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HomeMy WebLinkAbout2018-011-E AMS - ECS Southeast Phase1 Environmental Site Assessment for new OC JailDocuSign Envelope ID: 03429E5D- 85E8 -4B59- 8796- 5E3D42360742 [Departmental Use Only] TITLE OC Jail FY 2017/18 NORTH CAROLINA CONSULTING SERVICES AGREEMENT UNDER $90,000 ORANGE COUNTY This Agreement, made and entered into this 8th day of January, 2018, ( "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 Southeast, LLP, (hereinafter, the "Consultant "). That the County and Consultant, for the consideration herein named, do hereby agree as follows: ARTICLE 1 SCOPE OF WORK 1.1 Scope of Work 1.1.1 This Services Agreement ( "Agreement ") is for professional consulting services to be rendered by Consultant to County with respect to (insert type of project)Perform a Phase I Environmental Site Assessment (ESA) for the Orange County Jail per ECS Proposal No. 49:7833 dated December 11, 2017 1.1.2 By executing this Agreement, the Consultant represents and agrees that Consultant 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. 1.1.3 Time is of the essence with respect to this Agreement. 1.1.4 The services to be performed under this Agreement consist of Basic Services, as described and designated in Article 3 hereof. Compensation to the Consultant for Basic Services under this Agreement shall be as set forth herein. ARTICLE 2 RESPONSIBILITIES OF THE CONSULTANT 2.1 Services to be Provided. The Consultant shall provide the County with all services required in Article 3 to satisfactorily complete the Project within the time limitations set forth herein and in accordance with the highest professional standards. 2.2. Standard of Care 2.2.1 The Consultant shall exercise reasonable care and diligence in performing services under this Agreement in accordance with the highest generally accepted standards of this type of Consultant practice throughout the United States and in accordance with applicable federal, state and local laws and regulations applicable to the performance of these services. Consultant is Revised 10/17 DocuSign Envelope ID: 03429E5D- 85E8 -4B59- 8796- 5E3D42360742 solely responsible for the professional quality, accuracy and timely completion and submission of all reports, drawings, specifications, plans, documents and services (hereinafter "Deliverables ") related to the Basic Services. 2.2.2 The Consultant shall be responsible for all errors or omissions, in the deliverables prepared by the Consultant. 2.2.3 The Consultant shall correct at no additional cost to the County any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts in any Deliverables prepared by the Consultant. 2.2.4 The Consultant shall assure that all Deliverables prepared by it hereunder are in accordance with applicable laws, statutes, and that any necessary or appropriate applications for approvals are submitted to federal, state and local governments or agencies in a timely manner so as not to delay the Project. 2.2.5 The Consultant 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. 2.2.6 Any and all employees of the Consultant engaged by the Consultant in the performance of any work or services required of the Consultant under this Agreement, shall be considered employees or agents of the Consultant 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 Consultant. 2.2.7 If activities related to the performance of this agreement require specific licenses, certifications, or related credentials Consultant 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. ARTICLE 3 BASIC SERVICES 3.1 Basic Services 3.1.1 The Consultant shall perform as Basic Services the work and services described herein and as described in Exhibit A (ECS Proposal No. 49:7833 dated December 11, 2017). ARTICLE 4 DURATION OF SERVICES 4.1 Scheduling of Services 4.1.1 The Consultant shall schedule and perform its activities in a timely manner. Revised 10/17 2 DocuSign Envelope ID: 03429E5D- 85E8 -4B59- 8796- 5E3D42360742 4.1.2 Should the County determine that the Consultant is behind the agreed upon schedule, it may require the Consultant 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. 4.1.3 The Commencement Date for the Consultant's Basic Services shall be January 8, 2018. ARTICLE 5 COMPENSATION 5.1 Compensation for Basic Services 5.1.1 Compensation for Basic Services shall include all compensation due the Consultant 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 is Two Thousand Dollars ($2,000.00). Payment for Basic Services shall become due and payable in direct proportion to satisfactory services performed and work accomplished. ARTICLE 6 RESPONSIBILITIES OF THE COUNTY 6.1 Cooperation and Coordination 6.1.1 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 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. 6.1.2 The County shall be solely responsible for determining whether Consultant as satisfactorily completed Tasks. It is agreed that County shall not unreasonably withhold its determination of satisfactory completion of any Task. In the event the amount of an invoice is disputed County may withhold payment until the dispute is resolved by the parties. County may also withhold payment on an invoice until the satisfactory completion of a Task by Consultant. ARTICLE 7 INSURANCE AND INDEMNITY 7.1 General Requirements Revised 10/17 3 DocuSign Envelope ID: 03429E5D- 85E8 -4B59- 8796- 5E3D42360742 7.2 Indemnity 7.2.1 The Consultant agrees, without limitation, to 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 property damage or bodily injury including death to any person or persons caused in whole or in part by the negligence or misconduct of the Consultant 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 Consultant to indemnify the County to the fullest extent permitted under North Carolina law. ARTICLE 8 AMENDMENTS TO THE AGREEMENT 8.1 Changes in Basic Services 8.1.1 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 Consultant. The Consultant shall proceed to perform the Services required by the Amendment only after receiving a fully executed Amendment from the County. ARTICLE 9 TERMINATION 9.1 Termination for Convenience of the County 9.1.1 This Agreement may be terminated without cause by the County and for its convenience upon seven (7) days prior written notice to the Consultant. 9.2 Other Termination 9.2.1 The Consultant 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 Consultant shall give the County seven (7) days' prior written notice of its intent to terminate this Agreement for cause. 9.3 Compensation After Termination 9.3.1 In the event of termination, the Consultant 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 Consultant. 9.3.2 Should this Agreement be terminated, the Consultant 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. 9.4 Waiver 9.4.1 The payment of any sums by the County under this Agreement or the failure of the County to require compliance by the Consultant with any provisions of this Agreement or the Revised 10/17 4 DocuSign Envelope ID: 03429E5D- 85E8 -4B59- 8796- 5E3D42360742 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. 9.5 Suspension 9.5.1 County may suspend the work at any time for County's convenience and without penalty to County upon three (3) days' notice to Consultant. Upon any suspension by County, Consultant shall discontinue the work and shall not resume the work until notified to proceed by County. ARTICLE 10 ADDITIONAL PROVISIONS 10.1 Relationship of Parties 10.1.1 Consultant is an independent contractor of the County. Neither Consultant nor any employee of the Consultant shall be deemed an officer, employee or agent of the County. Consultant's personnel shall not be employees of, or have any contractual relationship with, the County. 10.2 Limitation and Assignment 10.2.1 The County and the Consultant each bind themselves, their successors, assigns, and legal representatives to the terms of this Agreement. Neither the County nor the Consultant shall assign or transfer its interest in this Agreement without the written consent of the other. 