TERMS– Invoices for services will be submitted by Environmental Forensics Investigations, Inc. (EnviroForensics) on a monthly basis or when the work is completed. Invoices will be due within 60 days of receipt.
SAMPLES – All soil samples will be disposed of 30 days after issuance of our report unless CLIENT advises EnviroForensics otherwise. Upon receipt of written request, EnviroForensics will deliver samples to CLIENT at CLIENT’s expense, or EnviroForensics will store them for an agreed storage charge. If the samples contain hazardous materials, the samples shall be deemed CLIENT’s property at all times and CLIENT shall be responsible for the disposal of such samples.
BURIED UTILITIES – CLIENT will furnish to EnviroForensics information identifying the type and location of utility lines and other man-made objects beneath the site’s surface to the extent CLIENT has such information. EnviroForensics will take reasonable precautions to avoid damaging these man-made objects. CLIENT agrees to waive any claim against EnviroForensics and to defend, indemnify and hold EnviroForensics harmless from any claim or liability for injury or loss allegedly arising from EnviroForensics’ damaging underground utilities or other man-made objects to the extent that CLIENT had knowledge of them or which were not properly located on plans furnished to EnviroForensics. EnviroForensics shall contact IUPPS or other appropriate utility locating firms or entities to determine the location of underground utilities prior to commencement of work.
LIMITATIONS OF LIABILITY – CLIENT hereby agrees, that to the fullest extent permitted by law, EnviroForensics’ total liability to CLIENT, all consultants, contractors or subcontractors for any and all injuries, claims, losses, expenses or damages whatsoever, including without limitation, attorneys fees and costs, arising out of or in any way relating to the services covered by this AGREEMENT from any cause or causes including but not limited to EnviroForensics’ negligence, errors, omissions, strict liability, breach of contract, or breach of warranty shall not exceed the greater of the total amount paid by the CLIENT for the services of EnviroForensics under this contract or $250,000, whichever is greater. CLIENT is protected for errors and omissions by EnviroForensics’ insurance policy with limits of $1,000,000 per occurrence, $2,000,000 aggregate.
NO SPECIAL OR CONSEQUENTIAL DAMAGES – CLIENT and EnviroForensics agree that, to the fullest extent permitted by law, the parties will not be liable to each other for any special, incidental, or consequential damages whatsoever, whether caused by EnviroForensics’ negligence, errors, omissions, strict liability, breach of contract, breach of warranty or other cause or causes whatsoever.
INDEMNIFICATION – To the fullest extent permitted by law, CLIENT agrees to defend, indemnify and hold EnviroForensics, its agents, subcontractors and employees harmless from and against any and all claims, defense costs, including attorneys’ fees, damages and other liabilities arising out of or in any way related to EnviroForensics’ recommendations and reports generated while conducting the professional services concerning this AGREEMENT, EnviroForensics’ presence on the project property, or the presence, release or threatened release of asbestos, hazardous substances or pollutants on or from the project property, provided the CLIENT shall not indemnify EnviroForensics against liability for damages to the extent directly caused by the sole negligence or intentional misconduct of EnviroForensics, its agents, subcontractors or employees.
STANDARD OF CARE – Services performed by EnviroForensics under this AGREEMENT will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions. No other representation, expressed or implied, and no warranty or guarantee is included or intended in this AGREEMENT, or in any report, opinion, document or otherwise.
DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS – If pollutants are discovered that pose unanticipated risks while EnviroForensics is performing these services, it is hereby agreed that the scope of services, schedule, and the estimated project cost will be reconsidered and that this contract shall immediately become subject to renegotiation or termination. In the event that the AGREEMENT is terminated because of the discovery of pollutants posing unanticipated risks, it is agreed that EnviroForensics shall be paid for its total charges for labor performed and reimbursable charges incurred to the date of terminations of this AGREEMENT, including, if necessary any additional labor or reimbursable charges incurred in demobilizing. CLIENT also agrees that the discovery of unanticipated hazardous substances may make it necessary for EnviroForensics to take immediate measures to protect human health and safety. EnviroForensics agrees to notify CLIENT as soon as possible should unanticipated hazardous substances or suspected hazardous substances be encountered. CLIENT authorizes EnviroForensics to take measures that in EnviroForensics’ sole judgment are justified to preserve and protect the health and safety of EnviroForensics’ personnel and the public. CLIENT agrees to compensate EnviroForensics for the additional cost of working to protect employees and the public health and safety.
AQUIFER CONTAMINATION – Subsurface sampling may result in unavoidable contamination of certain subsurface areas, as when a probe or boring device moves through a contaminated area, linking it to an aquifer, underground stream, or other aqueous body not previously contaminated and capable of spreading hazardous materials off-site. Because nothing can be done to eliminate the risk of such an occurrence, and because subsurface sampling is a necessary aspect of the work which EnviroForensics may perform on CLIENT’s behalf, CLIENT waives any claim against EnviroForensics, and agrees to defend, indemnify and hold EnviroForensics harmless from any claim or liability for injury or loss which may arise as a result of alleged cross-contamination caused by sampling. CLIENT further agrees to compensate EnviroForensics for any time spent or expenses incurred by EnviroForensics in defense of any such claim, in accordance with EnviroForensics’ prevailing fee schedule and expense reimbursement policy.
DISPUTES – If a dispute arises out of or relating to this AGREEMENT or the breach thereof that cannot be settled through direct discussions, the parties agree to first endeavor to settle the dispute in an amicable manner by mediation under the Construction Industry Mediation Rules of the American Arbitration Association, or other similar organization. If a lawsuit is filed and legal or other costs are incurred, it is agreed that the prevailing party shall be entitled to recover all reasonable costs incurred in the defense and/or prosecution of the claim, including staff time at current billing rates, court costs, attorney’s fees and other claim-related expenses.