AACE GENERAL CONDITIONS
<br />1 - Parties And Scope Of Work: Andersen ,\ndre Consulting I sngineers, Inc. (hereinafter
<br />referred to as "AACE") shall include said company, its individual professionals, particular
<br />division, subsidiary or affiliate performing the Work. "Work" means the specific
<br />geotechnical, analytical, testing, environmental or other service to be performed by AACI'.
<br />as set forth in .\A(;1 's prupusal, the Client's acceptance thereof, both incorporated herein
<br />by this reference, and these General Conditions. "Client" refers to the person or business
<br />entity ordering the Work to be dune by A,\(:1',. if the client is ordering the Work lin behalf
<br />of another, the Client represents and warrants that the Client is the duly iuduirized agent of
<br />said party for the purpose sit -ordering and directing said Work. Further, Client shall disclose
<br />any such agency relationship to AACIi in writing before the commencement of :\A(;Is's
<br />Work hereunder. Client agrees that,\ACIN's professional duties are specifically limited to the
<br />Work as set forth in AACI;'s proposal. The Client assumes sole responsibility for
<br />determining whether the quantity and the nature of the Work ordered by the Client is
<br />adequate and sufficient for the Client's intended purpose. Client shall communicate these
<br />General Conditions to each and every third party to whom the Client transmits any part of
<br />.\,\CI:'s Work. AACI is Work is for the exclusive use of Client, and its properly disclosed
<br />principal. in no event shall AACE have any duty or obligation to any third party The
<br />ordering of Work from ;\,\(;l i shall constitute acceptance of the terms of ,\.\C I is proposal
<br />and these General Conditions.
<br />2 - Scheduling of Work: if :\ACI: is required to delay commencement of the work, or if,
<br />upon embarking on its work, AACE is required to stop, delay or otherwise interrupt the
<br />progress of work as a result of changes in the scope of work requested by the client, to fulfill
<br />the requirements of third parties, interruptions in the progress of construction, or other
<br />causes beyond the exclusive reasonable control of AACE, additional charges will be
<br />applicable and payable by the Client.
<br />3 - Responsibility: A:\CC's work shall not include determining, supervising, or
<br />implementing the means, methods, techniques, sequences or procedures of construction.
<br />.\,\CI' shall not be responsible for evaluating, reporting or affecting job conditions
<br />concerning health, safety or welfare. AACIPs work or failure to perform same shall not in
<br />any way excuse any contractor, subcontractor or supplier from performance of its work in
<br />accordance with the contract documents.
<br />4 - Payment: Payment shall be due within 311 days after date of invoice. Interest at the rate
<br />of 18" s) per annum (or the highest rate allowable by laws) from 30 days after date of un ince
<br />to date payment is received \till be added to all amounts not paid within 3)) days after date
<br />of irvinee. ,\ll attorney fees and expenses associated with collection of past due invoices will
<br />be paid by Client
<br />5 - Right -of -Entry: Unless otherwise agreed, Client will furnish right -of -entry on the
<br />property for .\ACli to make the planned borings, surveys, and/or explorations. AACI: \till
<br />take reasonable precautions to minimize damage to the property caused by its equipment and
<br />sampling procedures, but the cost of restoration or damage which may result from the
<br />planned operations is nut included in the contracted amount. If Client desires to restore the
<br />property to its former condition, AACI will accomplish this and add the cost to its fee.
<br />6 - Damage to Existing Man-made Objects: It shall be the responsibility of the ( hvner
<br />sir his duly authorized representative to disclose the presence and accurate location of all
<br />hidden or obscure man-made objects relative to field tests, sampling, or boring locations.
<br />When cautioned, advised cur given data in writing that reveal the presence or potential
<br />presence of underground or overground obstructions, such as utilities, AA(;l i will give special
<br />instructions to its field personnel. As evidenced by your acceptance of this proposal, Client
<br />agrees to defend, indemnify and save harmless .\ACI,, from all claims, suits, losses, personal
<br />injuries, death and property liability resulting from subsurface conditions or damages to
<br />subsurface structures or man made objects, owned by Client or third parties, occurring in the
<br />performance of the proposed work, whose presence and exact locations were not revealed
<br />o
<br />AACE in writing, whether such claims or damages are caused in whole or in part by
<br />\,\C1 i, and agree to reimburse AA(:1 i for expenses in connection with an} such claims ur
<br />suits, including reasonable attorney's fees. Client's obligation to indemnify is limited to SI
<br />million per occurrence, which Client agrees bears a reasonable commercial relationship to the
<br />Work undertaken by .\.\CIi. Client further agrees that these general conditions arc a part of
<br />the Ws rk's specifications ,5r bid documents, if any.