10.3 Governing Law 10.3.1 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. Consultant shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all state and federal anti - discrimination laws, policies, rules, and regulations and the Orange County Non - Discrimination Policy and Orange County Living Wage Policy (each policy is incorporated herein by reference and may be viewed at http:ll .or �. oco�a�t�I�c. t�vldoca rtro �talp�arch air�q diviait�nlcontr ct .rhft Any violation of this requirement is a breach of this Agreement and County may immediately terminate this Agreement without further obligation on the part of the County. This paragraph is not intended to limit the definition of breach to discrimination. By executing this Agreement Consultant affirms that Consultant and any subcontractors of Consultant are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. Where applicable, failure to maintain compliance with the requirements of Article 2 of Chapter 64 of the General Statutes constitutes Consultant's breach of this Agreement. By executing this Agreement Consultant affirms Consultant is in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By executing this Agreement, Consultant certifies that Consultant has not been identified, and has not utilized the services of any agent or subcontractor, on the Iran divestment list created by the State Treasurer pursuant to G.S. 147- 86.58 and the Israel boycott list created pursuant to G.S. 147 - 86.81. 10.4 Dispute Resolution Revised 10/17 5 DocuSign Envelope ID: 03429E5D- 85E8 -4B59- 8796- 5E3D42360742 10.4.1 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 and 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. Under no circumstances shall any dispute be addressed through binding arbitration. 10.5 Extent of Agreement 10.5.1 This Agreement, together with the Request for Proposals together with attachments distributed by the County and the Consultant's submitted Proposal, all of which constitute the Contract Documents, represents the entire and integrated agreement between the County and the Consultant and supersedes all prior negotiations, representations or agreements, either written or oral. In the event of a conflict among the terms of the Contract Documents, the priority of documents shall be This Agreement, the County's Request for Proposals, attachments to the County's Request for Proposals, the Consultant's Proposal. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. 10.6 Severability 10.6.1 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. 10.7 Ownership of Deliverables 10.7.1 All Deliverables, together with all supporting materials, source documentation, data collected, field notes, and working drafts, developed in the performance of this Agreement shall become the property of the County and may be used on any other project without additional compensation to the Consultant. The use of the Deliverables 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. 10.8 Non - Appropriation 10.8.1 Consultant 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 Consultant 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, Revised 10/17 6 DocuSign Envelope ID: 03429E5D- 85E8 -4B59- 8796- 5E3D42360742 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 Consultant of such limitation or change in County's legal authority. 10.9 Notices and Signatures 10.9.1 This Agreement together with any amendments or modifications may be executed electronically. All electronic signatures affixed hereto evidence the consent of the Parties to utilize electronic signatures and the intent of the Parties to comply with Article I IA and Article 40 of North Carolina General Statute Chapter 66. 10.9.2 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 Attention: Jeff Thompson P.O. Box 8181 Hillsborough, NC 27278 [SIGNATURE PAGE TO FOLLOW] Revised 10/17 7 Consultant's Name & Address ECS Southeast, LLP 9001 Glenwood Avenue Raleigh, NC 27617 DocuSign Envelope ID: 03429E5D- 85E8 -4B59- 8796- 5E3D42360742 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. COUNTY: Orange County CEwt ' RAAVLit t. 1/5/2018 County Manager Revised 10/17 8 CONSULTANT: ECS Southeast, LLP J�111,-d n S. Wr, 12/29/2017 John S. Lair, P.G. Printed Name and Title DocuSign Envelope ID: 03429E5D- 85E8 -4B59- 8796- 5E3D42360742 ECS Southeast, LLP Proposal for Phase I Environmental Site Assessment 7M DMV Properties- Confidential 524 West Hill Avenue North, 520 Orange Heights, and 1010 US 70 West, Hillsborough, North Carolina For: Orange County Government 131 West Margaret Lane, Suite 300, Hillsborough, North Carolina ECS Proposal Number 49:7833 December 11, 2017 .J I f' DocuSign Envelope ID: 03429E5D- 85E8 -4B59- 8796- 5E3D42360742 El :'lli.:11'i•.l :'1�;i{[ "' ..., �Ii'•:ifr''Ii i::l ;i� Mr. Jeffrey E. Thompson Orange County Government 131 West Margaret Lane Suite 300 Hillsborough, North Carolina 27278 December 11, 2017 ECS Proposal No. 49:7833 Reference: Proposal for Phase I Environmental Site Assessment, DMV Properties- Confidential, 524 West Hill Avenue North, 520 Orange Heights, and 1010 US 70 West, Hillsborough, Orange County, North Carolina Dear Mr. Thompson: ECS Southeast, LLP (ECS) is pleased to provide you with this proposal for performing a Phase I Environmental Site Assessment (ESA) for the DMV Properties - Confidential. Our proposal contains a summary of relevant information as we understand it, a project schedule, and the estimated fees for completion of the proposed services. We understand the property is located at 524 West Hill Avenue North, 520 Orange Heights, and 1010 US 70 West in Hillsborough, Orange County, North Carolina. Based on the information available, a property description is noted within the attached proposal along with a description of our scope of services. We appreciate the opportunity to be of service to you on this project. If you have any questions or comments concerning this proposal, or would like adjustments to our proposed scope of services or schedule, please do not hesitate to contact us. ECS Southeast, LLP Shannon Zirpolo Environmental Technician szirpolo @ecslimited.com 919 - 861 -9831 Justin Roth Environmental Principal jroth @ecslimited.com 843 - 284 -7213 C;.. ;:--JF:It:; I'1 I C' - 0 -3 Ior:: a. I I C. [:[ I %- A-. ar-r I I I ( >', 1 %. 1 1 I i.: [.;[ .`- :;il � St. 111-' [.;[ 1ex s. I I P '.cCc;�ll7' I.e� I. CUi7' DocuSign ID: 03429 E5D- 85E8 -4 B59- 8796- 5E3D42360742 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Project Description We understand the subject property is located at 524 West Hill Avenue North, 520 Orange Heights, and 1010 US 70 West in Hillsborough, Orange County, North Carolina. According to the Orange County Online GIS website, the subject property is identified as Parcel Identification Number (PIN) 9864397758, 9864392344, and 9864398253 and consists of 20.72 acres. The first parcel is owned by Mary Copeland and the second two parcels are owned by Wayne and Beth Tilley. Based on the available information, the subject property is undeveloped. Scope of Services Based on our understanding of the subject property and plans for future activities, ECS has prepared the following Scope of Services. Phase I Environmental Site Assessment The Phase I Environmental Site Assessment (ESA) will be prepared in general accordance with ASTM Standard E1527 -13, Standard Practice for Phase I Environmental Site Assessments. We note that there may be some instances which require an adjustment to the quoted price for this Phase I ESA if supplemental investigation, additional lender requirements or other services, beyond the scope outlined in this proposal, are requested. We would notify you in advance if these additional services would result in increased fees. To expedite the preparation of the Phase I ESA, please provide ECS with the following: 1. Copies of updated site plans /plots which you may have available; 2. A point of contact for site access; 3. A current chain -of- ownership for the subject property (preferably dating back to 1940 or earlier); 4. The name and telephone number of the current owner so that ECS may conduct an interview; and, 5. The completed User Questionnaire