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ECS Pacific, Inc
<br />Terms and conditions of Service
<br />The professional services (the "Services") to be provided by ECS Pacific, Inc. ["ECS"] pursuant to the
<br />Proposal shall be provided in accordance with these Terms and Conditions of Service ('Terms"),
<br />Including any addenda as may be Incorporated or referenced In writing shall form the Agreement
<br />between ECS and Santa Ana Public Library (Client).
<br />1.0 INDEPENDENT CONSULTANT STATUS - ECS shall serve as an independent professional
<br />consultant to CLIENT for Service on the Project, identified above, and shall have control over, and
<br />responsibility for, the means and methods for providing the Services identified in the Proposal,
<br />including the retention of Subcontractors and Subconsultants.
<br />2.0 SCOPE OF SERVICES - It is understood that the fees, reimbursable expenses and time schedule
<br />defined In the Proposal are based on information provided by CLIENT and/or CLIENTS, agents,
<br />contractors and consultants ("Contractors"). CLIENT acknowledges that if this information Is not
<br />current, is incomplete or inaccurate, if conditions are discovered that could not be reasonably
<br />foreseen, or if CLIENT orders additional services, the scope of services will change, even while the
<br />Services are in progress.
<br />3.1 In fulfilling Its obligations and responsibilities enumerated In the Proposal. ECS shall be
<br />expected to comply with and Its performance evaluated in light of the standard of care
<br />expected of professionals In the Industry performing similar services on projects of like size
<br />and complexity at that time in the region (the "Standard of Care"). Nothing contained In the
<br />Proposal, the agreed -upon scope of Services, these Terms and Conditions of Service or any
<br />ECS report, opinion, plan or other document prepared by ECS shall constitute a warranty or
<br />guaranty of any nature whatsoever.
<br />3.2 CLIENT understands and agrees that ECS will rely on the facts learned from data gathered during
<br />performance of Services as well as those facts provided by the CLIENT and/or CLIENTS contractors
<br />and consultants. CLIENT acknowledges that such data collection Is limited to specific areas that
<br />are sampled, bored, tested, observed and/or evaluated. Consequently, CLIENT waives any and all
<br />claims based upon erroneous facts provided by the CLIENT, facts subsequently learned or regarding
<br />conditions in areas not specifically sampled, bored, tested, observed or evaluated by ECS.
<br />33 If a situation arises that causes ECS to believe compliance with CLIENTS directives would be
<br />contrary to sound engineering practices, would violate applicable laws, regulations or codes, or will
<br />expose ECS to legal claims or charges, ECS shall so advise CLIENT. If ECS' professional judgment
<br />is rejected, ECS shall have the right to terminate its Services in accordance with the provisions of
<br />Section 25.0, below.
<br />3.4 If CLIENT decides to disregard ECS' recommendations with respect to complying with applicable
<br />laws or regulations, ECS shall determine if applicable law requires ECS to notify the appropriate
<br />public officials. CLIENT agrees that such determinations are ECS'sole right to make.
<br />4.1 Where the Services requires ECS to penetrate a surface, CLIENT shall furnish and/or shall direct
<br />CLIENTS or CLIENTS Contractors to furnish ECS information identifying the type and location of
<br />utility lines and other man-made objects known, suspected, or assumed to be located beneath or
<br />behind the Site's surface. ECS shall be entitled to rely on such Information for completeness and
<br />accuracy without further investigation, analysis, or evaluation.
<br />4.2 "Hazardous Materials" shall include but not be limited to any substance that poses or may pose
<br />a present or potential hazard to human health or the environment whether contained in a product,
<br />material, by-product, waste, or sample, and whether it exists in a solid, liquid, semi -solid or gaseous
<br />form. CLIENT shall notify ECS of any known, assumed, or suspected regulated, contaminated, or
<br />other similar Hazardous Materials that may exist at the Site prior to ECS mobilizing to the Site.
<br />4.3 If any Hazardous Materials are discovered, or are reasonably suspected by ECS after its Services
<br />begin, ECS shall be entitled to amend the scope of Services and adjust Its fees or fee schedule to
<br />reflect any additional work or personal protective equipment and/or safety precautions required by
<br />the existence of such Hazardous Materials.