<br />7 - Warranty and Limitation of Liability. ,\ACE shall perform services for (;hent in a
<br />professional manner, using that degree of care and skill ordinarily exercised by and consistent
<br />with the standards of competent consultants practicing in the same or a similar locality as the
<br />project. In the event any portion of the services fails to comply with this warranty obligation
<br />and ,\A(1i is promptly notified in \vrinng prior to one year after completion of such portion
<br />of the services, ,\.\CI'; will re -perform such portion of the services, or if re -performance is
<br />impracticable, .\ACE will refund the amount of compensation paid to A,\Cl i for such
<br />portion of the services.
<br />This warranty is in lieu of all other warranties No other warranty, expressed or implied,
<br />including warranties of merchantability and fitness for a particular purpose is made or
<br />intended by the proposal for consulting services, by furnishing an oral response of the
<br />findings made or by any representations made regarding the services included in this
<br />agreement. in no event shall Aa\Cli be liable for any special, indirect, incidental, or
<br />cnnscquennal loss sir delay or time -related damages. The remedies set forth herein are
<br />exclusive and the total liability of consultant whether in contract, tort (including negligence
<br />whether sole or concurrent), or otherwise arising out of, connected with or resulting from the
<br />services provided pursuant to this Agreement shall not exceed the total fees paid b} Client
<br />or S50,1)110.00, whichever is greater. Client may, upon written request received within five
<br />days of Client's acceptance hereof, increase the limit of AACIP's liability by agreeing to pay
<br />AACE an additional sum as agreed in writing prior to the commencement of A.\Cli's
<br />sen ices. This charge is not to be construed as being a charge for insurance of any type, but
<br />is increased consideration for the greater liability involved.
<br />Icor services involving or relating to pollution, it is further agreed that the Client shall
<br />indemnify and hold harmless AACE and their consultants, agents and employees from and
<br />against all claims, damages, losses and expenses, direct and indirect or consequential
<br />damages, including but not limited to fees and charges of attorneys and court and
<br />arbitration costs, arising out of sir resulting from the performance of the work by ,\
<br />or claims against ,\.\(;I': arising from the work of others. This indemnification provision
<br />extends to claims against ,\,\r;i which arise out of, are related to, or arc based upon, the
<br />disposal, discharge, escape, release or saturation of vapors, fumes, acids, alkalis, toxic
<br />chemicals, liquids, gases or any other material, irritant, contaminant or pollutant in or into
<br />the atmosphere or on, onto, upon, in or into the surface or subsurface. Client's obligation
<br />to indemnify is limited to $1 million per occurrence, which Client agrees bears a reasonable
<br />commercial relationship to the Work undertaken by AACI i. Client further agrees that these
<br />general conditions are a part of the Work's specifications or bid documents, if any.
<br />8 - Sampling or Testing Location. Unless specifically stated to the contrary, the fees
<br />included in this proposal do not include costs associated with professional land surveying
<br />of the site or the accurate horizontal and vertical locations of tests. Field tests or boring
<br />locations described in our report or shown on our sketches arc based on specific
<br />information furnished to us by others or estimates made in the field by our technicians.
<br />Such dimensions, depths or elevations should be considered as approximations unless
<br />otherwise stated in the report
<br />9 - Sample Handling and Retention : Generally test samples or specimens are consumed
<br />and/or substantially altered during the conduct of tests and AACI'., at its sole discretion,
<br />will dispose (subject to the following) of any remaining residue immediately upon
<br />completion of test unless required in writing by the Client to store or otherwise handle the
<br />samples. (a) NON I IAZARIOUS SAMPLES: At Client's written request, A.\Cli will
<br />maintain preservable test samples and specimens or the residue therefrom for thirty (30)
<br />days after submission of ,\,\CC's report to Client free of storage charges. After the initial
<br />30 days and upon written request, ,\ACE will retain test specimens or samples for a
<br />mutually acceptable storage charge and period of time. (b) HAZARDOUS OR
<br />P( )'I'IiN'I'I\Id.l'1IA'/.,\Rl)(/USS,\MIPI.I?S: In the event that samples contain substances
<br />or es nstituents hazardous or detrimental to human health, safety or the environment as
<br />defined by federal, state or local statutes, regulations, or ordinances ("Ilazardous
<br />Substances" and "I 1azardnus Constituents", respectively), AACE wwill, after completion of
<br />testing and at Client's expense: (i) return such samples to Client; (ii) using a manifest signed
<br />by Client as generator, will have such samples transported to a location selected by Client
<br />for final disposal. Client agrees to pay all costs associated with the storage, transport, and
<br />disposal of such samples. Client recognizes and agrees that ,\A1:1 i is acting as a bailee and
<br />at no time docs AACE assume title of said waste.