which is attached. In accordance with the ASTM protocol, it is the obligation of the "User" (i.e., the parry relying on the report) to report to the environmental professional (i.e., ECS) any environmental liens encumbering the property or any 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 any previous environmental information related to the property. We have attached the User Questionnaire to assist the User and the environmental professional (ECS) in gathering information from the User that may be material to identifying recognized environmental conditions with respect to the site. As the User of the report, please complete the attached User Questionnaire and return it with the signed proposal. We request the User Questionnaire be completed and returned to ECS at the same time this proposal is authorized in Page 1 DocuSign order to avoid delay to delivering the final report. This User Questionnaire will be included in the Phase I ESA Report and will assist in satisfying the "User's Responsibilities" portion of the ASTM Standard. In addition, the ASTM standard also requires a search for the existence of environmental liens and activity and use limitations (AULs) in accordance with 40 CFR Part 312. If this information is not readily available, ECS can contract with a third party provider to conduct this search for an additional fee. It should be noted that failure to obtain this information may preclude your ability to qualify for certain liability protections under CERCLA. Please indicate on the attached authorization page if you would prefer ECS to obtain this information on your behalf for an additional fee of $250.00 per parcel. ECS will prepare one Phase I ESA Report for the subject property. A copy of the report will be forwarded electronically upon completion of the project. Out of Scope Items If, during the performance of our scope of services, additional environmental issues are identified that are beyond the Scope of Services outlined within this proposal, ECS may contact Orange County Government to discuss the relevance and significance of the finding in order to determine if the finding merits additional assessment, inclusion in our final report, or a modification to our Scope of Services and fee. Safety ECS personnel are responsible for their own personal safety. While on site, if ECS personnel deem a condition unsafe and the performance of our scope of services cannot be completed, you will be notified of the unsafe condition. ECS personnel will not proceed further with the scope of services in that area until the unsafe condition is corrected. Access delays associated with safety concerns may result in additional fees. Project Fees ECS will provide the proposed scope of services for the lump sum fee of $2,000.00, with the exception of additional services selected by the client. Our fee is based on the chain of title, third party AUL search and property owner /contact information being provided by you or your agents. Meetings Meetings requested by Orange County Government beyond the Scope of Services outlined above will be invoiced on a time and materials basis. Meetings after typical office hours (Monday through Friday 8 am to 5 pm) will be invoiced at 1.5 times the normal rate. Page 2 DocuSign Project Schedule We anticipate that the Phase I ESA can be completed within three weeks from authorization to proceed provided that site access is granted promptly. We will proceed with the accepted services upon receipt of written authorization. If this schedule does not meet your needs, please contact ECS to discuss an expedited deadline. If areas of the property cannot be observed due to inaccessibility or unsafe conditions beyond the control of ECS, ECS will wait until such time either that the area is accessible or the unsafe conditions are corrected. If ECS must make additional visits to the site, a change order will be provided for our additional fees. If other items are required because of unexpected field conditions encountered in our fieldwork, or because of a request for additional services, they would be invoiced as an agreed -to lump sum fee or in accordance with the ECS Fee Schedule (available upon request) in effect at the time of the service. Before expanding our scope of service that increased our fee, you would be informed of our intentions for both your review and authorization. Conclusions and recommendations pertaining to environmental conditions at the subject site are limited to the conditions observed and the materials sampled at the time this study will be undertaken. The assessment is not intended to represent an exhaustive research of every potential hazard or condition that may exist, nor does it claim to represent conditions or events that arise after the assessment. We have made the following assumptions in developing this proposal: Prices presented herein are valid for 120 days from the date of this proposal. One color electronic version (PDF format) of the report will be provided upon completion of the project. If requested, ECS can provide hard copies for $100 /report. Please note that ASTM standard indicates that regulatory agency files available for the subject site or adjoining properties should be reviewed and failure to do so may result in data gaps in our report. The lump sum fee offered for the Phase I ESA does not include expanded reviews of regulatory files for the subject site and /or adjacent properties which are not available electronically, or if the file information may not be reasonably ascertainable within the project schedule. If the site and /or adjacent properties are identified on federal or state regulatory lists, and if a file review is warranted, ECS will contact you. An additional fee may be necessary depending on the location and volume of information pertaining to these regulatory files. If requested, ECS can provide reliance letters for our reports for an additional fee of $250.00 per letter. Future reliance offered by ECS would be bound to the same contracted Terms & Conditions of Service agreed to between Orange County Government and ECS. Please complete the Proposal Acceptance page and return one copy to ECS to indicate acceptance of this proposal and to initiate work on the above - referenced project. The Client's signature indicates Page 3 EN DocuSign that he /she has the authority to bind the Client, that he /she has read or has had the opportunity to read the accompanying Terms and Conditions of Service and agrees to be bound by such Terms and Conditions of Service. Page 4 DocuSign ID: 03429 E5D- 85E8 -4 B59- 8796- 5E3D42360742 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PROPOSAL ACCEPTANCE Service Initial Phase I Environmental Site Assessment ($2,000.00) Optional Environmental Lien and AUL Search ($250.00 per parcel) PROPOSAL INFORMATION ECS Proposal Number 49:7833 Scope of Work Phase I Environmental Site Assessment Location 524 West Hill Avenue North, 520 Orange Heights, and 1010 US 70 West, Hillsborough, North Carolina CLIENT INFORMATION Signature - Authorized Representative for Entity Responsible for Payment Print or Type Name of Client and Company Date of Execution Proposal Addressee - Name Jeffrey E. Thompson Proposal Addressee - Company Orange County Government INVOICE INFORMATION Please Print or Type Below if Invoice Addressee Different Than Proposal Addressee or Special Invoicing Instructions Invoice Addressee - Name Invoice Addressee - Company Invoice Addressee - Street Address 1 Invoice Addressee - Street Address 2 Invoice Addressee - City, State, Zip Code Invoice Addressee - Email Invoice Addressee - Phone Number Purchase Order Number Client Project /Account Number Page 5 EN DocuSign Pay Application Required Attached to this proposal and an integral part of our proposal, are our "Terms and Conditions of Service ". These terms and conditions represent the current recommendations of the Association of Soil and Foundation Engineers, the Consulting Engineers' Council, and the Geotechnical Division of the American Society of Civil Engineers. Our insurance carrier requires that we have a signed contract prior to the release of any information. This letter is the agreement for our services. Your acceptance of this proposal should be indicated by signing and returning the enclosed Proposal Acceptance form to us. Page 6 EN ID: 03429 E5D- 85E8 -4 B59- 8796- 5E3D42360742 Terms and Conditions of Service The professional services (the "Services") to be provided by ECS Southeast, LLP [ "ECS"] pursuant to the Proposal shall be provided in accordance with these Terms and Conditions of Service ("Terms"), including any addenda as may be incorporated or referenced in writing shall form the Agreement between ECS and Orange County Government (Client). 