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2021-003-E AMS - ECS Southeast LLP Court Street Annex asbestos
DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE [Departmental Use Only] TITLE CSA ACM Services FY 2020-2021 NORTH CAROLINA SERVICES AGREEMENT NO RFP/RFQ ORANGE COUNTY This Services Agreement (hereinafter "Agreement"), made and entered into this 8th day of January, 2021, ("Effective Date") by and between Orange County, North Carolina a political subdivision of the State of North Carolina (hereinafter, the "County") and ECS, Southeast, LLP, (hereinafter, the 'Provider"). WITNESSETH: That the County and Provider, for the consideration herein named, do hereby agree as follows: 1. Services a. Scope of Work. i) This Agreement is for services to be rendered by Provider to County with respect to (insert type of project): Court Street Annex Asbestos Services for Court Street Annex 2nd floor,per proposal 49:22050-P dated January 5, 2021 ii) By executing this Agreement, the Provider represents and agrees that Provider is qualified to perform and fully capable of performing and providing the services required or necessary under this Agreement in a fully competent, professional and timely manner. iii) Time is of the essence with respect to this Agreement. iv) The services to be performed under this Agreement consist of Basic Services, as described and designated in Section 3 hereof. Compensation to the Provider for Basic Services under this Agreement shall be as set forth herein. 2. Responsibilities of the Provider a. Services to be provided. The Provider shall provide the County with all services required in Section 3 to satisfactorily complete the Project within the time limitations set forth herein and in accordance with the highest professional standards. b. Standard of Care. i) The Provider shall exercise reasonable care and diligence in performing services under this Agreement in accordance with the highest generally accepted standards of this type of Provider practice throughout the United States and in accordance with applicable federal, state and local laws and regulations applicable to the performance of these services. Provider is solely responsible for the professional Revised 07/20 1 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE quality, accuracy and timely completion and submission of all work related to the Basic Services. ii) Provider shall be responsible for all errors or omissions of its agents, contractors, employees, or assigns in the performance of the Agreement. Provider shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the County. iii) The Provider shall not, except as otherwise provided for in this Agreement, subcontract the performance of any work under this Agreement without prior written permission of the County. No permission for subcontracting shall create, between the County and the subcontractor, any contract or any other relationship. iv) Provider is an independent contractor of County. Any and all employees of the Provider engaged by the Provider in the performance of any work or services required of the Provider under this Agreement, shall be considered employees or agents of the Provider only and not of the County, and any and all claims that may or might arise under any workers compensation or other law or contract on behalf of said employees while so engaged shall be the sole obligation and responsibility of the Provider. v) If activities related to the performance of this Agreement require specific licenses, certifications, or related credentials Provider represents that it 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. vi) In determining the Basic Services to be provided, should any documents be referenced in this Agreement, the terms of this Agreement shall have priority in any conflict between the terms of referenced documents and the terms of this Agreement. vii) Should this Agreement involve project designs, the construction or creation of which is to be bid out or fulfilled by other contractors, and bidding or negotiation with contractors produce prices which, when added to the other elements of the approved total project cost, produce a cost that is in excess of the approved total project cost, the Provider shall participate with the County in negotiation and design adjustments to the extent such are necessary to obtain prices within the approved total project cost. All activity of the Provider with respect to these matters shall constitute Basic Services and shall be performed by the Provider without additional compensation. If negotiation and design adjustments fail to bring costs within the total project cost the County may reject all bids and Provider will redesign or reduce portions of the project in an effort to reduce the bid prices to within the total project cost and rebid the project. One such redesign is included within Basic Services. If this second letting for bids does not produce bids that are within the approved total project cost initially or after negotiations with the contractor the cost is not reduced to an amount within the total project cost, the Provider is not obligated to engage in further redesign. Revised 07/20 2 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE 3. Basic Services a. Basic Services. The Services to be rendered pursuant to this Agreement are as follows (fully describe services to be provided): Provide the following services: Task 1 - Asbestos Plans and specifications, Task 2 - Air Monitoring/Clearance Testing Services, Task 3 -Designers Final Review/Report. 4. Duration of Services a. Term. The term of this Agreement shall be from January 8, 2021 to April 30, 2021. b. Scheduling of Services. i) The Provider shall schedule and perform its activities in a timely manner. ii) Should the County determine that the Provider is behind schedule, it may require the Provider to expedite and accelerate its efforts, including providing additional resources and working overtime, as necessary, to perform its services in accordance with the approved project schedule at no additional cost to the County. iii) The Commencement Date for the Provider's Basic Services shall be January 8, 2021. 5. Compensation a. Compensation for Basic Services. Compensation for Basic Services shall include all compensation due the Provider from the County for all services satisfactorily (as determined by the County) performed pursuant to this Agreement. The maximum amount payable for Basic Services shall not exceed Seven Thousand, Six Hundred Dollars ($7,600.00). Payment for satisfactorily performed Basic Services shall become due and payable within thirty(30) days of Provider properly invoicing County. Payment shall be subject to provisions of Section 5(b). b. Disputes. In the event the amount stated on an invoice is disputed by the County, the County may withhold payment of all or a portion of the amount stated on an invoice until the parties resolve the dispute. Should Provider fail to perform its duties under the terms of this Agreement, County may, without fault or penalty, withhold any payment associated with the work to be performed until such time as said work is completed. c. Additional Services. County shall not be responsible for costs related to any services in addition to the Basic Services performed by Provider unless County requests such additional services in writing and such additional services are evidenced by a written amendment to this Agreement. 6. Responsibilities of the County a. Cooperation and Coordination. The County has designated (Angel Barnes) to act as the County's representative with respect to the Project who shall have the authority to render decisions within guidelines established by the County Manager or the County Board of Revised 07/20 3 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE Commissioners and who shall be available during working hours as often as may be reasonably required to render decisions and to furnish information. 7. Insurance a. General Requirements. Provider shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers' Compensation Insurance, and any additional insurance as may be required by County's Risk Manager as such insurance requirements are described in the Orange County Risk Transfer Policy and Orange County Minimum Insurance Coverage Requirements (each document is incorporated herein by reference and may be viewed at http://www.orangecountync.gov/departments/purchasing division/contracts.php). If County's Risk Manager determines additional insurance coverage is required such additional insurance shall consist of N/A(if no additional insurance required mark N/A as being not applicable). Provider shall not commence work until such insurance is in effect and certification thereof has been received by the County's Risk Manager. 