<br />5.0 INFORMATION PROVIDED BY OTHERS - CLIENT waives, releases and discharges ECS from and
<br />against any claim for damage, Injury or loss allegedly arising out of or in connection with errors,
<br />omissions, or inaccuracies in documents and other information in any form provided to ECS by
<br />CLIENT or CLIENTS Contractors, Including such Information that becomes incorporated Into ECS
<br />documents.
<br />6.0 CONCEALED RISKS - CLIENT acknowledges that special risks are inherent in sampling, testing
<br />and/or evaluating concealed conditions that are hidden from view and/or neither readably
<br />apparent nor easily accessible, e.g., subsurface conditions, conditions behind a wall, beneath a
<br />floor, or above a ceiling. Such circumstances require that certain assumptions be made regarding
<br />existing conditions, which may not be verifiable without expending additional sums of money
<br />or destroying otherwise adequate or serviceable portions of a building or component thereof.
<br />Accordingly, ECS shall not be responsible for the verification of such conditions unless verification
<br />can be made by simple visual observation. CLIENT agrees to bear any and all costs, losses, damages
<br />and expenses (including, but not limited to, the cost of ECS' additional services) in any way arising
<br />from or in connection with the existence or discovery of such concealed or unknown conditions.
<br />7.1 CLIENT warrants that it possesses the authority to grant ECS right of entry to the site for
<br />the performance of Services. CLIENT hereby grants ECS and its agents, subcontractors and/or
<br />subconsultants ("Subconsultantsy, the right to enter from time to time onto the property in order
<br />for ECS to perform its Services. CLIENT agrees to indemnify and hold ECS and its Subconsultants
<br />harmless from any claims arising from allegations that ECS trespassed or lacked authority to access
<br />the Site.
<br />7.2 CLIENT warrants that it possesses all necessary permits, licenses and/or utility clearances for
<br />the Services to be provided by ECS except where ECS' Proposal explicitly states that ECS will obtain
<br />such permits, licenses, and/or utility clearances.
<br />April 22, 2025
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<br />7.3 ECS will take reasonable precautions to limit damage to the Site and its improvements during
<br />the performance of its Services. CLIENT understands that the use of exploration, boring, sampling,
<br />or testing equipment may cause damage to the Site. The correction and restoration of such
<br />common damage is CLIENTS responsibility unless specifically included in ECS' Proposal.
<br />7.4 CLIENT agrees that it will not bring any claims for liability or for injury or loss against ECS
<br />arising from (i) procedures associated with the exploration, sampling or testing activities at the
<br />Site, III) discovery of Hazardous Materials or suspected Hazardous Materials, or (III) ECS' findings,
<br />conclusions, opinions, recommendations, plans, and/or specifications related to discovery of
<br />contamination.
<br />8.1ECS shall exercise the Standard of Care in evaluating client -furnished information as well as
<br />information readily and customarily available from public utility locating services (the "Underground
<br />Utility Information") in Its effort to identify underground utilities. The extent of such evaluations
<br />shall be at ECS' sole discretion.
<br />8.2 CLIENT recognizes that the Underground Utility Information provided to or obtained by ECS
<br />may contain errors or be incomplete. CLIENT understands that ECS may be unable to Identify the
<br />locations of all subsurface utility lines and man-made features.
<br />8.3 CLIENT waives, releases, and discharges ECS from and against any claim for damage, injury
<br />or loss allegedly arising from or related to subterranean structures (pipes, tanks, cables, or other
<br />utilities, etc.) which are not called to ECS' attention in writing by CLIENT, not correctly shown on
<br />the Underground Utility Information and/or not properly marked or located by the utility owners,
<br />governmental or quasi -governmental locators, or private utility locating services as a result of ECS'
<br />or ECS' Subconsultant's request for utility marking services made in accordance with local industry
<br />standards.
<br />9.1 Soil, rock, water, building materials and/or other samples and sampling by-products obtained
<br />from the Site are and remain the property of CLIENT. Unless other arrangements are requested
<br />by CLIENT and mutually agreed upon by ECS in writing, ECS will retain samples not consumed
<br />In laboratory testing for up to sixty (60) calendar days after the first issuance of any document
<br />containing data obtained from such samples. Samples consumed by laboratory testing procedures
<br />will not be stored.
<br />9.2 Unless CLIENT directs otherwise, and excluding those Issues covered in Section 10.0, CLIENT
<br />authorizes ECS to dispose of CLIENTS non -hazardous samples and sampling or testing by-products
<br />in accordance with applicable laws and regulations.
<br />10.1 When Hazardous Materials are known, assumed, suspected to exist, or discovered at the Site,
<br />ECS will endeavor to protect its employees and address public health, safety, and environmental
<br />Issues in accordance with the Standard of Care. CLIENT agrees to compensate ECS for such efforts.
<br />10.2 When Hazardous Materials are known, assumed, or suspected to exist, or discovered at the
<br />Site, ECS and/or ECS'subcontractors will exercise the Standard of Care in containerizing and labeling
<br />such Hazardous Materials in accordance with applicable laws and regulations, and will leave the
<br />containers on Site. CLIENT is responsible for the retrieval, removal, transport and disposal of such
<br />contaminated samples, and sampling process byproducts in accordance with applicable law and
<br />regulation.
<br />103 Unless explicitly stated in the Scope of Services, ECS will neither subcontract for nor arrange
<br />for the transport, disposal, or treatment of Hazardous Materials. At CLIENTS written request ECS
<br />may assist CLIENT In identifying appropriate alternatives for transport, off -site treatment, storage,
<br />or disposal of such substances, but CLIENT shall be solely responsible for the final selection of
<br />methods and firms to provide such services. CLIENT shall sign all manifests for the disposal of
<br />substances affected by contaminants and shall otherwise exercise prudence in arranging for lawful
<br />disposal.
<br />10A In those instances where ECS Is expressly retained by CLIENT to assist CLIENT in the disposal
<br />of Hazardous Materials, samples, or wastes as part of the Proposal, ECS shall do so only as CLIENTS
<br />agent (notwithstanding any other provision of this Agreement to the contrary). ECS will not assume
<br />the role of, nor be considered a generator, stoner, transporter, or disposer of Hazardous Materials.
<br />10.5 Subsurface sampling may result in unavoidable cross -contamination of certain subsurface
<br />areas, as when a probe or excavatlon/boring device moves through a contaminated zone and
<br />links it to an aquifer, underground stream, pervious soil stratum, or other hydrous body not
<br />previously contaminated, or connects an uncontaminated zone with a contaminated zone. Because
<br />sampling is an essential element of the Services indicated herein, CLIENT agrees this risk cannot
<br />be eliminated. Provided such services were performed in accordance with the Standard of Care,
<br />CLIENT waives, releases and discharges ECS from and against any claim for damage, Injury, or loss
<br />allegedly arising from or related to such cross -contamination.
<br />10.6 CLIENT understands that a Phase 1 Environmental Site Assessment (ESA) is conducted solely
<br />to permit ECS to render a professional opinion about the likelihood of the site having a Recognized
<br />Environmental Condition on, in, beneath, or near the Site at the time the Services are conducted.
<br />No matter how thorough a Phase I ESA study may be, findings derived from its conduct are
<br />highly limited and ECS cannot know or state for an absolute fact that the Site is unaffected or
<br />adversely affected by one or more Recognized Environmental Conditions. CLIENT represents and
<br />warrants that it understands the limitations associated with Phase I ESAs.
<br />11.0 OWNERSHIP OF DOCUMENTS
<br />11.1 ECS shall be deemed the author and owner (or licensee) of all documents, technical reports,
<br />letters, photos, boring logs, field data, field notes, laboratory test data, calculations, designs, plans,
<br />specifications, reports, or similar documents and estimates of any kind furnished by it [the
<br />"Documents of Service"] and shall retain all common law, statutory and other reserved rights,
<br />including copyrights. CLIENT shall have a limited, non-exclusive license to use copies of the
<br />Documents of Service provided to it in connection with its Project for which the Documents of
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