1.0 INDEPENDENT CONSULTANT STATUS - ECS shall serve as an independent professional consultant to CLIENT for Service on the Project, identified above, and shall have control over, and responsibility for, the means and methods for providing the Services identified in the Proposal, including the retention of Subcontractors and 5ubconsultants. 2.0 SCOPE OF SERVICES - It is understood that the fees, reimbursable expenses and time schedule defined in the Proposal are based on information provided by CLIENT and /or CLIENT'S contractors and consultants. CLIENT acknowledges that if this information is not current, is incomplete or inaccurate, if conditions are discovered that could not be reasonably foreseen, or if CLIENT orders additional services, the scope of services will change, even while the Services are in progress. 3.0 STANDARD OF CARE 3.1 In fulfilling its obligations and responsibilities enumerated in the Proposal, ECS shall be expected to comply with and its performance evaluated in light of the standard of care expected of professionals in the industry performing similar services on projects of like size and complexity at that time in the region (the "Standard of Care'). Nothing contained in the Proposal, the agreed -upon scope of Services, these Terms and Conditions of Service or any ECS report, opinion, plan or other document prepared by ECS shall constitute a warranty or guaranty of any nature whatsoever. 3.2 CLIENT understands and agrees that ECSwill rely on the facts learned from data gathered during performance of Services as well as those facts provided by the CLIENT. CLIENT acknowledges that such data collection is limited to specific areas that are sampled, bored, tested, observed and /or evaluated. Consequently, CLIENT waives any and all claims based upon erroneous facts provided by the CLIENT, facts subsequently learned or regarding conditions in areas not specifically sampled, bored, tested, observed or evaluated by ECS. 3.3 If a situation arises that causes ECS to believe compliance with CLIENT'S directives 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 advise CLIENT. If ECS' professional judgment is rejected, ECS shall have the right to terminate its Services in accordance with the provisions of Section 25.0, below. 3.4 If CLIENT decides to disregard ECS' recommendations with respect to complying with applicable Laws or Regulations, ECS shall determine if applicable law requires ECS to notify the appropriate public officials. CLIENT agrees that such determinations are ECS! sole right to make. 4.0 CLIENT DISCLOSURES 4.1 Where the Scope of Services requires ECS to penetrate a Site surface, CLIENT shall furnish and/ or shall direct CLIENT'S consultant(s) or agent(s) to furnish ECS information identifying the type and location of utility lines and other man -made 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 accuracy without further investigation, analysis, or evaluation. 4.2 "Hazardous Materials" shall include but not be limited to any substance that poses or may pose a present or potential hazard to human health or the environment whether contained in a product, material, by- product, waste, or sample, and whether it exists in a solid, liquid, semi -solid or gaseous form. CLIENT shall notify ECS of any known, assumed, or suspected regulated, contaminated, or other similar Hazardous Materials that may exist at the Site prior to ECS mobilizing to the Site. 4.3 If any Hazardous Materials are discovered, or are reasonably suspected by ECS after its Services begin, ECS shall be entitled to amend the scope of Services and adjust its fees to reflect the additional work or personal protective equipment and /or safety precautions required by the existence of such Hazardous Materials. 5.0 INFORMATION PROVIDED BY OTHERS - CLIENT waives, releases and discharges ECS from and against any claim for damage, injury or loss allegedly arising out of or in connection with errors, omissions, or inaccuracies in documents and other information in any form provided to ECS by CLIENT or CLIENT's agents, contractors, or consultants, including such information that becomes incorporated into ECS documents. 6.0 CONCEALED RISKS - CLIENT acknowledges that special risks are inherent in sampling, testing and /or evaluating concealed conditions that are hidden from view and /or neither readably apparent nor easily accessible, e.g., subsurface conditions, conditions behind a wall, beneath a floor, or above a ceiling. Such circumstances require that certain assumptions be made regarding existing conditions, which may not be verifiable without expending additional sums of money or destroying otherwise adequate or serviceable portions of a building or component thereof. Accordingly, ECS shall not be responsible for the verification of such conditions unless verification can be made by simple visual observation. Client agrees to bear any and all costs, losses, damages and expenses (including, but not limited to, the cost of ECS' Additional Services) in any way arising from or in connection with the existence or discovery of such concealed or unknown conditions. 7.0 RIGHT OF ENTRY /DAMAGE RESULTING FROM SERVICES 7.1 CLIENT warrants that it possesses the authority to grant ECS right of entry to the Site for the performance of Services. CLIENT hereby grants ECS and its subcontractors and /or agents, the right to enter from time to time onto the property in order for ECS to perform its Services. CLIENT agrees to indemnity and hold ECS harmless from any claims arising from allegations that ECS trespassed or lacked authority to access the Site. 7.2 CLIENT warrants that it possesses all necessary permits, licenses and /or utility clearances for the Services to be provided by ECS except where ECS' Proposal explicitly states that ECS will obtain such permits, licenses, and /or utility clearances. 7.3 ECS will take reasonable precautions to limit damage to the Site and its improvements during the performance of its Services. CLIENT understands that the use of exploration, boring, sampling, or testing equipment may cause minor, but common, damage to the Site. The correction and restoration of such common damage is CLIENT'S responsibility unless specifically included in ECS' Proposal. Page 7 7.4 CLIENT agrees that it will not bring any claims for liability or for injury or loss against ECS arising from (1) procedures associated with the exploration, sampling or testing activities at the Site, (ii) discovery of Hazardous Materials or suspected Hazardous Materials, or (iii) ECS' findings, conclusions, opinions, recommendations, plans, and /or specifications related to discovery of contamination. 8.0 UNDERGROUND UTILITIES 8.1 ECS shall exercise the Standard of Care in evaluating client- furnished information as well as information readily and customarily available from public utility locating services (the "Underground Utility Information") in its effort to identify underground utilities. The extent of such evaluations shall be at ECS' sole discretion. 8.2 CLIENT recognizes that the Underground Utility Information provided to or obtained by ECS may contain errors or be incomplete. CLIENT understands that ECS may be unable to identify the locations of all subsurface utility lines and man -made features. 