Field or Lab Technician Level I ....................................................................................$ 34.00/hour
Soil or Materials Field or Lab Technician Level II ....................................................................................$ 34.00/hour
Senior Soil or Materials Technician Level I ..............................................................................................$ 36.00/hour
Senior Soil or Materials Technician Level 11 .............................................................................................$ 38.00/hour
Senior Foundation Technician(.")............................................................................................................$ 40.00/hour
Draftsman.................................................................................................................................................$ 45.00/hour
OMS Certified NCDOT Technician(`*).....................................................................................................$ 55.00/hour
ChiefMaterials Technician.......................................................................................................................$ 45.00/hour
Manager Geotechnical Laboratory...........................................................................................................$ 55.00/hour
EnvironmentalTechnician..........................................................................................................................$ 55.00/hour
Managerof Field Services(..)..................................................................................................................$ 95.00/hour
Equipment and Miscellaneous Expenses
HandAuger Services Equipment.............................................................................................................$ 35.00/hour
Concrete/Asphalt Coring Equipment .......................................................................................................$ 35.00/hour
Hand or Power Auger Crew(Typ.0'-10'depth,or to refusal)...................................................................$ 75.00/hour
Drill Rig Standby Time(difficult moving,access problems,etc.) .............................................................$ 140.00/hour
Drill Crew Charge for Hand Clearing or Chain Saw Clearing ..................................................................$ 140.00/hour
Drill Crew returning to site for Site Restoration ........................................................................................$ 160.00/hour
ComputerServices...................................................................................................................................$ 35.00/hour
GlobalPositioning System........................................................................................................................$ 520.00/day
Charges for additional copies of reports provided ...................................................................................$ 35.00/report
Charge for Fax Sent,Long Distance/Local...............................................................................................$0.50/0.20/sheet
Meals and Accommodations,per person.................................................................................................$ 100.00/day
Mileage ....................................................................................................................................................$ .65/mile
Subcontractor Services(drilling,geo-probe,clearing,utility locator,etc.) ...............................................$ Cost+ 15%
Shipping Charges for reports,samples,test equipment,etc....................................................................$ Cost+15%
Materials(piezometers,observation wells,settlement plates,etc.)..........................................................$ Cost+20%
Notes: 1. Charges for engineering and technical personnel will be made for time spent in the field,in engineering
analysis,in preparation of reports,and in travel to and from the job.
2. Overtime,at the rate of 1.5 x standard rate,will be charged for all technical staff for work exceeding
40 hours per week,work over 8 hours per day,or during holidays,Saturdays,or Sundays.
3. A surcharge of 50 percent will be applied to all time spent in depositions and testifying in a court of law
4. A surcharge of 25 percent will be applied to all time spent on a watercraft
11
Environmental Questionnaire for User (required for conformance
with ASTM E 1527-05). Please fax answers to questions back to
ECS Environmental Dept. at 919-861-9911 or Scan and email to
Ijones @ecslimited.com.
Site Name:
Name and Title of Person Completing Questionnaire (Please Print):
Signature of Person Completing Questionnaire:
Date:
Parcel Owner(s) & Parcel Owner(s) Contact Number(s)
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
(1.) Environmental cleanup liens that are filed or recorded against the site (40 CFR
312.25). ASTM E 1527-05 states that the user (ECS's client) should perform a review of
recorded land title records and judicial records for environmental liens or activity and use
limitations for the site. Please forward the results of the land title record and judicial record
review. If you would prefer, ECS can obtain this information from a third party provider for an
additional fee. Please let ECS know if you would like to contract ECS for this service.
Please check one: Client to Provide ECS to Provide
(2.) Activity and land use limitations that are in place on the site or that have been filed or
recorded in a registry (40 CFR 312.26). Are you aware of any activity use limitations (AULs),
such as engineering controls, land use restrictions or institutional controls that are in place at
the site and/or have been filed or recorded in a registry under federal, tribal, state or local law?
Please check one: NO YES
If yes, please explain
(3.) Specialized knowledge or experience of the person seeking to qualify for the LLP (40
CFR 312.28). As the user of this ESA do you have any specialized knowledge or experience
related to the property or nearby properties? For example, are you involved in the same line of
business as the current or former occupants of the property or an adjoining property so that you
would have specialized knowledge of the chemicals and processes used by this type of
business?
Please check one: NO YES
If yes, please explain
(4.) Relationship of the purchase price to the fair market value of the property if it were
not contaminated (40 CFR 312.29). Does the purchase price being paid for this property
reasonably reflect the fair market value of the property?
Please check one: NO YES
If no, please explain
If you conclude that there is a difference, have you considered whether the lower purchase price
is because contamination is known or believed to be present at the property?