8. Indemnity a. Indemnity. To the extent authorized by North Carolina law the Provider agrees, without limitation, to defend, indemnify and hold harmless the County from all loss, liability, claims or expense, including attorney's fees, arising out of or related to the Project and arising from 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 Provider except to the extent same are caused by the negligence or willful misconduct of the County. It is the intent of this provision to require the Provider to indemnify the County to the fullest extent permitted under North Carolina law. 9. Amendments to the Agreement a. Changes in Basic Services. Changes in the Basic Services and entitlement to additional compensation or a change in duration of this Agreement shall be made by a written Amendment to this Agreement executed by the County and the Provider. The Provider shall proceed to perform the Services required by the Amendment only after receiving a fully executed Amendment from the County. 10. Termination a. Termination for Convenience of the County. This Agreement may be terminated without cause by the County and for its convenience upon seven (7) days' prior written notice to the Provider. b. Other Termination. The Provider may terminate this Agreement based upon the County's material breach of this Agreement; provided, the County has not taken all reasonable actions to remedy the breach. The Provider shall give the County seven(7) days'prior written notice of its intent to terminate this Agreement for cause. Either party may terminate this Agreement upon notice to the other party that obligations pursuant to this Agreement are made impractical due to declarations of emergency by Orange County or by North Carolina due to events directly impacting Orange County. Both parties shall Revised 07/20 4 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE remain responsible for all payment and performance due up to the receipt of such notice, but shall have no further obligation or responsibility beyond that date provided the terminating party has taken all reasonable steps to complete the performance of its obligations. c. Compensation After Termination. i) In the event of termination, the Provider shall be paid that portion of the fees and expenses that it has earned to the date of termination, less any costs or expenses incurred or anticipated to be incurred by the County due to errors or omissions of the Provider. Upon request of the County, the Provider shall submit to County all relevant documentation, including but not limited to, job cost records, to support its claims for final compensation. ii) Should this Agreement be terminated, the Provider shall deliver to the County within seven (7) days, at no additional cost, all deliverables including any electronic data or files relating to the Project. d. Waiver. The payment of any sums by the County under this Agreement or the failure of the County to require compliance by the Provider with any provisions of this Agreement or the waiver by the County of any breach of this Agreement shall not constitute a waiver of any claim for damages by the County for any breach of this Agreement or a waiver of any other required compliance with this Agreement. e. Suspension. County may suspend the Basic Services and this Agreement at any time for County's convenience and without penalty to County upon three (3) days' notice to Provider. Upon any suspension by County, Provider shall discontinue work on the Basic Services and shall not resume the Basic Services until notified to proceed by County. 11. Additional Provisions a. Limitation and Assignment. The County and the Provider each bind themselves, their successors, assigns and legal representatives to the terms of this Agreement. Neither the County nor the Provider shall assign or transfer its interest in this Agreement without the written consent of the other. b. Governing Law. 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. By executing this Agreement Provider affirms that Provider and any subcontractors of Provider are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.58. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.81. c. Non-Discrimination. Provider 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 Revised 07/20 5 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE and federal non-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://www.oran eg countync.gov/departments/purchasing division/contracts.php.) Any violation of the Orange County Non-Discrimination Policy 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 and does not limit the definition of breach to discrimination. d. Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages with respect to any provision of, or the performance or non-performance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina. It is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. Binding arbitration may not be initiated by either Party, however, the Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. e. Entire Agreement. This Agreement represents the entire and integrated agreement between the County and the Provider and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. f. Severability. If any provision of this Agreement is held as a matter of law to be unenforceable, the remainder of this Agreement shall be valid and binding upon the Parties. g. Ownership of Work Product. Should Provider's performance of this Agreement generate documents, items or things that are specific to this Project such documents, items or things shall become the property of the County and may be used on any other project without additional compensation to the Provider. The use of the documents, items or things by the County or by any person or entity for any purpose other than the Project as set forth in this Agreement shall be at the full risk of the County. h. Non-Appropriation. Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of County's obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability and non-appropriation of public funds. It is expressly agreed that County shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of this Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the County's statutory authority, mandate or mandated functions, by state or federal legislative or regulatory action, which adversely affects County's authority to continue its obligations under this Agreement, then this Agreement Revised 07/20 6 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE shall automatically terminate without penalty to County upon written notice to Provider of such limitation or change in County's legal authority. i. Signatures. 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 11A and Article 40 of North Carolina General Statute Chapter 66. j. Notices. Any notice required by this Agreement shall be in writing and delivered by certified or registered mail, return receipt requested to the following: Orange County Provider's Name Attention:AMS ECS, Southeast, LLP P.O. Box 8181 4811 Koger Blvd. Hillsborough,NC 27278 Greensboro,NC 27407 [SIGNATURE PAGE TO FOLLOW] Revised 07/20 7 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have hereunder set their hands and seal, all as of the day and year first above written. ORANGE COUNTY: PROVIDER: o sg tlby: DocuSig—by: By: [�b��N��,�, 1/11/2021 By: S. fi 18/2021r,P.G. / S/ig66'gH�W8S3E_. Bonnie Hammersley, County Manager John Lair, Vice President Printed Name and Title Revised 07/20 8 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE ORANGE COUNTY-DEPARTMENT USE ONLY Party/Vendor Name: ECS Southeast,LLP Party/Vendor Contact Person: Tina Stewart(TStewart(a()ecslimited.com) or John Lair (Jlair(d)ecslimited.com) Contact Phone: 336. Party/Vendor Address: 4811 Koger Blvd. City Greensboro State: NC Zip: 27407 Department: AMS Amount: $7,600.00 Purpose: Court Street Annex Asbestos Services Budget Code(s): 61370035-880000-10004 Vendor# 56914 (N/A if new vendor) Vendor is a BOCC consultant? Yes ❑ No® Contract Type: (Check one) New ® Renewal ❑ Amendment ❑ Effective Date 01/08/2021 Approved by Board Yes❑No® Agenda Date: This agreement is approved as to technical form and content and I as Department