8.3 CLIENT waives, releases, and discharges ECS from and against any claim for damage, injury or loss allegedly arising from or related to subterranean structures (pipes, tanks, cables, or other utilities, etc.) which are not called to ECS' attention in writing by CLIENT, not correctly shown on the Underground Utility Information and /or not properly marked or located by the utility owners, governmental or quasi - governmental locators, or private utility locating services as a result of ECS' or ECS' subcontractor's request for utility marking services made in accordance with local industry standards. 9.0 SAMPLES 9.1 Soil, rock, water, building materials and /or other samples and sampling by- products obtained from the Site are and remain the property of CLIENT. Unless other arrangements are requested by CLIENT and mutually agreed upon by ECS in writing, ECS will retain samples not consumed in laboratory testing for up to sixty (60) calendar days after the issuance of any document containing data obtained from such samples. Samples consumed by laboratory testing procedures will not be stored. 9.2 Unless CLIENT directs otherwise, and excluding those issues covered in Section 10.0, CLIENT authorizes ECS to dispose of CLIENTS non - hazardous samples and sampling or testing process by- products in accordance with applicable laws and regulations. 10.0 ENVIRONMENTAL RISKS 10.1 When Hazardous Materials are known, assumed, suspected to exist, or discovered at the Site, ECS will endeavor to protect its employees and address public health, safety, and environmental issues in accordance with the Standard of Care. CLIENT agrees to compensate ECS for such efforts. 10.2 When Hazardous Materials are known, assumed, or suspected to exist, or discovered at the Site, ECS and /or ECS'subcontractorswill exercisethe Standard of Care in containerizing and labeling such Hazardous Materials in accordance with applicable laws and regulations, and will leave the containers on Site. CLIENT is responsible for the retrieval, removal, transport and disposal of such contaminated samples, and sampling process byproducts in accordance with applicable law and regulation. 10.3 Unless explicitly stated in the Scope of Services, ECS will neither subcontract for nor arrange for the transport, disposal, or treatment of Hazardous Materials. At CLIENT'S written request, ECS may assist CLIENT in identifying appropriate alternatives for transport, off -site treatment, storage, or disposal of such substances, 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 substances affected by contaminants and shall otherwise exercise prudence in arranging for lawful disposal. 10.4 In those instances where ECS is expressly retained by CLIENT to assist CLIENT in the disposal of Hazardous Materials, samples, or wastes as part of the Proposal, ECS shall do so only as CLIENT'S agent (notwithstanding any other provision of this AGREEMENT to the contrary). ECS will not assume the role of, nor be considered a generator, Storer, transporter, or disposer of Hazardous Materials. 10.5 Subsurface sampling may result in unavoidable cross - contamination of certain subsurface areas, as when a probe or excavation /boring device moves through a contaminated zone and links it to an aquifer, underground stream, pervious soil stratum, or other hydrous body not previously contaminated, or connects an uncontaminated zone with a contaminated zone. Because sampling is an essential element of the Services indicated herein, CLIENT agrees this risk cannot be eliminated. Provided such services were performed in accordance with the Standard of Care, CLIENT waives, releases and discharges ECS from and against any claim for damage, injury, or loss allegedly arising from or related to such cross - contamination. 10.6 CLIENT understands that a Phase I Environmental Site Assessment (ESA) is conducted solely to permit ECS to render a professional opinion about the likelihood of the site having a Recognized Environmental Condition on, in, beneath, or near 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 cannot know or state for an absolute fact that the Site is unaffected or adversely affected by one or more Recognized Environmental Conditions. CLIENT represents and warrants that it understands the limitations associated with Phase I ESAs. 11.0 OWNERSHIP OF DOCUMENTS 11.1 ECS shall be deemed the author and owner (or licensee) of all documents, technical reports, letters, photos, boring logs, field data, field notes, laboratory test data, calculations, designs, plans, specifications, reports, or similar documents and estimates of any kind furnished by it [the "Documents of Service"] and shall retain all common law, statutory and other reserved rights, including copyrights. CLIENT shall have a limited, non - exclusive license to use copies of the Documents of Service provided to it in connection with the Project for which the Documents of Service are provided until the completion of the Project. 11.2 ECS' Services are performed and Documents of Service are provided for the CLIENTS sole use. CLIENT understands and agrees that any use of the Documents of Service by anyone other than the CLIENT, it's licensed consultants and its contractors is not permitted. CLIENT further F C ID: 03429 E5D- 85E8 -4 B59- 8796- 5E3D42360742 Terms and Conditions of Service agrees to indemnify and hold ECS harmless for any errors, omissions or damage resulting from its 15.5 If CLIENT disputes all or part of an invoice, CLIENT shall provide ECS with written notice stating contractors' use of ECS' Documents of Service. in detail the facts of the dispute within fifteen (15) calendar days of the invoice. CLIENT agrees to 11.3 CLIENT agrees to not use ECS' Documents of Service for the Project if the Project is subsequently modified in scope, structure or purpose without ECS' prior written consent. Any reuse without ECS' written consent shall be at CLIENTS sole risk and without liability to ECS or to ECS' subcontractor(s). CLIENT agrees to indemnify and hold ECS harmless for any errors, omissions or damage resulting from its use of ECS' Documents of Service after any modification in scope, structure or purpose. 11.4 CLIENT agrees to not make any modification to the Documents of Service without the prior written authorization of ECS. To the fullest extent permitted by law, CLIENT agrees to indemnify, defend, and hold ECS harmless from any damage, loss, claim, liability or cost (including reasonable attorneys' fees and defense costs) arising out of or in connection with any unauthorized modification of the Documents of Service by CLIENT or any person or entity that acquires or obtains the Documents of Service from or through CLIENT. CLIENT represents and warrants that the Documents of Service shall be used only as submitted by ECS. 12.0 SAFETY 12.1 Unless expressly agreed to in writing in its Proposal, CLIENT agrees that ECS shall have no responsibility whatsoever for any aspect of site safety other than for its own employees. Nothing herein shall be construed to relieve CLIENT and /or its contractors, consultants or other parties from their responsibility for site safety. CLIENT also represents and warrants that the General Contractor is solely responsible for Project site safety and that ECS personnel may rely on the safety measures provided by the General Contractor. 12.2 In the event ECS assumes in writing limited responsibility for specified safety issues, the acceptance of such responsibilities does not and shall not be deemed an acceptance of responsibility for any other non - specified safety issues, including, but not limited to those relating to excavating, trenching, shoring, drilling, backflling, blasting, or other construction activities. 13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES 13.1 CLIENT understands that construction testing and observation services are provided in an effort to reduce, but cannot eliminate, the risk of problems arising during or after construction or remediation. CLIENT agrees that the provision of such Services does not create a warranty or guarantee ofanytype. 13.2 Monitoring and /or testing services provided by ECS shall not in any way relieve the CLIENTS contractor(s) from their responsibilities and obligations for the quality or completeness of construction as well as their obligation to comply with applicable laws, codes, and regulations. 