<br />10 - Discovery of Unanticipated Hazardous Materials: 1 Iazardous materials or certain
<br />types of hazardous materials may exist at a site where there is no reason to believe they
<br />could or should be present. AACE and Client agree that the discovery of unanticipated
<br />hazardous materials constitutes a changed condition mandating a renegotiation of the scope
<br />of work or termination of services. .\ACI1 and Client also agree that the discovery of
<br />unanticipated hazardous materials may make it necessary for ,\ACE to take immediate
<br />measures to protect health and safety. .\,\(;1'; agrees to notify Client as soon as practicable
<br />should unanticipated hazardous materials or suspected hazardous materials be encountered.
<br />Client encourages ,\ACI', to take any and all measures that, nn ,\ACI is professional opinion,
<br />are justified to preserve and protect the health and safety of :\ACIi's personnel and the
<br />public. Client agrees to compensate A.\CI': for the additional cost of working to protect
<br />employees' and the public's health and safety. In addition, Client waives any claim against
<br />A,\CIi, and agrees to defend, indemnify and sate AACE harmless from any claim or
<br />liability for injury or loss arising from ,\ACT's discovery of unanticipated hazardous
<br />materials or suspected hazardous materials. Client also agrees to compensate ,\ ACE for any
<br />nine spent and expenses incurred by ,\ACI' in defense of any such claim, with such
<br />compensation to be based upon ,\ACIi's prevailing fcc schedule and expense
<br />reimbursement policy relative to recover' of direct project costs.
<br />11- Joint and Several Liability: The concept of joint and several liability is basically this:
<br />When two or more parties arc considered responsible for causing injury or damage, any one
<br />of the parties may be made to provide compensation for as much as I00 of the damages
<br />assessed. When applied to hazardous materials projects, it is possible that the concept of
<br />joint and several liability could be construed to make AA(;11 partly or wholly responsible
<br />for damages created directly sir indirectly by the hazardous materials. Client agrees that it
<br />womid be unfair for AA(11 to be exposed to such an action, because :\ACI', had nothing
<br />whatsoever to do with the creation of the hazardous condition. Accordingly, Client waives
<br />any claim against AACI?, and agrees to defend, indemnify and save AACE harmless from
<br />any claim or liability for injury or 1,555 arising from application of a joint and several liability
<br />concept that would, in any manner, hold or seek to hold AACI', responsible for creating a
<br />hazardous condition or permitting one to exist. Client also agrees to compensate .\A(111
<br />for any time spent and expenses incurred by A,\CIS in defense of any such claim, with such
<br />compensation to be based upon ,\ACC's prevailing fee schedule and expense
<br />reimbursement policy relative to recovery of direct project costs.
<br />12 - Legal Jurisdiction The parties agree that any actions brought to enforce any pri revision
<br />of this Agreement shall only be brought in a court of competent jurisdiction located in St.
<br />Lucie County, 1'1onda. All causes of action arising out of A,\(;1;'s \Work shall be deemed
<br />to haw c accrued and the applicable statutes of limitation shall commence to run not later
<br />than either the date of substantial completion of the Work for acts or failures to act
<br />occurring prior to substantial completion, or the date of issuance of final payment for acts
<br />sir failures to act occurring after substantial completion of the Work.
<br />13 - Force Majeure: .\ACN shall not be held responsible for any delay or failure in
<br />performance of ainy part of this Agreement to the extent such delay or failure is caused by
<br />fire, flood, explosion, war, strike, embargo, government requirement, civil or military
<br />authority, acts of ( nod, act or omission of subcontractors, carriers, client or other similar
<br />causes beyond its control.
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