2
(5.) Commonly known or reasonably ascertainable information about the property (40
CFR 312.30). Are you aware of commonly known or reasonably ascertainable information about
the property that would help the environmental professional to identify conditions indicative of
releases or threatened releases? For example, as user,
(a.) Do you know the past uses of the property?
(b.) Do you know of specific chemicals that are present or once were present at the property?
(c.) Do you know of spills or other chemical releases that have taken place at the property?
(d.) Do you know of any environmental cleanups that have taken place at the property?
a) Please check one: NO YES
If yes, please explain
b) Please check one: NO YES
If yes, please explain
c) Please check one: NO YES
If yes, please explain
d) Please check one: NO YES
If yes, please explain
3
(6.) The degree of obviousness of the presence of likely presence of contamination at the
property, and the ability to detect the contamination by appropriate investigation (40 CFR
312.31). As the user of this ESA, based on your knowledge and experience related to the
property are there any obvious indicators that point to the presence or likely presence of
contamination at the property?
Please check one: NO YES
If yes, please explain
(7.) ASTM E 1527-05 indicates that, "Either the user shall make known to the
environmental professional the reason why the user wants to have the Phase I
Environmental Site Assessment performed or, if the user does not identify the purpose
of the Phase I Environmental Site Assessment, the environmental professional shall
assume the purpose is to qualify for an LLP to CERCLA liability and state this in the
report." As the user of this ESA, what is the reason for conducting the Phase I ESA? If this
question is unanswered, ECS will assume that the user's reason for the ESA is to qualify for
landowner liability protections to CERCLA liability.
4
ECS CAROLINAS, LLP
TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions of Service,including any supplements that may be agreed
to,along with the accompanying Scope of Services and Professional Fees constitute the 7.0 RIGHT OF ENTRYIDAMAGE RESULTING FROM SERVICES
entire Agreement["AGREEMENT"]under which Services are to be provided by ECS- 7.1 CLIENT warrants that it possesses the authority to provide right of entry
Carolinas, LLP["ECS'l (including its employees,officers,successors and assigns)for permission for the performance of ECS'Services. CLIENT hereby grants ECS
Client["CLIENT"](including its employees,officers,successors and assigns). and its subcontractors and/or agents,the right to enter from time to time onto the
1.0 INDEPENDENT CONSULTANT STATUS property owned by CLIENT and/or other(s)in order for ECS to perform the Scope
of Services.
1.1 Except as may be otherwise noted herein,ECS shall serve as an independent 7,2 Except where ECS' Scope of Services explicitly includes obtaining permits,
professional consultant to CLIENT and shall have control over,and responsibility licenses,and/or utility clearances for the performance of ECS'Services,CLIENT
for,the means and methods for providing the Services under this AGREEMENT, warrants that it possesses all necessary permits, licenses and/or utility
including the retention of Subcontractors and Subconsultants. Unless expressly clearances for the Services to be provided by ECS.
stated in ECS'Scope of Services, ECS shall not serve as CLIENT'S agent or
representative. 7.3 ECS will take reasonable precautions to limit damage to the Site and
Improvements during the performance of ECS'Services. CLIENT understands
2.0 SCOPE OF SERVICES that use of exploration, sampling, or testing equipment may cause some
2.1 It is understood that the Scope of Services, Professional Fees, and time damage,the correction and restoration of which is not part of this AGREEMENT,
schedule defined in the Scope of Services are based on information provided by unless explicitly stated in ECS' Scope of Services, and reflected in the
CLIENT and/or CLIENT'S contractors and consultants. CLIENT acknowledges Professional Fees.
that if this information is not current,is incomplete or inaccurate,or if conditions 7.4 CLIENT agrees that it will not bring any claims for liability or for injury or loss
are discovered that could not be foreseen by a reasonable person,the Scope of allegedly arising from procedures associated with exploration,sampling or testing
Services may change,even while the Services are in progress. activities, or discovery of Hazardous Materials, or suspected Hazardous
3.0 STANDARD OF CARE Materials, or ECS' findings, conclusions, opinions, recommendations, plans,
and/or specifications related to discovery of contamination.
3.1 ECS shall strive to perform its professional Services in a manner consistent with
that level of skill and care ordinarily exercised by competent members of the 8.0 UNDERGROUND UTILITIES
same profession providing similar Services in the same region, under similar 8.1 In addition to CLIENT-furnished information regarding underground utilities,ECS
conditions during the same time period. No other representation,expressed or shall take reasonable and locally customary precautions, possibly including
implied, and no warranty or guarantee is included or intended in this contacting local public and/or private utility locating services,and/or conducting
AGREEMENT,or in any ECS report,opinion,plan or other Document of Service, research of publicly available information, to identify underground utilities, as
in connection with ECS'Services. deemed appropriate in ECS' professional opinion. The extent of such
3.2 CLIENT understands and agrees that ECS'professional judgment must rely on precautions shall be at ECS'sole discretion.
the facts learned during performance of the Scope of Services. CLIENT 8.2 CLIENT recognizes that despite due care, ECS may be unable to identify the
acknowledges that such data collection is limited to the immediate area that is locations of all subsurface utility lines and man-made features, and that
sampled,tested and/or observed. Consequently,CLIENT agrees that it shall not information obtained by ECS and/or ECS'subcontractor(s)or provided to ECS
bring a claim, based upon facts subsequently learned, regarding conditions from any entity may contain errors or be incomplete.
between sampling/testing points,in areas not evaluated by ECS,or which were
not part of the immediate area(s)explicitly evaluated by ECS. 8.3 CLIENT agrees that ECS shall not be liable for damage or injury,consequential
economic damages, and/ penalties resulting from damage to subterranean
3.3 ECS'professional Services shall be provided in a manner consistent with sound structures(pipes,tanks,cables,or other utilities,etc.)which are not called to
engineering and professional practices. If a situation arises that causes ECS to ECS'attention in writing and correctly shown on the diagram(s)furnished by
believe compliance with CLIENT'S wishes could result in ECS violating CLIENT or CLIENT'S consultants, or for underground features not marked, or
applicable Laws or Regulations,or will expose ECS to claims or other charges, improperly located by governmental or quasi-governmental locators, utility
ECS shall so advise CLIENT. If CLIENT'S actions or inaction result in a violation owners,or private utility locating services.
of applicable Laws or Regulations, ECS shall have the right to terminate its
Services in accordance with the TERMINATION provisions of this AGREEMENT. 9.0 SAMPLES
3.4 If CLIENT decides to disregard ECS'recommendations with respect to complying 9.1 Soil, rock, water, building materials and/or other samples and sampling by-
with applicable Laws or Regulations,ECS shall determine if ECS is required to products obtained from the Site are the property of CLIENT. ECS will store
notify the appropriate public officials. CLIENT agrees that such determinations samples not consumed in laboratory testing for up to sixty(60)calendar days
are ECS'sole right to make. CLIENT also agrees that ECS shall not bear liability after the issuance of any document containing data obtained from those
for failing to report conditions that are CLIENT'S responsibility to report. samples, unless other arrangements are mutually agreed upon in writing.
Samples consumed by laboratory testing procedures will not be stored as
4.0 CLIENT DISCLOSURES outlined above.
4.1 CLIENT shall furnish and/or shall direct CLIENT'S consultant(s)or agent(s)to 9.2 Unless CLIENT directs otherwise, CLIENT authorizes ECS to dispose of
furnish ECS information identifying the type and location of utility lines and other CLIENT'S non-hazardous samples and sampling or testing process byproducts
man-made objects known, suspected,or assumed beneath the Site's surface, in accordance with applicable Laws.
where the Scope of Services requires ECS to penetrate the Site surface.
4.2 CLIENT shall notify ECS of any known, assumed, or suspected regulated, 10.0 ENVIRONMENTAL RISKS
contaminated,or Hazardous Materials that may exist at the Site prior to ECS 10.1 All substances on,in,or under CLIENT'S Site,or obtained from CLIENT'S Site
mobilizing to the Site. Such Hazardous Materials shall include but not be limited as samples or as byproducts of the sampling process, are and will remain
to any substance which poses or may pose a present or potential hazard to CLIENT'S property.
human health or the environment whether contained in a product,material,by- 10.2 When Hazardous Materials are known,assumed,or suspected to exist at the
product,waste,or sample,and whether it exists in a solid,liquid,semi-solid or Site,ECS shall take appropriate precautions deemed prudent in ECS'sole and
gaseous form["Hazardous Materials"). professional opinion to comply with applicable Laws and Regulations, and to
4.3 If any Hazardous Materials are discovered,or are reasonably suspected by ECS reduce the risks to ECS'employees,public health,safety,and welfare,and the
after its Services are initiated,a Changed Condition shall exist. environment. CLIENT agrees to compensate ECS for such precautions.
5.0 INFORMATION PROVIDED BY OTHERS 10.3 When Hazardous Materials are known, assumed, or suspected to exist at the
Site, ECS will handle such materials as Hazardous Materials. ECS or ECS'
5.1 CLIENT waives any claim of liability against ECS regarding any claim for injury or subcontractors will containerize and label such Materials in accordance with
loss allegedly arising from errors,omissions,or inaccuracies in documents and applicable Law,and will leave the containers on Site. CLIENT is responsible for
other information in any form provided to ECS,including such information that the retrieval and lawful removal, transport and disposal of such contaminated
becomes incorporated into ECS Documents of Service. samples,and sampling process byproducts.
6.0 CONCEALED RISKS 10.4 Unless explicitly stated in ECS'Scope of Services,ECS shall not subcontract nor
6.1 CLIENT acknowledges that special risks are associated with the identification of arrange for the transport, disposal, or treatment of Hazardous Materials. At
concealed conditions[i.e.,subsurface conditions,conditions behind a wall,etc., CLIENT'S request, ECS may assist CLIENT in identifying appropriate
that are hidden from view,are not readily apparent,or cannot be accessed for alternatives for transport, off-site treatment, storage, or disposal of such
sampling/testing]. substances, but CLIENT, not ECS, shall make final selection of methods and
firms to provide such services. CLIENT shall sign all manifests for the disposal
6.2 Conditions that ECS infers to exist between sampling/testing points may differ of substances affected by Hazardous Materials contaminants and shall otherwise
significantly from the conditions that exist at the sampling/testing points. Since exercise prudence in arranging for lawful disposal.
some conditions can change substantially over time,the CLIENT recognizes that, 10.5 In those instances where ECS is expressly retained by CLIENT to assist CLIENT
because of natural occurrences or human intervention at or near the Site,actual in the disposal of Hazardous Materials,samples,or wastes,ECS shall do so only
conditions discovered through sampling/testing may be subject to rapid or as CLIENT'S agent(notwithstanding any other provision of this AGREEMENT to
gradual change. the contrary)so that ECS shall not assume the role of, nor be considered a
6.3 ECS will make reasonable efforts to anticipate and identify potential concealed generator,starer,transporter,or disposer of Hazardous Materials.
conditions for exploration,sampling or testing. However,CLIENT understands 10.6 Subsurface sampling may result in unavoidable cross-contamination of certain
that such risks cannot be eliminated and agrees that the Scope of Services is subsurface areas,as when a probe or excavation/boring device moves through a
that which CLIENT agrees suits CLIENT'S own risk tolerances. CLIENT may contaminated zone and links it to an aquifer, underground stream, or other
request ECS to evaluate the risks and provide a higher level of exploration to hydrous body not previously contaminated,or connects an uncontaminated zone
reduce such risks,if desired or appropriate. with a contaminated zone. Because sampling is an essential element of ECS'
Services indicated herein, CLIENT agrees this risk cannot be eliminated.
ECS Proposal No: Page 1 of 3 Ver.03-03-06
CLIENT will not hold ECS liable for such cross-contamination if ECS provides its 15.0 BILLINGS AND PAYMENTS
Services in accordance with the applicable Standard of Care. 15.1 Billings will be based on the unit rates, travel costs, and other reimbursable
10.7 CLIENT understands that a Phase I Environmental Site Assessment(ESA) is expenses stated in the Professional Fees. Any Estimate of Professional Fees
conducted solely to permit ECS to render a professional opinion about the stated in this AGREEMENT shall not be considered as a not-to-exceed or lump
likelihood of the site having a Recognized Environmental Condition on, in, sum amount unless otherwise explicitly stated in this AGREEMENT.
beneath,or near the Site at the time the Services are conducted. No matter how 15.2 Should ECS identify a Changed Condition,ECS shall notify the CLIENT of the
thorough a Phase I ESA study may be,findings derived from its conduct are Changed Condition(s)that in ECS'professional judgment require an amendment
highly limited and ECS cannot know or state for an absolute fact that the Site is of the Professional Fees,time schedule,and/or Scope of Services. ECS and
unaffected by one or more Recognized Environmental Conditions. Given the CLIENT shall promptly and in good faith negotiate an amendment to this
foregoing,CLIENT'S acceptance of this AGREEMENT shall signify that CLIENT AGREEMENT.
understands the limitations associated with Phase I ESAs.
15.3 CLIENT recognizes that time is of the essence with respect of payment of ECS'
11.0 OWNERSHIP OF DOCUMENTS invoices,and that timely payment is a material part of the consideration of this
11.1 With the exception of the copies of the ECS Documents of Service provided to AGREEMENT. Payment shall be in U.S.funds drawn upon U.S.banks and in
the CLIENT,all documents,technical reports,letters,photos,boring logs,field accordance with the rates and charges set forth in the Professional Fees.
data,field notes,laboratory test data,calculations,designs,plans,specifications, Invoices shall be due and payable upon receipt.
reports, or similar documents and estimates of any kind furnished by ECS 15.41f CLIENT disputes all or part of an invoice, CLIENT shall provide ECS with
["Documents of Service"]maintained in any form deemed appropriate by ECS, written notice stating in detail the facts of the dispute within twenty-one (21)
are and remain,the property of ECS. calendar days of the invoice date and agrees to pay the undisputed amount of
11.2 Any exploration,reconnaissance,data review,observations,testing,surveys or such invoice promptly.
similar Services,analyses and recommendations associated with the Services 15.5 ECS reserves the right to charge CLIENT an additional charge of one-and-one-
shall be provided by ECS(including subcontracted Services)for the CLIENT'S half(1.5)percent(or the maximum percentage allowed by Law,whichever is
sole use. CLIENT understands and agrees that any use of the Documents of lower)of the invoiced amount per month for any payment received by ECS more
Service by anyone other than the CLIENT is not permitted. than thirty(30)calendar days from the date of the invoice,excepting any portion
11.3 CLIENT agrees to not use ECS'Documents of Service for any other projects,or of the invoiced amount in dispute and resolved in favor of CLIENT. Payment Will
for the Project which has changed in scope,or extensions of the Project,from the first be applied to accrued interest and then to the unpaid principal amount.
details contemplated in ECS'Documents of Service. Any reuse without ECS' Payment of invoices shall not be subject to unilateral discounting or set-offs by
written consent shall be at CLIENT'S sole risk and without liability to ECS or to CLIENT.
ECS'subcontractor(s). 15.6 CLIENT agrees that its obligation to pay for the Services is not contingent upon
11.4 CLIENT agrees that ECS' Documents of Service may not under any CLIENT'S ability to obtain financing, zoning, approval of governmental or
circumstances be altered by any party except ECS. CLIENT warrants that ECS' regulatory agencies,permits,final adjudication of a lawsuit in which ECS is not
Documents of Service shall be used only and exactly as submitted by ECS. involved,upon CLIENT'S successful completion of the Project,settlement of a
real estate transaction, receipt of payment from CLIENT'S client, or any other
11.5 Except for daily field reports and concrete test reports sent electronically by ECS event. Retainage shall not be withheld from any payment, nor shall any
to CLIENT and CLIENT'S designees,the following shall apply to all electronic deduction be made from any invoice on account of penalty,liquidated damages,
files: Files in electronic media format of text,data,graphics,or other types that or other sums incurred by CLIENT. It is agreed that all costs and legal fees
are furnished by ECS are furnished only for convenience, not reliance by the including actual attorney's fees,and expenses incurred by ECS in enforcing any
receiving party. Any conclusion or information obtained or derived from such provision of the AGREEMENT,in perfecting or obtaining a lien,recovery under a
electronic files will be at the user's sole risk. If there is a discrepancy between bond,collecting any delinquent amounts due,or executing judgments,shall be
the electronic files and the hard copies,the hard copies shall govern. reimbursed by CLIENT.
12.0 SAFETY 15.7 Payment of any invoice by the CLIENT shall be taken to mean that the CLIENT
12.1 CLIENT agrees that ECS is responsible solely for the basic safety of ECS' agrees to the provisions of the AGREEMENT and is satisfied with ECS'Services
employees on the Project Site. These responsibilities shall not be inferred by and is not aware of any defects in those Services,unless CLIENT has provided
any party to mean that ECS has responsibility for any portion of site safety for notice to ECS in accordance with the DEFECTS IN SERVICE provisions of this
any reason. Unless otherwise expressly agreed to in writing, ECS' Scope of AGREEMENT.
Services excludes responsibility for any aspect of site safety other than for ECS' 16.0 DEFECTS IN SERVICE
own employees,and nothing herein shall be construed to relieve CLIENT and/or
its other contractors,consultants,or other parties from their responsibility for the 16.1 CLIENT and CLIENT'S personnel and contractors shall promptly inform ECS of
safety of their own employees. For active construction sites, CLIENT also any actual or suspected defects in ECS' Services, to help ECS take those
agrees that the General Contractor is solely responsible for Project Site safety, prompt,effective measures that in ECS'opinion will help reduce or eliminate the
and that ECS personnel rely on the safety measures provided by the General consequences of any such defect. Corrections of defects attributable to ECS'
Contractor. Services shall be provided at no cost to CLIENT,except in the case that the
deficiency is directly attributable to CLIENT-fumished information,CLIENT shall
12.2 In the event ECS expressly assumes health and safety responsibilities for toxic compensate ECS for the costs of correcting such defects.
or other concerns specified,the acceptance of such responsibility does not and 16.2 Modifications to reports, documents and plans required as a result of
shall not be deemed an acceptance of responsibility for any other health and
safety requirements, such as those relating to excavating,trenching,shoring, jurisdictional reviews or CLIENT requests shall not be considered to be defects in
drilling,backfilling,blasting,or other construction activities. Services. CLIENT shall compensate ECS for Additional Services required as a
result of jurisdictional review requirements.
13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES 17,0 INSURANCE
13.1 CLIENT understands that construction testing and observation Services are
conducted to reduce,not eliminate,the risk of problems arising during or after 17.1 ECS represents that it and its subcontractors and subconsultants are protected
construction or remediation,and that provision of such Services does not create by Workers Compensation insurance, and that ECS is covered by general
a warranty or guarantee of any type. liability,automobile and professional liability insurance policies which it deems
13.2 Monitoring and/or testing Services provided by ECS shall not in any way relieve reasonable and adequate.
the CLIENTS contractor(s) from their responsibilities and obligations for the 17.2 ECS shall furnish certificates of insurance upon request. The CLIENT is
quality or completeness of construction,nor for complying with applicable Laws responsible for requesting specific inclusions or limits of coverage that are not
and codes. present in ECS insurance,the cost of such inclusions or coverage increases,if
13.3 The professional activities of ECS, or the presence of ECS employees and available,will be at the expense of the CLIENT.
subcontractors,shall not be construed to imply ECS has any responsibility for the 18.0 LIMITATION OF LIABILITY
means, methods, techniques, sequencing Of construction, or procedures Of 18.1 CLIENT AGREES TO ALLOCATE CERTAIN OF THE RISKS ASSOCIATED WITH THE PROJECT
construction selected, for safety precautions and programs incidental to the BY LIMITING ECS'TOTAL LIABILITY To CLIENT, SUBJECT TO AVAILABLE INSURANCE
Contractor's Work. Furthermore, ECS does not and shall not have or accept PROCEEDS,ARISING FROM ECS'PROFESSIONAL ACTS,ERRORS,OR OMISSIONS AND FOR
authority to supervise,direct,control,or stop Contractor's Work. ANY AND ALL CAUSES INCLUDING NEGLIGENCE,STRICT LIABILITY,BREACH OF CONTRACT,
13.4 ECS strongly recommends that CLIENT retain ECS to provide its Services on a OR BREACH OF WARRANTY,INJURIES,DAMAGES,CLAIMS,LOSSES,EXPENSES,OR CLAIM
full time basis to lower the risk of defective or incomplete Work being installed by EXPENSES(INCLUDING REASONABLE ATTORNEY'S FEES) UNDER THIS AGREEMENT TO
CLIENT'S contractor(s). If CLIENT elects to retain ECS on a part time basis for THE FULLEST EXTENT PERMITTED BY LAW,AS FOLLOWS. For projects where ECS'Fee
any aspect of construction monitoring and/or testing, CLIENT accepts the Estimate or proposed fees are:
increased risks that a significantly lower level of construction quality may occur 18,1,1 $10,000 or less,ECS'total aggregate liability to CLIENT shall not exceed
and that such defects may not be undetected by ECS'part time observations. $5,000,or the total fee for the services rendered,whichever is greater.
Therefore CLIENT waives any and all claims against ECS related to
unsatisfactory quality or performance of elements observed or tested by ECS on 18.1.2 In excess of$10,000, ECS' total aggregate liability to CLIENT shall not
a part time basis. exceed $50,000, or the total fee for the services rendered, whichever is
greater.
14.0 CERTIFICATIONS 18.2 CLIENT agrees that ECS shall not be responsible for bodily injury and property
14.1 CLIENT may request,or governing jurisdictions may require,ECS to provide a damage or losses arising directly or indirectly,in whole or in part,from acts or
"certification"regarding Services provided by ECS. Any"Certification"required of omissions by the CLIENT, its employees, agents, staff, consultants or
ECS by the CLIENT,or jurisdiction(s)having authority over some or all aspects subcontractors or by any other person or combination of persons to the extent
of the Project,shall consist of ECS'inferences and professional opinions based such injury, damage, or loss is caused by acts or omissions of CLIENT, its
on limited sampling,observations,tests,and/or analyses performed by ECS at employees,agents,staff,consultants or subcontractors.
discrete locations and times. ECS' "certification" shall consist of ECS'
professional opinion of a condition's existence,but ECS does not guarantee that 19.0 INDEMNIFICATION
such condition exists, nor does it relieve other parties of responsibilities or 19.1 ECS agrees,subject to the limitation of liability provisions of this AGREEMENT,
obligations such parties have. CLIENT agrees not to make resolution of any to hold harmless and indemnify CLIENT from and against damages arising from
dispute with ECS or payment of any amount due to ECS in any way contingent ECS'negligent performance of its Services to the extent that such injury is found
upon ECS signing any such"certification"documents.
ECS Proposal No: Page 2 of 3 Ver.03-03-06
to be caused by ECS'negligent acts,errors or omissions,specifically excluding contracting with the CLIENT is located. CLIENT waives the right to remove any
any damages caused by any third party or by the CLIENT. litigation action to any other jurisdiction, unless mutually agreed to by both
19.2 To the fullest extent permitted by applicable Law,CLIENT agrees to indemnify, parties.
defend, and hold ECS harmless from and against any and all liability,claims, 23.4 This AGREEMENT including all matters related to performance and remediation
damages, demands, fines, penalties, costs and expenditures (including shall be interpreted according to the substantive Laws of the state of Virginia(but
reasonable attorneys' fees and costs of litigation defense and/or settlement) not including its choice of law rules).
["Damages"]caused in whole or in part by the negligent acts,errors,or omissions
of the CLIENT and CLIENT'S employees, agents, staff, contractors, 24.0 CURING A BREACH
subcontractors,consultants,and clients,provided such Damages are attributable 24.1 A party that believes the other has materially breached this AGREEMENT shall
to: (a)the bodily injury, personal injury,sickness,disease and/or death of any issue a written termination notice to the other, identifying the cause for
person;(b)injury to or loss of value to tangible personal property;or(c)a breach termination within five(5)business days of identifying such cause. Both parties
of this AGREEMENT,except to the extent such Damage is caused by the sole shall then bargain promptly and in good faith to cure such cause. If an
negligence or willful misconduct of ECS. acceptable cure can be achieved within fourteen (14)calendar days from the
19.3 It is specifically understood and agreed that in no case shall ECS be required to date of the termination notice,the parties shall commit their understandings to
pay an amount of Damages disproportional to ECS'culpability,or any share of writing and termination shall not occur.
any amount levied to recognize more than actual economic damages,subiect to 24.2 Either party may waive any right provided by this AGREEMENT in curing an
any limitations of liability and INDEMNIFICATION provisions contained in this actual or alleged breach;however,such waiver shall not affect future application
AGREEMENT. of such provision or any other provision.
19.41F CLIENT IS A HOMEOWNER, HOMEOWNERS' ASSOCIATION, CONDOMINIUM OWNER, 25.0 TERMINATION
CONDOMINIUM OWNER'S ASSOCIATION, OR SIMILAR RESIDENTIAL OWNER, ECS
RECOMMENDS THAT LEGAL COUNSEL BE RETAINED BY CLIENT BEFORE ENTERING INTO 25.1 CLIENT or ECS may terminate this AGREEMENT for breach of this
THIS AGREEMENT TO EXPLAIN CLIENT'S RIGHTS, AND THE LIMITATIONS, AND AGREEMENT, or for any other reasons which may arise. In the event of
RESTRICTIONS IMPOSED BY THIS AGREEMENT. CLIENT AGREES THAT FAILURE OF termination, the party effecting termination shall so notify the other party in
CLIENT TO RETAIN SUCH COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL COUNSEL writing,and termination shall become effective fourteen(14)calendar days after
AND SHALL NOT BE ALLOWED ON GROUNDS OF AVOIDING ANY PROVISION OF THIS receipt of the termination notice.
AGREEMENT. 25.2 Irrespective of which party shall effect termination,or the cause therefore,ECS
19.51f CLIENT is a residential builder or residential developer, CLIENT shall shall promptly render to CLIENT a final invoice and CLIENT shall immediately
indemnify,defend and hold harmless ECS against any and all claims or demands compensate ECS for Services rendered and costs incurred,in accordance with
due to injury or loss initiated by one or more homeowners,unit-owners,or their ECS' prevailing Fee Schedule and expense reimbursement policy. Services
homeowners' association, cooperative board, or similar entity against CLIENT shall include those rendered up to the time of termination, as well as those
which results in ECS being brought into the dispute. associated with termination itself, including without limitation, demobilizing,
modifying schedules,and reassigning personnel.
20.0 CONSEQUENTIAL DAMAGES
20.1 CLIENT shall not be liable to ECS and ECS shall not be liable to CLIENT for any 26.0 TIME BAR TO LEGAL ACTION
consequential damages incurred by either due to the fault of the other, 26.1 Unless prohibited by Law, and notwithstanding any Statute that may provide
regardless of the nature of the fault,or wherever committed by the CLIENT or additional protection,CLIENT and ECS agree that claims by either party arising
ECS, their employees, consultants, agents, contractors or subcontractors, or out of this AGREEMENT or the Services provided hereunder shall not be initiated
whether such liability arises in breach of contract or warranty, tort (including more than two(2)years from the time the party knew,or should have known,of
negligence), Statute, or any other cause of action. Consequential damages the condition giving rise to its claim, and shall under no circumstances be
include,but are not limited to,loss of use and loss of profit. initiated more than three (3)years from the date of substantial completion of
20.2 ECS shall not be liable to CLIENT,or any entity engaged directly or indirectly by ECS'Services.
CLIENT,for any liquidated damages due to any fault,or failure to act,in part or in 27.0 ASSIGNMENT
total by ECS,its employees,agents,or subcontractors. 27.1 Except for Services normally or customarily subcontracted by ECS in the
21.0 SOURCES OF RECOVERY performance of its Services including, but not limited to surveyors,specialized
21.1 All claims for damages related to the Services provided under this AGREEMENT consultants, drilling and excavating subcontractors, and testing laboratories,
shall be made against the ECS entity contracting with the CLIENT for the neither the CLIENT nor ECS may delegate,assign,sublet or transfer its duties,
responsibilities or interests in this AGREEMENT without the written consent of
Services,and no other person or entity. CLIENT agrees that it shall not name the other party.
any affiliated entity including parent,peer,or subsidiary entity or any individual
officer, director, or employee of ECS, unless such claims are based on acts 28.0 SEVERABILITY
unrelated to the provision of Services under this AGREEMENT. 28.1 Any provision of this AGREEMENT later held to violate a Law, Statute, or
21.2 CLIENT agrees that it will not seek Damages from any individual associated with Regulation,shall be deemed void,and all remaining provisions shall continue in
ECS as an officer,principal,partner,employee,or owner,from any and all claims full force and effect. CLIENT and ECS shall endeavor to quickly replace a voided
or liability for injury or loss that would require such individual to relinquish provision with a valid substitute that expresses the intent of, or at least
personal assets to satisfy such claim. addresses,the issues covered by the original provision.
22.0 THIRD PARTY CLAIMS EXCLUSION 29.0 TITLES
22.1 This AGREEMENT shall not create any rights or benefits to parties other than 29.1 The titles used in this AGREEMENT are for general reference only and are not
CLIENT and ECS. No third-party shall have the right to rely on ECS'opinions part of the AGREEMENT.
rendered in connection with ECS' Services without both CLIENT'S and ECS'
written consent and the third-party's agreement to be bound to the same terms 30.0 SURVIVAL
and conditions contained in this AGREEMENT as CLIENT, and third-party's 30.1 All obligations arising prior to the termination of this AGREEMENT and all
agreement that ECS'Scope of Services performed is adequate. provisions of this AGREEMENT allocating responsibility or liability between the
23.0 DISPUTE RESOLUTION CLIENT and ECS shall survive the substantial completion of Services and the
termination of this AGREEMENT.
23.1 All claims,disputes or controversies["Disputes"]arising out of,or in relation to
the interpretation, application or enforcement of this AGREEMENT shall be 31.0 ENTIRE AGREEMENT
decided as follows: 31.1 This AGREEMENT including the Scope of Services and Professional Fees and
23.1.1 CLIENT and ECS agree to attend a dispute resolution meeting within all exhibits, appendixes, and other documents appended to it, constitute the
fourteen(14)days of identification of a Dispute by either party. CLIENT and entire AGREEMENT between CLIENT and ECS. CLIENT acknowledges that all
ECS agree to negotiate in good faith to resolve the Dispute. prior understandings and negotiations are superseded by this AGREEMENT.
CLIENT acknowledges acceptance of these terms by submitting a CLIENT Work
23.1.2 Should negotiation fail to resolve the dispute,CLIENT and ECS agree to Authorization to ECS.
mediate their dispute via a mediator selected by either party, and
acceptable to both parties. 31.2 CLIENT and ECS agree that subsequent modifications to this AGREEMENT
shall not be binding unless made in writing and signed by authorized
23.1.3 Should mediation fail to result in resolution of the Dispute,CLIENT and ECS representatives of both parties.
agree that litigation may be brought by either party.
31.3 All preprinted Terms and Conditions on CLIENT'S purchase order or Work
23.2 Should third-party dispute resolution be required,through mediation or litigation, Authorization, or other service acknowledgement forms, are inapplicable and
the non-prevailing party shall reimburse the prevailing party for the prevailing superseded by this AGREEMENT.
party's documented legal costs, in addition to whatever other judgments or
settlement sums may be due. Such legal costs include,but are not be limited to, 31.4 If CLIENT fails to provide ECS with a signed copy of this AGREEMENT or a
reasonable attorney's fees,court costs,forensic consultants and expert witness Work Authorization,by the act of authorizing and accepting the services of ECS,
fees,and other documented expenses. CLIENT agrees to be fully bound by the terms of this AGREEMENT as if signed
23.3 Where legal action is brought by either party to resolve a dispute,the claim shall by CLIENT.
be brought and tried in the judicial jurisdiction of the county in which ECS'office
<END OF TERMS AND CONDITIONS OF SERVICE>
ECS Proposal No: Page 3 of 3 Ver.03-03-06