13.3 ECS has no responsibility whatsoever for the means, methods, techniques, sequencing or procedures of construction selected, for safety precautions and programs incidental to work or services provided by any contractor or other consultant. ECS does not and shall not have or accept authority to supervise, direct, control, or stop the work of any contractor or consultant or any of their subcontractors or subconsultants. 13.4 ECS strongly recommends that CLIENT retain ECS to provide construction monitoring and testing services on a full time basis to lower the risk of defective or incomplete Work being installed by CLIENTS contractor(s). If CLIENT elects to 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 occur and that defective or incomplete work may result and not be detected by ECS' part time monitoring and testing. Unless the CLIENT can show that the error or omission is contained in ECS' reports, CLIENT waives, releases and discharges ECS from and against any other claims for errors, omissions, damages, injuries, or loss alleged to arise from defective or incomplete work that was monitored or tested by ECS on a part time basis. Except as set forth in the preceding sentence, CLIENT agrees to indemnify and hold ECS harmless from all damages, costs, and attorneys fees, for any claims alleging errors, omissions, damage, injury or loss allegedly resulting from Work that was monitored or tested by ECS on a part time basis. 14.0 CERTIFICATIONS - CLIENT may request, or governing jurisdictions may require, ECS to provide a "certification" regarding the Services provided by ECS. Any "certification" required of ECS by the CLIENT or jurisdiction(s) having authority over some or all aspects of the Project shall consist of ECS' inferences and professional opinions based on the limited sampling, observations, tests, and/ or analyses performed by ECS at discrete locations and times. Such "certifications" shall constitute ECS' professional opinion of a condition's existence, but ECS does not guarantee that such condition exists, nor does it relieve other parties of the responsibilities or obligations such parties have with respect to the possible existence of such a condition. CLIENT agrees it cannot make the resolution of any dispute with ECS or payment of any amount due to ECS contingent upon ECS signing any such "certification." 15.1 Billings will be based on the unit rates, plus travel costs, and other reimbursable expenses as stated in the Professional Fees section of the Proposal. Any Estimate of Professional Fees stated in these Terms shall not be considered as a not -to- exceed or lump sum amount unless otherwise explicitly stated. CLIENT understands and agrees that even if ECS agrees to a lump sum or not -to- exceed amount, that amount shall be limited to number of hours, visits, trips, tests, borings, or samples stated in the Proposal. 15.2 CLIENT agrees that all Professional Fees and other unit rates shall be adjusted annually to account for inflation based on the most recent 12 -month average of the Consumer Price Index (CPI -U) for all items as established bywww.bls.gov when the CPI -U exceeds an annual rate of 2.0 %. 15.3 Should ECS identify a Changed Condition(s), ECS shall notify the CLIENT of the Changed Condition(s). ECS and CLIENT shall promptly and in good faith negotiate an amendment to the Scope of Services, Professional Fees, and time schedule. 15.4 CLIENT recognizes that time is ofthe essence with respect to payment of ECS' invoices, and that timely payment is a material consideration for this agreement. All payment shall be in U.S. funds drawn upon U.S. banks and in accordance with the rates and charges set forth in the Professional Fees. Invoices are due and payable upon receipt. Page 8 pay the undisputed amount of such invoice promptly. 15.6 ECS reserves the right to charge CLIENT an additional charge of one - and - one -half (1.5) percent (or the maximum percentage allowed by Law, whichever is lower) of the invoiced amount per month for any payment received by ECS more than thirty (30) calendar days from the date of the invoice, excepting any portion of the invoiced amount in dispute. All payments will be applied to accrued interest first and then to the unpaid principal amount. Payment of invoices shall not be subject to unilateral discounting or set -offs by CLIENT. 15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon CLIENTS ability to obtain financing, zoning, approval of governmental or regulatory agencies, permits, final adjudication of a lawsuit, CLIENTS successful completion ofthe Project, settlement of a real estate transaction, receipt of payment from CLIENTS client, or any other event unrelated to ECS provision of Services. Retainage shall not be withheld from any payment, nor shall any deduction be made from any invoice on account of penalty, liquidated damages, or other sums incurred by CLIENT. It is agreed that all costs and legal fees including actual attorney's fees, and expenses incurred by ECS in obtaining payment under this Agreement, in perfecting or obtaining a lien, recovery under a bond, collecting any delinquent amounts due, or executing judgments, shall be reimbursed by CLIENT. 15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of these Terms, payment of any invoice by the CLIENT shall mean that the CLIENT is satisfied with ECS' Services and is not aware of any defects in those Services. 16.0 DEFECTS IN SERVICE 16.1 CLIENT, its personnel, its consultants, and its contractors shall promptly inform ECS 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' opinion will reduce or eliminate the consequences of any such defective Services. The correction of defects attributable to ECS' failure to perform in accordance with the Standard of Care shall be provided at no cost to CLIENT. However, ECS shall not be responsible for the correction of any deficiency attributable to CLIENT - furnished information, the errors, omissions, defective materials, or improper installation of materials by CLIENTS personnel, consultants or contractors, or work not observed by ECS. CLIENT shall compensate ECS for the costs of correcting such defects. 16.2 Modifications to reports, documents and plans required as a result of jurisdictional reviews or CLIENT requests shall not be considered to be defects. CLIENT shall compensate ECS for the provision of such Services. 17.0 INSURANCE - ECS represents that it and its subcontractors and subconsultants maintain Workers Compensation insurance, and that ECS is covered by general liability, automobile and professional liability insurance policies in coverage amounts it deems reasonable and adequate. ECS shall furnish certificates of insurance upon request. The CLIENT is responsible for requesting specific inclusions or limits of coverage that are not present in ECS insurance package. The cost of such inclusions or coverage increases, if available, will be at the expense ofthe CLIENT. 18.0 LIMITATION OF LIABILITY 18.1 CLIENT AGREES TO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING ECS' TOTAL LIABILITY TO CLIENT ARISING FROM ECS' PROFESSIONAL LIABILITY, I.E. PROFESSIONAL ACTS, ERRORS, OR OMISSIONS AND FOR ANY AND ALL CAUSES INCLUDING NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY, INJURIES, DAMAGES, CLAIMS, LOSSES, EXPENSES, OR CLAIM EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES) RELATING TO PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. THE ALLOCATION IS AS FOLLOWS. 18.1.1 If the proposed fees are $10,000 or less, ECS' total aggregate liability to CLIENT shall not exceed $20,000, or the total fee received for the services rendered, whichever is greater. 18.1.2 If the proposed fees are in excess of $10,000, ECS'total aggregate liability to CLIENT shall not exceed $40,000, or the total fee for the services rendered, whichever is greater. 