Director affirmatively state work on this project has not been initiated prior to execution of the agreement: D S'g gby:Department Director's Signature Date: 1/$/2021 Agreements for emergency services or repair are not subject to the above affirmation. If services related to this agreement have already begun or been completed please briefly describe the nature of the emergency condition that was addressed: N/A Information Technologies (Applicable only to hardware/software purchases or related services)This agreement has been reviewed and is approved as to information technology content and specifications: Office of the Chief Information Officer Date: Risk Management This agreement is approved for sufficiency of insurance standards,specifications,and requirements: D s'g ea by: Office of the Risk Management Office ILlisa(anu$e Date:1/8/2021 �]FDD Financial Services This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control DS P[ Act: D Sig g by: Office of the Chief Financial Officer� '�""�"` Date:1/9/2021 Legal Services This agreement is approved as to legal form and sufficiency: D Sig,,d by: Office of the County Attorne '6 hniv, Date:1/11/2021 Y� �� Clerk to the Board Received for record retention: All Docusign contracts must be copied to the Clerk upon completion: occlerkdocs@orangecountync.gov The following signature block is for hard copies only and is not required for Docusign contracts: Office of the Clerk to the Board Date: Revised 07/20 9 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE I dV ' i ............ ECS Southeast, LLP Proposal for Asbestos Services Orange County Court Street Annex Building Second Floor 109 Court Street Hillsborough, North Carolina ECS Proposal No. 49:22050-P January 5, 2021 0 o� DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE ECS SOUTHEAST, L L P "Setting the Standard for Service" � Geotechnlcal - Construction Materials - Environmental - Facilities NC Registered Engineering Firm F•1078 NC Registered Geologists Firm C-406 SC Registered Engineering Firm 3239 January 5, 2021 Ms. Angel Barnes Capital Projects Manager Orange County Asset Management Services 300 West Tryon Street Bldg B, 3rd Floor Office 10 Hillsborough, North Carolina 27278 Reference: Proposal for Asbestos Services Orange County Court Street Annex Building Second Floor 109 Court Street Hillsborough, North Carolina ECS Proposal No. 49:22050-P Dear Ms. Barnes: ECS Southeast, LLP (ECS) is pleased to provide this proposal for asbestos services at the above referenced site. Our considerable experience with similar projects will help us provide efficient, cost-effective services. This proposal contains our understanding of the project information, proposed scope of services, estimated fee, schedule and authorization requirements. PROJECT INFORMATION The site consists of the Second Floor of the Orange County Court Street Annex building located at 109 Court Street in Hillsborough, Orange County, North Carolina. ECS recently conducted an asbestos assessment (ECS Project No. 49-12854, dated December 29, 2020) and identified asbestos-containing materials (ACMs)that will be disturbed by planned renovations. The identified ACMs include: • 9"x9" brown, beige streak vinyl composite tile (VCT) and associated mastic; • 9"x9" tan VCT and associated mastic; and, • Mastic beneath 12"x12"white, blue streak VCT(non-detect VCT). It is ECS' understanding the second floor of the building is planned for renovations. SCOPE OF SERVICES Based on our understanding of the project information, ECS will perform the following scope of services: Task 1-Asbestos Plans and Specifications Based on our understanding, ECS will review the asbestos assessment information associated with Task 1 and prepare specifications and working drawings for the removal of the ACMs identified in the planned renovation areas. The specifications and working drawings will include project information, project requirements and removal procedures,work site conditions, respiratory and personnel protection, health and safety compliance, bid forms and submittals, add/alternate options and specific drawings. ECS will edit the figures included in the asbestos assessment with the location of asbestos to be removed, as needed. Our fee for Task 1 does not include developing base plans with the existing building layout other ECS Capitol Services,PLLC • ECS Florida,LLC • ECS Mid-Atlantic,LLC • ECS Midwest,LLC • ECS Southeast,LLP • ECS Texas,LLP www.ecslimited.com DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE ECS SOUTHEAST, LLP than using figures in the asbestos assessment. The plans and specifications will be prepared in general accordance with EPA, OSHA, and State of North Carolina regulations. Task 2—Air Monitoring/Clearance Testing Services During asbestos removal activities, ECS will perform air monitoring to inspect the work area integrity, check the critical barriers, inspect decontamination and load out areas, visually inspect negative air machines and document differential air pressure from manometer readings, and review the contractor's permit, documentation and worker accreditations. Air monitoring ensures that during asbestos removal, the contractor's site controls are not impacting adjacent areas or floors. Daily air sampling will be performed in general accordance with the National Institute of Occupational Safety and Health (NIOSH) Method 7400 using optical Phase Contrast Microscopy(PCM). This method of measuring airborne asbestos in buildings was developed by NIOSH in conjunction with the Occupational Safety and Health Administration (OSHA) asbestos exposure standards for the workplace. This method cannot distinguish asbestos fibers from non-asbestos fibers and is not sensitive to fibers with diameters less than 0.2 micrometers. Based on the requirements of State of North Carolina, Health Hazard Control Unit regulations, clearance air sampling will be performed using Transmission Electron Microscopy (TEM) based on the quantity of VCT and associated mastics to be removed and re-occupancy of the building. PCM cannot distinguish asbestos fibers from non-asbestos fibers and detect fibers less than 0.2 micrometers in diameter. Clearance air samples are the last set of air samples collected and analyzed prior to the abatement contractor's removal of the decontamination unit from the work area. ECS has estimate a budget number for TEM air samples but will confirm this when asbestos removal schedule is finalized. Task 3- Designers Final Review/Report Review of Submittals ECS will review pre-job and post-job submittals during the project and any written requests provided to the designer. Final Review At completion of abatement activities, the designer will perform a final walk through of the building documenting removal of ACM per Office of State Construction requirements. We will prepare a written report at the completion of asbestos abatement that will include site observations, waste manifests, air sample results and our conclusions and recommendations. ESTIMATED FEE We will provide the above referenced scope of services for the following lump sum fees: Task 1-Asbestos Design Service Asbestos Removal Plans and Specifications ...................................................................................$2,500.00 Budget Task 1...........................................................$2,500.00 a ECS Proposal No.49:22050-P Page 13 gi- a DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE ECS SOUTHEAST, LLP Task 2-Air Monitoring/Air Clearance Samples(daily/unit rate) Air Monitoring* (estimated $600/day for five days)......................................................................$3,000.00 PCMAir Samples............................................................................................................................ No Charge TEM Air Samples (based on 24 hour turnaround—Estimated 10 samples @ $75/sample)* ...........$750.00 Budget Task 2...........................................................$3,750.00 *The total cost for air monitoring cannot be determined until the asbestos abatement scope of work is written and the schedule is determined. We can provide a more detailed estimate when the project is designed and abatement contractor's schedule has been determined. Based on the quantity of VCT and associated mastic and re-occupancy of the floor,TEM clearance samples are anticipated for the project. Task 3—Designer's Final Review/Report Review of Pre-job and Post Job Submittals .......................................................................................$350.00 Designers Final Visit/Review/Submittals/Report............................................................................$1,000.00 Budget Task 3...........................................................$1,350.00 TOTAL ESTIMATED COST FOR SCOPE OF SERVICES..................................................................$7,600.00 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. • Prices are based on performing work on a non-holiday weekday during normal business hours(7:00am —5:00pm, Monday—Friday). • Additional project work not specifically addressed by this proposal shall be charged at a time and materials rate. Additional work, if required, shall be authorized by the client prior to initiation. Provided conditions are as understood and as assumed, ECS 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 on an hourly basis. SCHEDULE The asbestos removal plans and specifications (Task 1) can be prepared within two weeks of written authorization to proceed. The schedule associated with Tasks 2 and 3 will be dependent upon the project schedule. a ECS Proposal No.49:22050-P Page 14 a DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE ECS SOUTHEAST, LLP GENERAL COMMENTS This letter is the agreement for our services.We will perform our services in accordance with the Terms and Conditions of Service attached to this proposal.Your acceptance of this proposal may be indicated by signing and returning one of the duplicates to us.We are pleased to have this opportunity to offer our services and look forward to working with you on the project. Sincerely, ECS SOUTHEAST,LLP Ryan C.Abrahamson Tina M.Stewart, REM Environmental Project Manager Environmental Principal rbrahamson@ecslimited.com tstewart@ecslimited.com 336-856-7150 336-314-4691 Attachments: Proposal Acceptance Sheet Terms and Conditions of Service a ECS Proposal No.49:22050-P Page 15 a DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE ECS SOUTHEAST, LLP PROPOSAL ACCEPTANCE FORM ECS SOUTHEAST, LLP (Please Print or Type) Project Name: Orange County Court Street Annex Second Floor—Asbestos Services Location: 109 Court Street, Hillsborough, North Carolina Please check: _Task 1—Asbestos Plans and Specs; _Task 2 -Air Monitoring Services; Task 3—Designer's Final Review/Report Please complete and return this Proposal Acceptance Form to ECS. 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 general conditions of service in its entirety and agree to pay for these services. CLIENT AND BILLING INFORMATION Name of Client: Contact Person: Telephone No. E-mail: Responsible for Payment Approval of Invoice(if different) Contact Name: Company Name: Address Address City, State, Zip Telephone No.: Fax No: E-mail Address: Reports are normally e-mailed directly to client. If you require copies to others, please provide their names, e-mail addresses, and fax numbers below. Name e-mail Address Phone Number Fax Number Special Instructions: Client Signature: X Date: Please return signed authorization to Amberly Merritt at amerritt@ecslimited.com. a ECS Proposal No.49:22050-P Page 16 _ 0 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE ECS SOUTHEAST, LLP Client:Orange County Asset Management Services (hereinafter the"Proposal") ECS SOUTHEAST,LLP TERMS AND CONDITIONS OF SERVICE The professional services(the"Services")to be provided by ECS SOUTHEAST,LLP["ECS")pursuant 7.0 RIGHT OF ENTRY/DAMAGE RESULTING FROM SERVICES to the Proposal shall be provided in accordance with these Terms and Conditions of Service 7.1 CLIENT warrants that it possesses the authority to grant ECS right of entry to the Site for the ("Terms"),including any addenda as may be incorporated or referenced in writing shall form the performance of Services. CLIENT hereby grants ECS and its subcontractors and/or agents,the right Agreement between ECS and Client. to enter from time to time onto the property in order for ECS to perform its Services. CLIENT 1.0 INDEPENDENT CONSULTANT STATUS-ECS shall serve as an independent professional agrees to indemnify and hold ECS harmless from any claims arising from allegations that ECS consultant to CLIENT for Service on the Project,identified above,and shall have control over,and trespassed or lacked authority to access the Site. responsibility for,the means and methods for providing the Services identified in the Proposal, 7.2 CLIENT warrants that it possesses all necessary permits,licenses and/or utility clearances for including the retention of Subcontractors and Subconsultants the Services to be provided by ECS except where ECS'Proposal explicitly states that ECS will obtain such permits,licenses,and/or utility clearances. 2.0 SCOPE OF SERVICES-It is understood that the fees,reimbursable expenses and time 7.3 ECS will take reasonable precautions to limit damage to the Site and its improvements during schedule defined in the Proposal are based on information provided by CLIENT and/or CLIENT'S the performance of its Services. CLIENT understands that the use of exploration,boring,sampling, contractors and consultants. CLIENT acknowledges that if this information is not current,is or testing equipment may cause minor,but common,damage to the Site.The correction and incomplete or inaccurate,if conditions are discovered that could not be reasonably foreseen,or if restoration of such common damage is CLIENT'S responsibility unless specifically included in ECS' CLIENT orders additional services,the scope of services will change,even while the Services are in Proposal. progress. 7.4 CLIENT agrees that it will not bring any claims for liability or for injury or loss against ECS 3.0 STANDARD OF CARE arising from(i)procedures associated with the exploration,sampling or testing activities at the 3.1 In fulfilling its obligations and responsibilities enumerated in the Proposal,ECS shall be Site,(ii)discovery of Hazardous Materials or suspected Hazardous Materials,or(iii)ECS'findings, expected to comply with and its performance evaluated in light of the standard of care expected conclusions,opinions,recommendations,plans,and/or specifications related to discovery of of professionals in the industry performing similar services on projects of like size and contamination. complexity at that time in the region(the"Standard of Care").Nothing contained in the 8.0 UNDERGROUND UTILITIES Proposal,the agreed-upon scope of Services,these Terms and Conditions of Service or any ECS 8.1 ECS shall exercise the Standard of Care in evaluating client-furnished information as well as report,opinion,plan or other document prepared by ECS shall constitute a warranty or guaranty information readily and customarily available from public utility locating services(the of any nature whatsoever. "Underground Utility Information")in its effort to identify underground utilities.The extent of such 3.2 CLIENT understands and agrees that ECS will rely on the facts learned from data gathered evaluations shall be at ECS'sole discretion. during performance of Services as well as those facts provided by the CLIENT. CLIENT 8.2 CLIENT recognizes that the Underground Utility Information provided to or obtained by ECS acknowledges that such data collection is limited to specific areas that are sampled,bored,tested, may contain errors or be incomplete.CLIENT understands that ECS may be unable to identify the observed and/or evaluated. Consequently,CLIENT waives any and all claims based upon locations of all subsurface utility lines and man-made features. erroneous facts provided by the CLIENT,facts subsequently learned or regarding conditions in areas not specifically sampled,bored,tested,observed or evaluated by ECS. 8.3 CLIENT waives,releases,and discharges ECS from and against any claim for damage,injury or 3.3 If a situation arises that causes ECS to believe compliance with CLIENT'S directives would be 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 contrary to sound engineering practices,would violate applicable laws,regulations or codes,or will expose ECS to legal claims or charges,ECS shall advise CLIENT. If ECS'professional judgment is the Underground Utility Information and/or not properly marked or located by the utility owners, rejected,ECS shall have the right to terminate its Services accordance with the provisions governmental or quasi-governmental locators,or private utility locating services as a result of ECS' Section EC below. or ECS'subcontractor's request for utility marking services made in accordance with local industry standards. 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 9.0 SAMPLES appropriate public officials. CLIENT agrees that such determinations are ECS'sole right to make. 9.1 Soil,rock,water,building materials and/or other samples and sampling by-products 4.0 CLIENT DISCLOSURES 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 4.1 Where the Scope of Services requires ECS to penetrate a Site surface,CLIENT shall furnish consumed in laboratory testing for up to sixty(60)calendar days after the issuance of any and/or shall direct CLIENT'S consultant(s)or agent(s)to furnish ECS information identifying the document containing data obtained from such samples.Samples consumed by laboratory testing type and location of utility lines and other man-made objects known,suspected,or assumed to be procedures will not be stored. located beneath or behind the Site's surface. ECS shall be entitled to rely on such information for 9.2 Unless CLIENT directs otherwise,and excluding those issues covered in Section 10.0,CLIENT completeness and accuracy without further investigation,analysis,or evaluation. authorizes ECS to dispose of CLIENT'S non-hazardous samples and sampling or testing process by- 4.2 "Hazardous Materials"shall include but not be limited to any substance that poses or may products in accordance with applicable laws and regulations. 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 10.0 ENVIRONMENTAL RISKS or gaseous form.CLIENT shall notify ECS of any known,assumed,or suspected regulated, 10.1 When Hazardous Materials are known,assumed,suspected to exist,or discovered at the contaminated,or other similar Hazardous Materials that may exist at the Site prior to ECS Site,ECS will endeavor to protect its employees and address public health,safety,and mobilizing to the Site. environmental issues in accordance with the Standard of Care. CLIENT agrees to compensate ECS 4.3 If any Hazardous Materials are discovered,or are reasonably suspected by ECS after its for such efforts. Services begin,ECS shall be entitled to amend the scope of Services and adjust its fees to reflect 10.2 When Hazardous Materials are known,assumed,or suspected to exist,or discovered at the the additional work or personal protective equipment and/or safety precautions required by the Site,ECS and/or ECS'subcontractors will exercise the Standard of Care in containerizing and existence of such Hazardous Materials. labeling such Hazardous Materials in accordance with applicable laws and regulations,and will 5.0 INFORMATION PROVIDED BY OTHERS-CLIENT waives,releases and discharges ECS from leave the containers on Site. CLIENT is responsible for the retrieval,removal,transport and and against any claim for damage,injury or loss allegedly arising out of or in connection with disposal of such contaminated samples,and sampling process byproducts in accordance with errors,omissions,or inaccuracies in documents and other information in any form provided to ECS applicable law and regulation. by CLIENT or CLIENT's agents,contractors,or consultants,including such information that becomes 10.3 Unless explicitly stated in the Scope of Services,ECS will neither subcontract for nor arrange incorporated into ECS documents. 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, 6.0 CONCEALED RISKS-CLIENT acknowledges that special risks are inherent in sampling,testing or disposal of such substances,but CLIENT shall be solely responsible for the final selection of and/or evaluating concealed conditions that are hidden from view and/or neither readably methods and firms to provide such services. CLIENT shall sign all manifests for the disposal of apparent nor easily accessible,e.g.,subsurface conditions,conditions behind a wall,beneath a substances affected by contaminants and shall otherwise exercise prudence in arranging for lawful floor,or above a ceiling.Such circumstances require that certain assumptions be made regarding disposal. existing conditions,which may not be verifiable without expending additional sums of money or 10.4 In those instances where ECS is expressly retained by CLIENT to assist CLIENT in the disposal destroying otherwise adequate or serviceable portions of a building or component thereof. of Hazardous Materials,samples,or wastes as part of the Proposal,ECS shall do so only as Accordingly,ECS shall not be responsible for the verification of such conditions unless verification CLIENT'S agent(notwithstanding any other provision of this AGREEMENT to the contrary). ECS will can be made by simple visual observation.Client agrees to bear any and all costs,losses,damages not assume the role of,nor be considered a generator,storer,transporter,or disposer of and expenses(including,but not limited to,the cost of ECS'Additional Services)in any way arising Hazardous Materials. from or in connection with the existence or discovery of such concealed or unknown conditions. 0 ECS Proposal Number 49-22050-P Page 1 1 0 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE 10.5 Subsurface sampling may result in unavoidable cross-contamination of certain subsurface ECS by the CLIENT orjurisdiction(s)having authority over some or all aspects of the Project shall areas,as when a probe or excavation/boring device moves through a contaminated zone and links consist of ECS'inferences and professional opinions based on the limited sampling,observations, it to an aquifer,underground stream,pervious soil stratum,or other hydrous body not previously tests,and/or analyses performed by ECS at discrete locations and times.Such"certifications"shall contaminated,or connects an uncontaminated zone with a contaminated zone. Because sampling constitute ECS'professional opinion of a condition's existence,but ECS does not guarantee that is an essential element of the Services indicated herein,CLIENT agrees this risk cannot be such condition exists,nor does it relieve other parties of the responsibilities or obligations such eliminated. Provided such services were performed in accordance with the Standard of Care, parties have with respect to the possible existence of such a condition. CLIENT agrees it cannot CLIENT waives,releases and discharges ECS from and against any claim for damage,injury,or loss make the resolution of any dispute with ECS or payment of any amount due to ECS contingent allegedly arising from or related to such cross-contamination. upon ECS signing any such"certification." 10.6 CLIENT understands that a Phase I Environmental Site Assessment(ESA)is conducted solely 15.0 BILLINGS AND PAYMENTS 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. 15.1 Billings will be based on the unit rates,plus travel costs,and other reimbursable expenses No matter how thorough a Phase I ESA study may be,findings derived from its conduct are highly as stated in the Professional Fees section of the Proposal.Any Estimate of Professional Fees stated limited and ECS cannot know or state for an absolute fact that the Site is unaffected or adversely in these Terms shall not be considered as a not-to-exceed or lump sum amount unless otherwise affected by one or more Recognized Environmental Conditions. CLIENT represents and warrants explicitly stated. CLIENT understands and agrees that even if ECS agrees to a lump sum or not-to- that it understands the limitations associated with Phase I ESAs. exceed amount,that amount shall be limited to number of hours,visits,trips,tests,borings,or samples stated in the Proposal. 11.0 OWNERSHIP OF DOCUMENTS 15.2 CLIENT agrees that all Professional Fees and other unit rates shall be adjusted annually to 11.1 ECS shall be deemed the author and owner(or licensee)of all documents,technical reports, account for inflation based on the most recent 12-month average of the Consumer Price Index letters,photos,boring logs,field data,field notes,laboratory test data,calculations,designs,plans, (CPI-U)for all items as established by www.bls.gov when the CPI-U exceeds an annual rate of 2.0%. specifications,reports,or similar documents and estimates of any kind furnished by it[the 15.3 Should ECS identify a Changed Condition(s),ECS shall notify the CLIENT of the Changed "Documents of Service"]and shall retain all common law,statutory and other reserved rights, Condition(s). ECS and CLIENT shall promptly and in good faith negotiate an amendment to the including copyrights.CLIENT shall have a limited,non-exclusive license to use copies of the Scope of Services,Professional Fees,and time schedule. Documents of Service provided to it in connection with the Project for which the Documents of 15.4 CLIENT recognizes that time is of the essence with respect to payment of ECS'invoices,and Service are provided until the completion of the Project. that timely payment is a material consideration for this agreement. All payment shall be in U.S. 11.2 ECS'Services are performed and Documents of Service are provided for the CLIENT'S sole funds drawn upon U.S.banks and in accordance with the rates and charges set forth in the use. CLIENT understands and agrees that any use of the Documents of Service by anyone other Professional Fees. Invoices are due and payable upon receipt. than the CLIENT,it's licensed consultants and its contractors is not permitted. CLIENT further 15.5 If CLIENT disputes all or part of an invoice,CLIENT shall provide ECS with written notice agrees to indemnify and hold ECS harmless for any errors,omissions or damage resulting from its stating in detail the facts of the dispute within fifteen(15)calendar days of the invoice.CLIENT contractors'use of ECS'Documents of Service. agrees to pay the undisputed amount of such invoice promptly. 11.3 CLIENT agrees to not use ECS'Documents of Service for the Project if the Project is 15.6 ECS reserves the right to charge CLIENT an additional charge of one-and-one-half(1.5) subsequently modified in scope,structure or purpose without ECS'prior written consent. Any percent(or the maximum percentage allowed by Law,whichever is lower)of the invoiced amount reuse without ECS'written consent shall be at CLIENT'S sole risk and without liability to ECS or to per month for any payment received by ECS more than thirty(30)calendar days from the date of ECS'subcontractor(s). CLIENT agrees to indemnify and hold ECS harmless for any errors,omissions the invoice,excepting any portion of the invoiced amount in dispute.All payments will be applied or damage resulting from its use of ECS'Documents of Service after any modification in scope, to accrued interest first and then to the unpaid principal amount. Payment of invoices shall not be structure or purpose. subject to unilateral discounting or set-offs by CLIENT. 11.4 CLIENT agrees to not make any modification to the Documents of Service without the prior 15.7 CLIENT agrees that its obligation to pay for the Services is not contingent upon CLIENT'S written authorization of ECS.To the fullest extent permitted by law,CLIENT agrees to indemnify, ability to obtain financing,zoning,approval of governmental or regulatory agencies,permits,final defend,and hold ECS harmless from any damage,loss,claim,liability or cost(including reasonable adjudication of a lawsuit,CLIENT'S successful completion of the Project,settlement of a real estate attorneys'fees and defense costs)arising out of or in connection with any unauthorized transaction,receipt of payment from CLIENT'S client,or any other event unrelated to ECS provision modification of the Documents of Service by CLIENT or any person or entity that acquires or of Services. Retainage shall not be withheld from any payment,nor shall any deduction be made obtains the Documents of Service from or through CLIENT. CLIENT represents and warrants that from any invoice on account of penalty,liquidated damages,or other sums incurred by CLIENT. It the Documents of Service shall be used only as submitted by ECS. is agreed that all costs and legal fees including actual attorney's fees,and expenses incurred by ECS 12.0 SAFETY in obtaining payment under this Agreement,in perfecting or obtaining a lien,recovery under a 12.1 Unless expressly agreed to in writing in its Proposal,CLIENT agrees that ECS shall have no bond,collecting any delinquent amounts due,or executing judgments,shall be reimbursed by responsibility whatsoever for any aspect of site safety other than for its own employees.Nothing CLIENT. herein shall be construed to relieve CLIENT and/or its contractors,consultants or other parties 15.8 Unless CLIENT has provided notice to ECS in accordance with Section 16.0 of these Terms, from their responsibility for site safety. CLIENT also represents and warrants that the General payment of any invoice by the CLIENT shall mean that the CLIENT is satisfied with ECS'Services and Contractor is solely responsible for Project site safety and that ECS personnel may rely on the is not aware of any defects in those Services. safety measures provided by the General Contractor. 16.0 DEFECTS IN SERVICE 12.2 In the event ECS assumes in writing limited responsibility for specified safety issues,the 16.1 CLIENT,its personnel,its consultants,and its contractors shall promptly inform ECS during acceptance of such responsibilities does not and shall not be deemed an acceptance of active work on any project of any actual or suspected defects in the Services so to permit ECS to responsibility for any other non-specified safety issues,including,but not limited to those relating take such prompt,effective remedial measures that in ECS'opinion will reduce or eliminate the to excavating,trenching,shoring,drilling,backfilling,blasting,or other construction activities. consequences of any such defective Services.The correction of defects attributable to ECS'failure 13.0 CONSTRUCTION TESTING AND REMEDIATION SERVICES to perform in accordance with the Standard of Care shall be provided at no cost to CLIENT. 13.1 CLIENT understands that construction testing and observation services are provided in an However,ECS shall not be responsible for the correction of any deficiency attributable to CLIENT- effort to reduce,but cannot eliminate,the risk testing problems arising during is after construction or furnished information,the errors,omissions,defective materials,or improper installation of remediation. CLIENT agrees that the provision of such Services does not create a warranty or materials by CLIENT'S personnel,consultants contractors,or work not observed by ECS.CLIENT shall compensate ECS for the costs of correcting such defects. guarantee of any type. 13.2 Monitoring and/or testing services provided by ECS shall not in any way relieve the CLIENT'S 16.2 Modifications to reports,documents and plans required as a result of jurisdictional reviews contractor(s)from their responsibilities and obligations for the quality or completeness of or CLIENT requests shall not be considered to be defects. CLIENT shall compensate ECS for the construction as well as their obligation to comply with applicable laws,codes,and regulations. provision of such Services. 13.3 ECS has no responsibility whatsoever for the means,methods,techniques,sequencing or 17.0 INSURANCE_ECS represents that it and its subcontractors and subconsultants maintain procedures of construction selected,for safety precautions and programs incidental to work or Workers Compensation insurance,and that ECS is covered by general liability,automobile and services provided by any contractor or other consultant.ECS does not and shall not have or accept professional liability insurance policies in coverage amounts it deems reasonable and adequate. authority to supervise,direct,control,or stop the work of any contractor or consultant or any of ECS shall furnish certificates of insurance upon request.The CLIENT is responsible for requesting their subcontractors or subconsultants. specific inclusions or limits of coverage that are not present in ECS insurance package.The cost of 13.4 ECS strongly recommends that CLIENT retain ECS to provide construction monitoring and such inclusions or coverage increases,if available,will be at the expense of the CLIENT. testing services on a full time basis to lower the risk of defective or incomplete Work being 18.0 LIMITATION OF LIABILITY installed by CLIENT'S 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 18.1 CLIENTAGREESTO ALLOCATE CERTAIN RISKS ASSOCIATED WITH THE PROJECT BY LIMITING ECS'TOTALLIABIUTY construction quality may occur and that defective or incomplete work may result and not be TO CLIENTARISING FROM ECS'PROFESSIONAL LIABILITY,I.E.PROFESSIONAL ACTS,ERRORS,OR OMISSIONSAND FORANY detected by ECS'part time monitoring and testing. Unless the CLIENT can show that the error or AND ALLCAUSES INCLUDING NEGLIGENCE,STRICT LIABILITY,BREACH OF CONTRACT,OR BREACH OF WARRANTY,INJURIES, omission is contained in ECS'reports,CLIENT waives,releases and discharges ECS from and against DAMAGES,CLAIMS,LOSSES,EXPENSES,OR CLAIM EXPENSES(INCLUDING REASONABLE ATTORNEYS FEES)RELATINGTO any other claims for errors,omissions,damages,injuries,or loss alleged to arise from defective or PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW.THE incomplete work that was monitored or tested by ECS on a part time basis. Except as set forth in ALLOCATION IS AS FOLLOWS. the preceding sentence,CLIENT agrees to indemnify and hold ECS harmless from all damages, 18.1.1 If the proposed fees are$10,000 or less,ECS'total aggregate liability to CLIENT shall not costs,and attorneys'fees,for any claims alleging errors,omissions,damage,injury or loss allegedly exceed$20,000,or the total fee received for the services rendered,whichever is greater. resulting from Work that was monitored or tested by ECS on a part time basis. 18.1.2 If the proposed fees are in excess of$10,000,ECS'total aggregate liability to CLIENT shall 14.0 CERTIFICATIONS-CLIENT may request,or governing jurisdictions may require,ECS to not exceed$40,000,or the total fee for the services rendered,whichever is greater. provide a"certification"regarding the Services provided by ECS.Any"certification"required of 0 ECS Proposal Number 49-22050-P Page 12 0 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE 18.2 CLIENT agrees that ECS shall not be responsible for any injury,loss or damage of any nature, 23.2 CLIENT shall make no claim(whether directly or in the form of a third-party claim)against including bodily injury and property damage,arising directly or indirectly,in whole or in part,from ECS unless CLIENT shall have first provided ECS with a written certification executed by an acts or omissions by the CLIENT,its employees,agents,staff,consultants,contractors,or independent engineer licensed in the jurisdiction in which the Project is located,reasonably subcontractors to the extent such injury,damage,or loss is caused by acts or omissions of CLIENT, specifying each and every act or omission which the certifier contends constitutes a violation of its employees,agents,staff,consultants,contractors,subcontractors or person/entities for whom the Standard of Care.Such certificate shall be a precondition to the institution of any judicial CLIENT is legally liable. proceeding and shall be provided to ECS thirty(30)days prior to the institution of such judicial 18.3 CLIENT agrees that ECS'liability for all non-professional liability arising out of this proceedings. agreement or the services provided as a result of the Proposal be limited to$500,000. 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 19.0 INDEMNIFICATION to these Terms and the Services provided pursuant to the Proposal shall be the laws of the 19.1 Subject Section 18.0,ECS agrees to hold harmless and indemnify CLIENT from and against Commonwealth of Virginia,but excluding its choice of law rules. Unless otherwise mutually agreed damages arising from ECS'negligent performance of its Services,but only to the extent that such to in writing by both parties,CLIENT waives the right to remove any litigation action to any other damages are found to be caused by ECS'negligent acts,errors or omissions,(specifically excluding jurisdiction. Both parties agree to waive any demand for a trial byjury. 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 24.0 CURING A BREACH from and against any and all liability,claims,damages,demands,fines,penalties,costs and 24.1 A party that believes the other has materially breached these Terms shall issue a written expenditures(including reasonable attorneys'fees and costs of litigation defense and/or cure notice identifying its alleged grounds for termination.Both parties shall promptly and in good settlement)["Damages']caused in whole or in part by the negligent acts,errors,or omissions of faith attempt to identify a cure for the alleged breach or present facts showing the absence of such the CLIENT or CLIENT'S employees,agents,staff,contractors,subcontractors,consultants,and breach. If a cure can be agreed to or the matter otherwise resolved within thirty(30)calendar clients,provided such Damages are attributable to:(a)the bodily injury,personal injury,sickness, days from the date of the termination notice,the parties shall commit their understandings to disease and/or death of any person;(b)the injury to or loss of value to tangible personal property; writing and termination shall not occur. or(c)a breach of these Terms.The foregoing indemnification shall not apply to the extent such 24.2 Either party may waive any right provided by these Terms in curing an actual or alleged Damage is found to be caused by the sole negligence,errors,omissions or willful misconduct of breach;however,such waiver shall not affect future application of such provision or any other ECS. provision. 19.3 It is specifically understood and agreed that in no case shall ECS be required to pay an 25.0 TERMINATION 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 25.1 CLIENT or ECS may terminate this agreement for breach or these terms,non-payment,or a RECOMMENDS THAT CLIENT RETAIN LEGAL COUNSEL BEFORE ENTERING INTO THIS AGREEMENT TO EXPLAIN CLIENT'S failure to cooperate. In the event of termination,the effecting party shall so notify the other party RIGHTS AND OBLIGATIONS HEREUNDER,AND THE LIMITATIONS,AND RESTRICTIONS IMPOSED BY THIS AGREEMENT. In writing and termination Shall become effective fourteen(14)calendar days after receipt of the CLIENT AGREES THAT FAILURE OF CLIENT TO RETAIN SUCH COUNSEL SHALL BEA KNOWING WAIVER OF LEGAL COUNSEL termination notice. AND SHALL NOT BE ALLOWED ON GROUNDS OF AVOIDING ANY PROVISION OF THIS AGREEMENT. 25.2 Irrespective of which party shall effect termination,or the cause therefore,ECS shall 19.4 IF CLIENT IS A RESIDENTIAL BUILDER OR RESIDENTIAL DEVELOPER,CLIENTSHALL INDEMNIFYAND HOLD promptly render to CLIENT a final invoice and CLIENT shall immediately compensate ECS for HARMLESS ECSAGAINST ANYAND ALL CLAIMSOR DEMANDS DUETO INIURYOR LOSS INITIATED BY ONE OR MORE Services rendered and costs incurred including those Services associated with termination itself, HOMEOWNERS,UNIT-OWNERS,OR THEIR HOMEOWNER'S ASSOCIATION,COOPERATIVE BOARD,OR SIMILAR GOVERNING including without limitation,demobilizing,modifying schedules,and reassigning personnel. ENTITY AGAINST CLI E NIT WHICH RESULTS IN ECS BEING BROUGHT INTO THE DISPUTE. 26.0 TIME BAR TO LEGAL ACTION-Unless prohibited bylaw,and notwithstanding any Statute 19.5 IN NO EVENT SHALL THE DUTY TO INDEMNIFY AND HOLD ANOTHER PARTY HARMLESS UNDER THIS SECTION 19.0 that may provide additional protection,CLIENT and ECS agree that a lawsuit by either party INCLUDE THE DUTY TO DEFEND. alleging a breach Of this agreement,violation of the Standard of Care,non-payment of invoices,or 20.0 CONSEQUENTIAL DAMAGES 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 party knew,or should have known,of 20.1 CLIENT shall not be liable to ECS and ECS shall not be liable to CLIENT for any consequential the facts and conditions giving rise to its claim,and shall under no circumstances shall such lawsuit damages incurred by either due to the fault of the other or their employees,consultants,agents, be initiated more than three(3)years from the date of substantial completion of ECS'Services. 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 27.0 ASSIGNMENT-CLIENT and ECS respectively bind themselves,their successors,assigns, damages include,but are not limited to,loss of use and loss of profit. heirs,and legal representatives to the other party and the successors,assigns,heirs and legal 20.2 ECS shall not be liable to CLIENT,or any entity engaged directly or indirectly by CLIENT,for representatives of such other party with respect to all covenants of these Terms. Neither CLIENT any liquidated damages due to any fault,or failure to act,in part or in total by ECS,its employees, nor ECS shall assign these Terms,any rights thereunder,or any cause of action arising therefrom, agents,or subcontractors. in whole or in part,without the written consent of the other. Any purported assignment or transfer,except as permitted above,shall be deemed null,void and invalid,the purported assignee 21.0 SOURCES OF RECOVERY shall acquire no rights as a result of the purported assignment or transfer and the non-assigning 21.1 All claims for damages related to the Services provided under this agreement shall be made party shall not recognize any such purported assignment or transfer. against the ECS entity contracting with the CLIENT for the Services,and no other person or entity. 28.0 SEVERABILITY-Any provision of these Terms later held to violate any law,statute,or CLIENT agrees that it shall not name any affiliated entity including parent,peer,or subsidiary entity regulation,shall be deemed void,and all remaining provisions shall continue in full force and or any individual officer,director,or employee of ECS,specifically including its professional effect. CLIENT and ECS shall endeavor to quickly replace a voided provision with a valid substitute engineers and geologists. that expresses the intent of the issues covered by the original provision. 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 29.0 SURVIVAL-All obligations arising prior to the termination of the agreement represented by for the satisfaction of any such dispute or claim. Moreover,notwithstanding anything to the these Terms and all provisions allocating responsibility or liability between the CLIENT and ECS contrary contained in any other provision herein,CLIENT and ECS'agree that their respective shall survive the substantial completion of Services and the termination of the agreement. 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 30.0 TITLES;ENTIRE AGREEMENT provided hereunder. In the event CLIENT brings a claim against an affiliated entity,parent entity, 30.1 The titles used herein are for general reference only and are not part of the Terms and subsidiary entity,or individual officer,director or employee in contravention of this Section 21, Conditions. CLIENT agrees to hold ECS harmless from and against all damages,costs,awards,or fees(including 30.2 These Terms and Conditions of Service together with the Proposal,including all exhibits, attorneys'fees)attributable to such act. appendixes,and other documents appended to it,constitute the entire agreement between 22.0 THIRD PARTY CLAIMS EXCLUSION-CLIENT and ECS agree that the Services are performed CLIENT and ECS. CLIENT acknowledges that all prior understandings and negotiations are solely for the benefit of the CLIENT and are not intended by either CLIENT or ECS to benefit any superseded by this agreement. other person or entity.To the extent that any other person or entity is benefited by the Services, 30.3 CLIENT and ECS agree that subsequent modifications to the agreement represented by such benefit is purely incidental and such other person or entity shall not be deemed a third party these shall not be binding unless made in writing and signed by authorized representatives of both beneficiary to the AGREEMENT. No third-party shall have the right to rely on ECS'opinions parties. rendered in connection with ECS'Services without written consent from both CLIENT and ECS, 30.4 All preprinted terms and conditions on CLIENT'S purchase order,Work Authorization,or which shall include,at a minimum,the third-party's agreement to be bound to the same Terms other service acknowledgement forms,are inapplicable and superseded by these Terms and and Conditions contained herein and third-party's agreement that ECS'Scope of Services Conditions of Service. performed is adequate. 30.5 CLIENT's execution of a Work Authorization,the submission of a start work authorization 23.0 DISPUTE RESOLUTION (oral or written)or issuance of a purchase order constitutes CLIENT's acceptance of this Proposal and its agreement to be fully bound the foregoing Terms. If CLIENT fails to provide ECS with a 23.1 In the event any claims,disputes,and other matters in question arising out of or relating to signed copy of these Terms or the attached Work Authorization,CLIENT agrees that by authorizing these Terms or breach thereof(collectively referred to as"Disputes"),the parties shall promptly and accepting the services of ECS,it will be fully bound by these Terms as if they had been signed attempt to resolve all such Disputes through executive negotiation between senior representatives by CLIENT 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. 0 ECS Proposal Number 49-22050-P Page 13 0 DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE ECSSOUT-02 DLONG ,4coR0 CERTIFICATE OF LIABILITY INSURANCE DATE 6/9/2 D/YYYY) /9/2o20 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 CONTACT NAME: Ames&Gough PHONE 8300 Greensboro Drive (A/C,No,Ext): (703)827-2277 (A///C,No):(703)827-2279 Suite 980 ADDRESS:admin@amesgough.com McLean,VA 22102 INSURERS AFFORDING COVERAGE NAIC# INSURER A:Continental Casualty Company CNA)A XV 20443 INSURED INSURER B: ECS Southeast,LLP INSURER C: 1812 Center Park Drive,Suite D INSURER D: Charlotte,NC 28217 INSURER E INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: 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 TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS LTR INSD WVD MM DD YYY MM DD YYY COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ CLAIMS-MADE ❑ OCCUR DAMAGE TO RENTED PREMISES Ea occurrence $ MED EXP(Any oneperson) $ PERSONAL&ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ POLICYEl PE� LOC PRODUCTS-COMP/OP AGG $ OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident $ ANY AUTO BODILY INJURY Perperson) $ OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY Per accident $ HIRED L $ NON-OWNED PROPERTY DAMAGE AUTOS ONLY AUTOS ONLY Per accident $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED RETENTION$ $ WORKERS COMPENSATION PER OTH- AND EMPLOYERS'LIABILITY Y/N STATUTE ER ANY PROPRIETOR/PARTNER/EXECUTIVE ❑ E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ A Professional Liab. AEH288257904 6/15/2020 6/15/2021 Per Claim/Aggregate 2,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) RE: Orange County,NC Jail CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Orange Count THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 9 y ACCORDANCE WITH THE POLICY PROVISIONS. PO Box 8181 Hillsborough,INC 27278 AUTHORIZED REPRESENTATIVE ACORD 25(2016/03) ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID:CA518426-7674-44D9-B125-E4C45FD169AE ECSSOUT-01 MLEE ,4coR0 CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 11/18/2020 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 CONTACT Meg S. Lee, CIC The Andersen Insurance Group PHONE FAX 14026 Thunderbolt Place Suite 200 (A/C,No,Ext): (703)988-0900 102 (A/C,No): Chantilly,VA 20151 ADDRESS:meg@theandersengrp.com INSURERS AFFORDING COVERAGE NAIC# INSURER A:Cincinnati Insurance Company 10677 INSURED INSURER B:Federal Insurance Company 20281 ECS Southeast,LLP INSURER C:Bankers Standard Insurance Company 18279 14026 Thunderbolt Place Suite 500 INSURER D:ACE American Insurance Company 22667 Chantilly,VA 20151 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: 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 TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS LTR INSD WVD MM DD YYY MM DD YYY A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 CLAIMS-MADE X OCCUR ENP0219991 12/1/2020 12/1/2021 DAMAGE TO RENTED 500,000 X PREMISES Ea occurrence $ MED EXP(Any oneperson) $ 10,000 PERSONAL&ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 POLICY X PECOT- ❑ LOC PRODUCTS-COMP/OP AGG $ 2,000,000 OTHER: $ A AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT 1,000,000 Ea accident $ X ANY AUTO EBA0559255 12/1/2020 12/1/2021 BODILY INJURY Perperson) $ OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY Per accident $ X HIRED X NON-OWNED PROPERTY DAMAGE AUTOS ONLY AUTOS ONLY Per accident) ent $ B X UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 5,000,000 EXCESS LIAB CLAIMS-MADE 79891344 12/1/2020 12/1/2021 AGGREGATE $ 5,000,000 DED X RETENTION$ 0 $ C WORKERS COMPENSATION X PER OTH- AND EMPLOYERS'LIABILITY STATUTE ER 71764167 12/1/2020 12/1/2021 1,000,000 ANY PROPRIETOR/PARTNER/EXECUTIVE N/A X E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under 1,000,000 DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ A Commercial Umbrella EXS0220000 12/1/2020 12/1/2021 Occ/Aggr 10,000,000 D General Liability CPMG28192289 12/1/2020 12/1/2021 Inc/Aggr 9,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) Re:All Active Projects The Certificate Holder is included as an Additional Insured with respect to General Liability coverage where required by written contract.A Waiver of Subrogation is granted where required by written contract. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Orange Count North Carolina THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 9 y ACCORDANCE WITH THE POLICY PROVISIONS. Asset Management Services 131 West Morgan Lane Hillsborough,INC 27278 AUTHORIZED REPRESENTATIVE /l � ACORD 25(2016/03) ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD