Agenda Package - 08-13-07 (Finance)

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other claim against Client and without thereby incurring any liability to Client, suspend or terminate this Agreement Termination shall not relieve Client of its obligation to pay amounts incurred up to termination, d. The Client's obligation to pay for the services performed under this Agreement is in no way contingent upon Client's ability to obtain financing, zoning, approval ofgoverrmental or regulatory agencies, final adjudication of a lawsuit in which ECS is not involved, or upon Client's successful completion of the project. No deduction shall be made from any invoice on account of penalty, liquidated damages or other sums withheld from payments to ECS. It is agreed that all expenses incurred by ECS in enforcing the Agreement or in obtaining liens, obtaining judgments or collecting any delinquent amounts due, including reasonable attorney's fees shall be recoverable from the Client. e- The fees quoted in this contract shall remain valid for a period of twelve (12) months from the date of contract. Thereafter. they shall be adjusted in accordance with the Avenge Consumer Price Index (CPI) for the last twelve (12) months. SECTION 4: RIGHT OF ENTRY a. Client hereby grants ECS and its subcontractors or agents the right to enter from time to time property owned by Client and/or other(s) in order for ECS to fulfill the scope of services included hereunder- Client understands that use of exploration equipment may cause some damage, the correction of which is not part of this Agreement. Client also understands that the discovery of certain hazardous conditions and/or taking preventive measures relative to these conditions may result in a reduction of the Property's value. Accordingly, Client waives any claim against ECS and its subcontractors or agents, and agrees to defend, indemnify and hold ECS harmless from any claim or liability for injury or loss allegedly arising from procedures associated with subsurface exploration activities or discovery of hazardous materials or suspected hazardous materials. In addition, Client agrees to compensate ECS for any time spent or expenses incurred by ECS in defense of any such claim with compensation to be based upon ECS's prevailing fee schedule and expense reimbursement policy. SECTION 5: SAMPLES a_ Soil. rock, water and/or other samples obtained from the Project site are the property of Client. ECS shall preserve such samples for no longer than sixty (60) calendar days after the issuance of any document that includes the data obtained from them, unless other arrangements are mutually agreed upon in writing. Should any of these samples be contaminated by hazardous substances or suspected hazardous substances, it is Client's responsibility to select and arrange for lawful disposal procedures, [hat is, procedures which encompass removing the contaminated samples from ECS's custody and transporting them to a disposal site. Client is advised that, in all cases, prudence and good judgment should be applied in selecting and arranging for lawful disposal procedures. SECTION 6: REPORTS AND OWNERSHIP OF DOCUMENTS a. ECS shall furnish three (3) copies of each report to Client. Unless otherwise stated in the Agreement, additional copies shall be famished at the rates specified in the Fee Schedule. With the exception of ECS reports to Client, all documents, including, but not limited to, original boring logs, field data, field notes, laboratory test data, calculations and estimates, and records of communication, are and remain the property of ECS. Client agrees that all reports and other work furnished to the Client not paid for in full will be returned to ECS upon demand and will not be used for design, construction, permits or licensing. SECTION 7: STANDARD OF CARE a. Services performed by ECS under this Agreement will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the Engineering profession currently practicing in the same locality under similar conditions. No other representation, express or implied, and no warranty or guarantee is included or intended in this Agreement, or in any report, opinion, document or otherwise. b. Any exploration, testing, surveys and/or analysis associated with the work will be performed by ECS for the Client's sole use to fulfill the purpose of this Agreement and ECS is not responsible for interpretation by others of the information developed. The Client recognizes that subsurface conditions at the Project site may vary from those encountered in borings. surveys or explorations, and the information and recommendations developed by ECS are based solely on the information available from such borings, surveys and explorations. 6 of9