18.2 CLIENT agrees that ECS shall not be responsible for any injury, loss or damage of any nature, including bodily injury and property damage, arising directly or indirectly, in whole or in part, from acts or omissions by the CLIENT, its employees, agents, staff, consultants, contractors, or subcontractors to the extent such injury, damage, or loss is caused by acts or omissions of CLIENT, its employees, agents, staff, consultants, contractors, subcontractors or person /entities for whom CLIENT is legally liable.18.3 CLIENT agrees that ECS' liability for all non - professional liability arising out of this agreement or the services provided as a result ofthe Proposal be limited to $500,000. 19.0 INDEMNIFICATION 19.1 Subject Section 18.0, ECS agrees to hold harmless and indemnify CLIENT from and against damages arising from ECS' negligent performance of its Services, but only to the extent that such damages are found to be caused by ECS' negligent acts, errors or omissions, (specifically excluding any damages caused by any third party or by the CLIENT.) 19.2 To the fullest extent permitted by Law, CLIENT agrees to indemnify, and hold ECS harmless from and against any and all liability, claims, damages, demands, fines, penalties, costs and expenditures (including reasonable attorneys' fees and costs of litigation defense and /or settlement) [ "Damages"] caused in whole or in part by the negligent acts, errors, or omissions ofthe CLIENT or CLIENTS employees, agents, staff, contractors, subcontractors, consultants, and clients, provided such Damages are attributable to: (a) the bodily injury, personal injury, sickness, disease and /or death of any person; (b) the injury to or loss of value to tangible personal property; or (c) a breach of these Terms. The foregoing indemnification shall not apply to the extent such Damage is found to be caused by the sole negligence, errors, omissions or willful misconduct of ECS. 19.3 It is specifically understood and agreed that in no case shall ECS be required to pay an amount of Damages disproportional to ECS' culpability. IF CLIENT IS A HOMEOWNER, HOMEOWNERS' ASSOCIATION, CONDOMINIUM OWNER, CONDOMINIUM OWNER'S ASSOCIATION, OR SIMILAR RESIDENTIAL OWNER, ECS RECOMMENDS THAT CLIENT RETAIN LEGAL COUNSEL BEFORE ENTERING INTO THIS AGREEMENT TO EXPLAIN CLIENTS RIGHTS AND OBLIGATIONS HEREUNDER, AND THE F C ID: 03429 E5D- 85E8 -4 B59- 8796- 5E3D42360742 Terms and Conditions of Service LIMITATIONS, AND RESTRICTIONS IMPOSED BY THIS AGREEMENT. CLIENT AGREES THAT FAILURE OF CLIENTTO RETAIN SUCH COUNSEL SHALL BE A KNOWING WAIVER OF LEGAL COUNSEL AND SHALL NOT BE ALLOWED ON GROUNDS OF AVOIDING ANY PROVISION OF THIS AGREEMENT. 19.4 IF CLIENT IS A RESIDENTIAL BUILDER OR RESIDENTIAL DEVELOPER, CLIENT SHALL INDEMNIFY AND HOLD HARMLESS ECS AGAINST ANY AND ALL CLAIMS OR DEMANDS DUE TO INJURY OR LOSS INITIATED BY ONE OR MORE HOMEOWNERS, UNIT - OWNERS, OR THEIR HOMEOWNER'S ASSOCIATION, COOPERATIVE BOARD, OR SIMILAR GOVERNING ENTITY AGAINST CLIENT WHICH RESULTS IN ECS BEING BROUGHT INTO THE DISPUTE. 19.5 IN NO EVENT SHALL THE DUTY TO INDEMNIFY AND HOLD ANOTHER PARTY HARMLESS UNDER THIS SECTION 19.0 INCLUDE THE DUTY TO DEFEND. 20.0 CONSEQUENTIAL DAMAGES 20.1 CLIENT shall not be liable to ECS and ECS shall not be liable to CLIENT for any consequential damages incurred by either due to the fault of the other or their employees, consultants, agents, contractors or subcontractors, regardless of the nature of the fault or whether such liability arises in breach of contract or warranty, tort, statute, or any other cause of action. Consequential damages include, but are not limited to, loss of use and loss of profit. 20.2 ECS shall not be liable to CLIENT, or any entity engaged directly or indirectly by CLIENT, for any liquidated damages due to any fault, or failure to act, in part or in total by ECS, its employees, agents, or subcontractors. 21.0 SOURCES OF RECOVERY 21.1 All claims for damages related to the Services provided under this agreement shall be made against the ECS entity contracting with the CLIENT for the Services, and no other person or entity. CLIENT agrees that it shall not name any affiliated entity including parent, peer, or subsidiary entity or any individual officer, director, or 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 connection with the Project and /or the Services, CLIENT and ECS agree that they will look solely to each other for the satisfaction of any such dispute or claim. Moreover, notwithstanding anything to the contrary contained in any other provision herein, CLIENT and ECS' agree that their respective shareholders, principals, partners, members, agents, directors, officers, employees, and /or owners shall have no liability whatsoever arising out of or in connection with the Project and /or Services provided hereunder. In the event CLIENT brings a claim against an affiliated entity, parent entity, subsidiary entity, or individual officer, director or employee in contravention of this Section 21, CLIENT agrees to hold ECS harmless from and against all damages, costs, awards, or fees (including attorneys' fees) attributable to such act. 22.0 THIRD PARTY CLAIMS EXCLUSION - CLIENT and ECS agree that the Services are performed solely for the benefit of the CLIENT and are not intended by either CLIENT or ECS to benefit any other person or entity. To the extent that any other person or entity is benefited by the Services, such benefit is purely incidental and such other person or entity shall not be deemed a third party beneficiary to the AGREEMENT. No third -parry shall have the right to rely on ECS' opinions rendered in connection with ECS' Services without written consent from both CLIENT and ECS, which shall include, at a minimum, the third - party's agreement to be bound to the same Terms and Conditions contained herein and third -party's agreement that ECS' Scope of Services performed is adequate. 23.1 In the event any claims, disputes, and other matters in question arising out of or relating to these Terms or breach thereof (collectively referred to as "Disputes'), the parties shall promptly attempt to resolve all such Disputes through executive negotiation between senior representatives of both parties familiar with the Project. The parties shall arrange a mutually convenient time for the senior representative of each party to meet. Such meeting shall occur within fifteen (15) days of either party's written request for executive negotiation or as otherwise mutually agreed. Should this meeting fail to result in a mutually agreeable plan for resolution of the Dispute, CLIENT and ECS agree that either party may bring litigation. 23.2 CLIENT shall make no claim (whether directly or in the form of a third -party claim) against ECS unless CLIENT shall have first provided ECS with a written certification executed by an independent engineer licensed in thejurisdiction in which the 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 shall be a precondition to the institution of any judicial proceeding and shall be provided to ECS thirty (30) days prior to the institution of such judicial proceedings. 23.3 Litigation shall be instituted in a court of competent jurisdiction in the county or district in which ECS' office contracting with the CLIENT is located. The parties agree that the law applicable to these Terms and the Services provided pursuant to the Proposal shall be the laws of the Commonwealth of Virginia, but excluding its choice of law rules. Unless otherwise mutually agreed Page 9 to in writing by both parties, CLIENT waives the right to remove any litigation action to any other jurisdiction. Both parties agree to waive any demand for a trial byjury. 24.0 CURING A BREACH 24.1 A party that believes the other has materially breached these Terms shall issue a written cure notice identifying its alleged grounds for termination. Both parties shall promptly and in good faith attempt to identify a cure for the alleged breach or present facts showing the absence of such breach. If a cure can be agreed to or the matter otherwise resolved within thirty (30) calendar days from the date of the termination notice, the parties shall commit their understandings to writing and termination shall not occur. 24.2 Either party maywaive any right provided bythese Terms in curing an actual or alleged breach; however, such waiver shall not affect future application of such provision or any other provision. 25.0 TERMINATION 25.1 CLIENT or ECS may terminate this agreement for breach or these terms, non - payment, or a failure to cooperate. In the event of termination, the effecting party shall so notify the other parry in writing and termination shall become effective fourteen (14) calendar days after receipt of the termination notice. 25.2 Irrespective of which party shall effect termination, or the cause therefore, ECS shall promptly render to CLIENT a final invoice and CLIENT shall immediately compensate ECS for Services rendered and costs incurred including those Services associated with termination itself, including without limitation, demobilizing modifying schedules, and reassigning personnel. 26.0 TIME BAR TO LEGAL ACTION - Unless prohibited by law, and notwithstanding any Statute that may provide additional protection, CLIENT and ECS agree that a lawsuit by either party alleging a breach of this agreement, violation of the Standard of Care, non - payment of invoices, or arising out of the Services provided hereunder, must be initiated in a court of competent jurisdiction no more than two (2) years from the time the parry knew, or should have known, of the facts and conditions giving rise to its claim, and shall under no circumstances shall such lawsuit be initiated more than three (3) years from the date of substantial completion of ECS' Services. 27.0 ASSIGNMENT - CLIENT and ECS respectively bind themselves, their successors, assigns, heirs, and legal representatives to the other party and the successors, assigns, heirs and legal representatives of such other party with respect to all covenants of these Terms. Neither CLIENT nor ECS shall assign these Terms, any rights thereunder, or any cause of action arising therefrom, in whole or in part, without the written consent ofthe other. Any purported assignment or transfer, except as permitted above, shall be deemed null, void and invalid, the purported assignee shall acquire no rights as a result of the purported assignment or transfer and the non - assigning party shall not recognize any such purported assignment or transfer. 2R.0 SEVERABILITY - Any provision of these Terms later held to violate any law, statute, or regulation, shall be deemed void, and all remaining provisions shall continue in full force and effect. CLIENT and ECS shall endeavor to quickly replace a voided provision with a valid substitute that expresses the intent of the issues covered by the original provision. 29.0 SURVIVAL - All obligations arising prior to the termination of the agreement represented by these Terms and all provisions allocating responsibility or liability between the CLIENT and ECS shall survive the substantial completion of Services and the termination of the agreement. 30.0 TITLES, ENTIRE AGREEMENT 30.1 The titles used herein are for general reference only and are not part of the Terms and Conditions. 30.2 These Terms and Conditions of Service together with the Proposal, including all exhibits, appendixes, and other documents appended to it, constitute the entire agreement between CLIENT and ECS. CLIENT acknowledges that all prior understandings and negotiations are superseded by this agreement. 30.3 CLIENT and ECS agree that subsequent modifications to the agreement represented by these shall not be binding unless made in writing and signed by authorized representatives of both parties. 30.4 All preprinted terms and conditions on CLIENT'S purchase order, Work Authorization, or other service acknowledgement forms, are inapplicable and superseded by these Terms and Conditions of Service. 30.5 CLIENT's execution of a Work Authorization, the submission of a start work authorization (oral or written) or issuance of a purchase order constitutes CLIENTS acceptance of this Proposal and its agreement to be fully bound the foregoing Terms. If CLIENT fails to provide ECS with a signed copy of these Terms or the attached Work Authorization, CLIENT agrees that by authorizing and accepting the services of ECS, it will be fully bound by these Terms as if they had been signed by CLIENT. Ver. 06/04/13 DocuSign Envelope ID: 03429E5D- 85E8 -4B59- 8796- 5E3D42360742 Questionnaire Environmental Iser Completion required for conformance with ASTM E 1527-13. Failure to provide this return answered form to i F 4 1 1 I'313 D E - 3c, Please state reason for having ESA performed: Please select one: NO I Please select one: NO F-1 YEs F-1 W#,,,.. M M r # # .!O',Iease select one: Client to Provide ■ Page 1 of 3 ECS to Provide for Additional ■ DocuSign Envelope ID: 03429E5D-85E8-4B59-8796-5E3D42360742 # and land use limitations that are in place on the site or that have been filed or recorded 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 select one: No F-1 YES F-1 If yes, please explain: (2.) Specialized knowledge - 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 • this type • business? 4;05� (3.) 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 • threatened releases? For example: (a.) Do you know the past uses of the property? Please select one: No ❑ YES ❑ If yes, please state uses: ?0`lease select one: NO Ui yes, please explain: 1; 1 TOT r1r--TrA TIM, in I I Z! I I 11 0. 4.0 Please select one: NO ■ YES ■ If yes, please explain: Page 2 of 3 DocuSign Envelope ID: 03429E5D-85E8-4B59-8796-5E3D42360742 Please select one: No F-1 YES F-1 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 select one: NOF-1 YES F-1 If no, please explain: If you are aware that there is a difference, is the lower purchase price because contamination is known or believed to be present at the property? Property Manager and Occupant(s) & Contact Number(s) (6.) The degree of obviousness of the presence M,, presence of contamination at the property, and f 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 select one: No F-1 YES F-1 If yes, please explain: Page 3 of 3 DocuSign Envelope ID: 03429E5D- 85E8 -4B59- 8796- 5E3D42360742 �1 ECSSOUT -02 JTORREZ 14co►20 CERTIFICATE OF LIABILITY INSURANCE DATE (MM /DD/YYYY) 11/08/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Ames & Gough 8300 Greensboro Drive Suite 980 CONTACT NAME: PHONE AX (A/C, No, Ext): (703) 827 -2277 (A/C, No):(703) 827 -2279 E-MAIL admin @amesgough.com McLean, VA 22102 INSURERS AFFORDING COVERAGE NAIC # INSURER A: Continental Casualty Company CNA) A XV 20443 $ INSURED INSURER B: $ INSURER C : MED EXP (Any one person) ECS Southeast, LLP INSURER D: 1812 -D Center Park Drive Charlotte, NC 28217 INSURER E GEN'L INSURER F: GENERAL AGGREGATE $ COVERAGES CERTIFICATE NUMRFR- REVISION NUMRFR- THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSD SUBR WVD POLICY NUMBER POLICY EFF MM /DD POLICY EXP MM /DD LIMITS COMMERCIAL GENERAL LIABILITY CLAIMS -MADE ❑ OCCUR EACH OCCURRENCE $ DAMAGE TO RENTED PREMISES Ea occurrence $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: POLICY EI PRQ 1:1 LOC OTHER: GENERAL AGGREGATE $ PRODUCTS - COMP /OP AGG $ $ AUTOMOBILE LIABILITY ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS HIRED NOWISWNED AUTOS ONLY AUTOS ONLY COMBINED SINGLE LIMIT Ea accident $ BODILY INJURY Per person) $ BODILY INJURY Per accident $ Per OacaiCent AMAGE $ UMBRELLA LIAB EXCESS LIAB OCCUR CLAIMS -MADE EACH OCCURRENCE $ AGGREGATE $ DIED RETENTION $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N ANY PROPRIETOR/PARTNER/EXECUTIVE ❑ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N/A PER OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ A Professional Liab. AEH288257904 06/1512017 06/1512018 Per Claim /Aggregate 2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) CERTIFICATE HOLDER CANCELLATION ACORD 25 (2016/03) ©1988 -2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Orange County Government 9 tY THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 131 West Margaret Lane, Suite 300 P.O. Box 8181 AUTHORIZED REPRESENTATIVE Hillsborough, NC 27278 ACORD 25 (2016/03) ©1988 -2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD