HomeMy WebLinkAboutCSA #3 - Forensic Study ProposalCITY OF SEBASTIAN, FLORIDA
WORK AUTHORIZATION FORM
CONSULTANT SERVICE AGREEMENT (CSA)
Johnson, Mirmiran & Thompson (JMT)
3731 Oleander Avenue, Suite 108
Fort Pierce, FL 34982
Work Authorization No: CSA - # 3
Proiect Title: Forensic Testing and Analysis — Crab E Bills
IT IS AGREED to undertake the following work in accordance with the provisions of the Johnson, Mirmiran & Thompson (JMT)
Master Agreement entitled "Non -Exclusive Agreement for Continuing Professional Consulting Services Agreement - City Wide"
dated February 22, 2021.
Description of Assignment:
Johnson, Mirmiran & Thompson (JMT) along with their sub -consultant EFI Global will provide professional engineering services
associated with forensic testing, destructive testing and an air quality assessment of the current Crab E Bills location in the Working
Waterfront area.
The Scope of Services provided by JMT / EFI Global for this task shall include the following:
• Inspection of roofing materials, roof structure and roofing connections. Analyze roofing connections for current Florida
Building Code requirements,
• Inspect the structural wall system, wall connections and any and all areas of concern. Determine if components can be
repaired or require replacement to meet current FBC requirements,
• Destructive testing will be conducted to provide access to the wall structure. Destructive testing to remove interior wall
surfaces and such will be conducted by EFI Global, however they will not be responsible for repairs,
• Inspect and evaluate the flooring of the building for current Code standards,
• EFI Global will provide a full assessment and recommendations related to the structural integrity of the building,
• A visual inspection, the collection of non-culturable spore trap air samples, and the collection of comfort parameter data.
The comfort parameters include temperature, relative humidity, and carbon dioxide.
Basic of Compensation/Period of Services:
The above referenced description for CSA #3 and the work describe in the attached Fee Proposal dated January 11, 2022 will be
performed for a fee not to exceed $20,000.
AGREED:
VENDOR: CITY Of SEBASTIAN: %
Date: 1/18/2022 i���' Date:
David Stickles aul`E. Carlisle
Vice President City Manager
Johnson, Mirmiran & Thompson, Inc.
At st: / q p Approved as to Form and Content fefReliance
by the Ci of ebasti only
J nette Williams, MMC, City Clerk
Manyiy Arm J,., C�y.s'(. Cy Attorney
n / 1
January 11, 2022
Mr. Brian Benton, CPRP
Leisure Services Director
City of Sebastian
1225 Main Street
Sebastian, FL 32958
RE: Fee Proposal for Forensic testing and analysis — Crab E Bills
JMT Job No 20-03637-004
Client Ref No. RFQ 21-01 Continuing Engineering Services
Dear Mr. Benton:
Johnson, Mirmiran & Thompson (JMT) is pleased to submit this proposal for providing forensic testing or
destructive testing and air quality inspection of the current Crab E Bills location in the working waterfront
area. The scope of services will be provided by EFI Global. Their proposal is attached.
We understand that we will receive a written Notice -to -Proceed once you have reviewed and approved
the enclosed estimates. We anticipate a start date within 5 working days of Notice to Proceed, and
delivery of completed report ten (10) days from the field inspection.
If you have any questions or need further information, please do not hesitate to contact me at 954-233-
6563 or at dsticklesnc imLcom.
Very truly yours,
JOHNSON, MIRMIRAN & THOMPSON, Inc.
David Stickles, PSM
Vice President
Attachments: GFI Global Scope of Services
Q 3731 Oleander Avenue, Suite 108 Fort Pierce, FL 34982 9. (772)-048-4459 %w jmtcom
(0) efi global
January 11, 2022
Via email: DStickles@jmt.com
Johnson, Mirmiran & Thompson, Inc.
Mr. David Stickles
2400 East Commercial Blvd.
Suite 800
Fort Lauderdale, Florida 33308
RE: Proposal No: 01102022
Structural Engineering Evaluation and
Indoor Air Quality Inspection
Crab E. Bills
1540Indian River Drive
Sebastian, Florida 32958
Dear Mr. Stickles:
11602 Lake Underhill Road, Suite 140
Orlando, Florida 32825
Tel: 321-251-9091
Fax: 321-251-9099
Florida License #A 2600173
w .e0giobalxonn
This letter is in response to your request for a proposal to provide a Structural Engineering Evaluation
and an Indoor Air Quality Inspection at 1540 Indian River Drive located in Sebastian, Florida. We are
proposing the following specific Scope of Service.
Scope of Work:
Inspection of roofing materials, roof structure, and roofing connections. Analyze roofing
connections for current Florida Building Code (FBC) requirements. Inspect the structural wail
system and wall connections and any and all areas of concerns and determine if components can
be repaired or require replacement to meet current FBC requirements. Destructive testing will
be conducted to provide access to the wall structure system. Destructive testing to remove
interior wall surfaces and such will be conducted by EFI Global and will not be responsible for the
repairs. it is understood that the flooring of the building is comprised of different structural
systems and each will need to be inspected and evaluated for current Code standards. EFI Global
will provide a full assessment and recommendations related to the structural integrity of the
building.
o Please note, EFI Global will not provide design drawings, calculations, or means and
methods recommendations. Additionally, EFI Global will not provide an estimate for
repairs.
• Includes a visual inspection, the collection of non-culturable spore trap air samples, and the
collection of comfort parameter data. The comfort parameters Included temperature, relative
humidity (RH), and carbon dioxide (CO2).
Fee:
Based on our understanding of the scope of work, EFI proposes to conduct the Engineering Inspection
and an Indoor Air quality Inspection for the following fee:
Engineering and Indoor Air Quality Inspection:
Not to Exceed $20,000
Schedule:
The commencement of the project will be scheduled to begin at a mutually agreeable date following the
receipt of written authorization from the client. EFI will promptly schedule the site work upon receipt of an
executed version of this contract.
EFI anticipates that the field portion of the project will take 1 business day to complete, possibly 2 business
days depending on site access.
EFI will have a written report completed within 10 Business Days.
Contract Terms:
The terms and conditions for this work will be those contained in the document entitled "Professional
Service Agreement', which is attached hereto and made part of this agreement.
Authorization:
To authorize EFI to proceed with the services presented herein, please sign in the space provided on the
attached form titled "Professional Services Agreement" and return a signed original, to our office. You
may expedite this authorization by forwarding to our office by emailing a signed copy of the attached
form titled 'Professional Services Agreement' to rob.kohnke(@efielobal.com.
Closing:
EFI appreciates the opportunity to offer its services to Johnson, Mirmiran & Thompson, Inc. If you have any
questions concerning these services or require adjustments to our approach or schedule, please do not
hesitate to contact us.
Sincerely,
EFI Global, Inc.
leo6 164Y.4
Rob Kohnke
District Manager
Attachment
116021ake nnderhlll Road, Suite 140
Florida
e f i global FFax: 3212519099825
Florida License HA 2600123
wxav e0global.cum
Professional Services Agreement
This AGREEMENT is made by and between EFI Global (CONSULTANT), and Johnson, Mirmiran & Thompson, Inc.
(CLIENT).
Date: January 11, 2022 Proposal No: 01102022
Client: Johnson, Mirmiran &Thompson, Inc.
Address: 2400 East Commercial Boulevard, Suite 800
Fort Lauderdale, Florida 33308 Phone: 954-233-6563
Contact: Mr. David Stickles Facsimile:
EFI Contact: Mr. Rob Kohnke Phone: 813-484-5613
Facsimile: 321-251-9099
Project Location: Crab E. Bills, 1540 Indian River Drive, Sebastian, Florida 32958
Description: Structural Engineering Evaluation and Indoor Air Quality Assessment
Scope of Services: X As specified in EFI's proposal number 01102022 dated January 10, 2022
Compensation: X The CONSULTANT'S fee will be billed as time and expense, not to exceed $20,000.
Special Terms and Conditions: X None
As specified In Exhibit
A C C E P T E D in accordance with the terms and conditions and scope of work outlined In EFI's proposal
number 02102022 dated January 20, 2022:
CLIENT: Johnson, Mirmiran &Thompson, Inc.
CONSULTANT: EFI Global (EFI)
By:
Hy:
Name:
Name: Rob Kohnke
Title:
Title: District Manager
Date:
Date:
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STANDARD TERMS AND CONDITIONS
THE STANDARD TERMS AND CONDITIONS ("Temis') are applicable by and between EFI Global, Inc., ("EFI'), or any of its
subsidiary companies, and the Party assigning the Services ("Client") for new Assignments ('Assignments"). Any Firm or
Attorney, making an Assignment, agrees that it is acting on behalf of Client, and is authorized by Client to retain EFI subject
to the Terms. If a Firm or Attorney makes an Assignment to EFI without authority from Client to do so, then the Firm or
Attorney shall be responsible for any fees or expenses incurred by EFI relative to the Assignment.
BY ACCEPTING SERVICES FROM EFI CLIENT AGREES TO THE TERMS CONTAINED HEREIN. EFI RESERVES THE
RIGHT TO IMMEDIATELY TERMINATE ITS SERVICES IF THE TERMS CONTAINED HEREIN ARE BREACHED BY THE
CLIENT OR ANY FIRM OR ATTORNEY.
1. SCOPE OF (SERVICES— EFI, as an independent contractor agrees to perform the services described in its proposal, or in
the absence of a proposal, as defined in writing and approved by EFI and Client ("Services") and in accordance with the
following terms and conditions.
2. DEFINITIONS. These terms will have the following meanings if applicable and when used in this Agreement:
a. Claims - All actions, suits, arbitration's, administrative proceedings, demands and claims for any and all damages,
injunctive or any other relief based upon any cause of action whatsoever.
b. Contaminants -Asbestos, toxic or any hazardous constituents.
c. Indemnitees - EFI, Its parent, subsidiaries, affiliates and subcontractors, including their respective officers, directors,
employees, principals, partners, agents, successors, and assigns.
d. Liabilities - All liabilities, damage, losses, costs, expenses, settlements, judgments, awards, and governmental
penalties and sanctions, including reasonable attorneys' and experts' fees, including those attributable to bodily injury
(including death), personal injury and property damage.
e. Materials— Used storage tanks or any associated equipment, contaminated soils or materials,
f. Said— Specimens or representative pieces, segments or the like and/or the residue therefrom.
g. Pre-Exist!rT Waste is any hazardous or non -hazardous wastes, substances or Materials existing on the Site prior to
the date that the Services are initiated.
h. Wastes -Surpluses, by-products, residues and the like and/or fluids produced by the Services.
1. Work Product — All documents, including but not limited to, reports, notes, drawings, specifications, laboratory test
data, and other information prepared by EFI.
j. Undedvina Material —AII documents provided by Client to EFI to be used by EFI in generating Work Product.
3. INVOICING AND PAYMENT - Invoices will be issued monthly and will include supporting documentation, as appropriate.
Payments are due at the address appeanng on the invoice within thirty (30) days of Invoice date. In addition, EFI may, after
giving seven (7) days written notice to Client, suspend Services without liability until the Client has paid in full all amounts
due EFI on account of Services rendered and expenses incurred, including interest on past due invoices or terminate
Services without liability. If Client reasonably objects to any or all portions of the invoice, Client shall notify EFI in writing
within 10 days of receipt of invoice, give reason for objection and pay all undisputed amounts within the thirty (30) day
period. In the event that EFI places Client's account in the hands of an attorney for collection, Client agrees to pay EFI all
fees and expenses, including attorneys' fees, court costs, and expert fees, necessitated thereby. Additional compensation
terns follow:
a. Non -testimonial Ex rt Services. If the Services for an Assignment change in scope to that of litigation services
and/or testimonial expert services, the Assignment shall then be contracted separately for the new scope of work.
It. Overnight Stays. For any work performed which requires an overnight stay, a minimum of eight (8) hours will be billed
to Client, regardless of actual time incurred.
c. Billing Segments. All time will be billed in one -tenth hour segments (e.g., 1.20 hours), and any portion of segment
utilized will be billed as if the entire segment has been utilized.
d. Overhead and Costs. Vehicle mileage, photograph costs, copying charges, equipment usage, or other office
expenses will be billed at fifteen percent of the Services. All travel expenses (e.g., airfare, car rental, lodging, parking,
tolls) will be billed at actual cost to Client. All external laboratory costs or equipment usage costs incurred by EFI will be
billed at actual cost to Client.
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e. Additional Ex��arts. In the event that EFI deems it necessary to utilize the services of additional experts, Client will be
consulted prior to the engagement of these individuals.
f. Evidence Storage. Invoices will be sent periodically for payment for evidence storage, handling and processing.
Evidence will not be released or transferred until all invoices are paid In full.
g. Withdrawal. EFI reserves the right to suspend work on, or withdraw from, any Assignment In which payment is past
due.
4. ACCESS. Client grants or shall obtain for EFI and its subcontractors authority to enter the property upon which EFI 's
Services am to be performed ("Site"), at Client's expense.
The Services do not include supervision or direction of the means, methods or actual work of contractors, other professionals
or consultants not retained by EFI. The presence of EFI's representative will not relieve any such contractor, other
professional or consultant of its responsibility to perform its work and services in accordance with Its contractual and legal
obligations and in conformity with the plans and specifications for the Assignment. Client agrees that each contractor or
subcontractor not retained by EFI shall be solely responsible for: (i) working conditions on the Site; (ii) security and safety of
persons and property during the performance of its work; (III) compliance with OSHA regulations; and (iv) providing any and
all safety equipment necessary for the protection of its personnel. EFI's monitoring of any contractors or any subcontractors
procedures is not intended to include a review of the adequacy of such contractofa or subcontractor's safety measure, on or
near the Site. It is agreed that EFI is not responsible for safety or security at the Site, other than for EFI's employees, and
that EFI does not have the right or duty to stop the work of others.
5. CLIENT DISCLOSURE. Client understands that EFI is relying upon the completeness and accuracy of information
supplied to it by Client and others in connection with the Services without independent verification. Client agrees to advise
EFI of the existence of any hazardous substances, wastes or conditions affecting the Site or the Services to be performed
hereunder. EFI does not assume control or responsibility for the Site or the person(s) in charge of the Site, or undertake the
responsibility for reporting to any federal, state or local agencies any conditions at the Site that may present a potential
danger to health, safety, or the environment. Client agrees to notify the appropriate federal, state or local agencies as
required by law, or otherwise to disclose in a timely manner, any information that may be necessary to ensure Site safety
and to prevent damage to health and/or the environment. Client acknowledges that EFI may be required to make such
disclosures if Client fails to do so and agrees to hold EFI harmless therefor.
6. STANDARD OF SERVICES AND WARRANTY. EFI will perform the Services using that degree of skill and care ordinarily
exercised under similar conditions by reputable members of EFts profession practicing in the same or similar locality at the
time of performance. NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE OR INTENDED AND THE SAME ARE
SPECIFICALLY DISCLAIMED.
Given the difficulty in predicting the environmental and/or physical condition of a site based upon limited sampling and
investigative activity, Client recognizes that any oral statements, opinions and conclusions or written statements, opinions
and conclusions contained in reports and other documents prepared and/or issued by EFI are only meant to give
approximations of the condition of the Site limited to the particular contammant(s) and/or Issues actually targeted by EFI's
Investigation and the portions of the Site actually investigated, sampled or tested by EFI.
Client shall not be entitled to assert a claim against EFI based on any theory of professional negligence or violation of the
standard of cars unless and unfil Client has obtained the written opinion from a licensed, independent and reputable
engineering and/or environmental professional, as appropriate for the Services in question, that EFI has violated the
standard of care applicable to EFI's performance of those Services under this Agreement. Client shall promptly provide such
independent opinion to EFI and the parties shall endeavor in good faith to resolve the claim within 30 days.
7. WORK PRODUCT. All Work Product shall be EFI's sole property, as author and owner, and EFI hereby reserves and
shall retain all common law, statutory and other rights thereto, including copyrights. EFI will fumish Client with the agreed -
upon number of written reports and supporting documents for Client's exclusive internal use and reliance and for regulatory
submittal in connection with the Site, the Assignment or the Services; provided, that Client may permit members of its design
team to use the Work Product solely for the design of the Assignment for which it was intended. Client acknowledges that
the Work Product is intended for the exclusive use and benefit of, and may be relied upon only by Client.
If Client wishes to distribute any Work Product to any third party for reliance by a third party, Client and the third party must
first contact EFI and obtain written authorization prior to disclosure or distribution. EFI shall not be liable for any Claims or
Liabilities resulting from or connected with such release for disclosure and Client shall indemnify, defend and hold EFI
harmless from any and all such Claims or Liabilities. EFI makes no representation as to the suitability of any Work Product
for any such third party's purposes. Client acknowledges that a request for EFI to release any Work Product to a third party
creates a potential conflict of interest and agrees that any such request shall serve as a waiver by Client of any such conflict
of interest.
Any unauthorized distribution, publication, use or reuse of any Work Product shall be at Client's and recipient's sole risk and
without liability to EFI. To the maximum extent permitted by applicable law Client agrees to defend, indemnify and hold
Indemnitees harmless from and against all Claims and Liabilities related to or arising from any unauthorized distribution,
publication, use or muse of the Work Product.
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Upon Client's request, Work Product may be provided on electronic media; however, the written copy retained by EFI shall
be the official document. EFI makes no representation or warranty, express or implied that the electronic copy Is accurate or
complete. Any modifications of the electronic copy by Client shall be at Client's sole risk and without liability to EFI. The
electronic copy is subject to all conditions contained in this Agreement.
EFI will store Work Product in its existing state for a period of no more than three years from the completion of the
Assignment. Upon expiration of the three year pared, Client shall select one of the following options.
a. Require EFI to return all stored Work Product to Client at Client's expense, or
b. Require EFI to continue storing Work Product at the then prevailing rate and expense method of billing
If at the end of the three-year period Client has not notified EFI in writing of Its selection of one of the options set forth in a or
b above, it is agreed that EFI may dispose of the Work Product without liability.
Client further acknowledges that: (1) the Work Product may be based in whole or in part on facts and/or assumptions
provided to, but not independently verified by, EFI; (ii) the Work Product will reflect EFI's findings as to conditions that
existed at the time the Services were performed and may not reflect conditions at a later time; and (iIi) EFI makes no
representations as to such conditions subsequent to the time the Services were performed or with rasped to any facts or
assumptions provided to, but not independently verified by, EFI.
8. INSURANCE. EFI shall maintain insurance coverage meeting at a minimum the following: (1) Workers' Compensation
and Employers Liability Insurance in accordance with requirements of the state In which the Services are being performed;
(it) Commercial General Liability insurance with a limit of $1,000.000 per occurrence and in the aggregate for bodily injury
and property damage; and (III) Professional Liability (errors and omissions) Insurance with a limit of $1,000,000 per
occurrence and in the aggregate. The parties agree that, as requested by Client, these Terms may be amended by email to
include additional insureds under its policies idenfified above. Client must provide the full legal name of each additional
insured to EFI in an email requesting the entity be added as an additional insureds Identified and Identifies the Proposal to
which these Terms are attached.
9. CHANGES. Notwithstanding any other provisions of the Agreement to the contrary, EFI shall be entitled to additional
compensation for work performed under this Agreement in the event that EFI experiences any increases in costs due to
changes in the scope of work from that included in EFI's anginal proposal or for additional work requested by Client, or
changes in the manner or method of performance of work or due to changes in schedule or circumstances not solely caused
by EFI. EFI shall be compensated for all such additional work either (1) as previously agreed in writing by the parties; or (2)
on a time and materials basis in accordance with EFI's then current standard commercial rates.
10. INDEMNITY By EFI. EFI shall indemnify, defend and hold harmless Client, its officers, directors, agents employees and
affilia and parent companies against Claims or Liabilities of third parties (including reasonable attomeys' fees and costs of
defense) for personal injury, disease or death, and damage of property arising during the performance of Services to the
extent caused by the negligence or willful misconduct of EFI. EFI's aggregate liability under the above Indemnity shall not
exceed the recoveries under the types and limits of insurance set forth in Section 8 of this contract and Client agrees to
release, defend and indemnify EFI from and against all further liability under the above indemnity arising from such Services.
11. REMEDIES. Neither party, nor their parent, affiliated or subsidiary companies, nor the officers, directors, agents,
employees or contractors of any of the foregoing, shall be liable to the other in any action or claim for incidental, indirect,
special, collateral, consequential, exemplary or punitive damages arising out of or related to the Services, including without
limitation, loss of profits, loss of opportunity, loss of production, or loss of use. Any protection or limitation against liability for
any losses or damages afforded any individual or entity by this Agreement shall apply whether the action in which recovery
of damages is sought is based upon contract, tort (including, to the greatest extent permitted by law, the sole, concurrent or
other negligence, whether active or passive, and strict liability of any protected individual or entity), statute or otherwise. To
the extent permitted by law, any statutory remedies inconsistent with these terms are waived.
12. ENVIRONMENTAL CONDITIONS. Client shall provide (or cause the Site owner to provide) EFI with the identity and
location of all subsurface facilities and obstructions on the Site. Client agrees to waive any Claims or Liabilities against EFI
and to indemnify, defend and hold EFI harmless from any Claims or Liabilities for damages to subsurface facilities or
obstructions that are not accurately identified or located by Client or others. Client assumes responsibility for air, subsurface
andfor ground pollution and environmental Impairment from toxic substances or Contaminants existing at the Site and shall
indemnify and defend EFI from any Claims or Liabilities of third parties related thereto, except where such Claims or
Liabilities are caused by the sole negligence or willful misconduct of EFI.
13. FORCE MAJEURE. EFI shall have no liability for any failure to perform or delay in performance of the Services caused
by circumstances beyond its reasonable control, including, but not limited to, strikes, dots, wars, floods, fires, explosion, acts
of nature, acts of government, labor disturbances, or delays in transportation.
14. LIMITATIONS OF LIABILITY. Except as provided in Section 10 of this contract and to the greatest extent allowed by
law, Client agrees that EFI's aggregate liability to Client and others. Inclusive of secondary clients, for any and all injuries,
Claims or Liabilities, of whatever kind or character, arising out of or in any way related to this Agreement, the Services or the
Site, shall be limited to the lesser of $100,000 or the total amount of compensation received by EFI hereunder. The parties
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agree that in any dispute over the terms of this Agreement or any Issue arising under this Agreement, they will make a good
faith effort to resolve the matter without litigation. Such efforts shall Include, but not be limited to, a meeting(s) attended by
each party's representatives) empowered to resolve the dispute. The parties agree that before either party commences an
action against the other parry, they will consider the use of alternate forms of dispute resolution, Including mediation (or
arbitration if both parties agree to arbitrate the dispute). Pending the outcome of such dispute resolution, both parties shall
take immediate steps to mitigate any damages. Until such time as the dispute Is resolved, EFI reserves the right to suspend
its Services hereunder and shall so notify Company.
15. OW p1 -WS5 1p q� 2V T]E. Upon request, EFI shall assist Client in the proper handling, storage, transportation and/or
disposal o e re --xi ng Waste in accordance with all applicable federal, state and local laws and regulations. Client shall
provide appropriate disposal idenfification numbers, select the disposal site(s) and sign all required manifests, disposal
contracts and other documentation necessary to allow EFI to complete the Services in a timely manner. Client agrees to look
solely to the disposal facility and/or transportation concern for any damages arising from improper transportation or disposal
of the Pre-Exisfing Waste. In no event shall EFI take title to or be liable for disposal or remedlatlon costs associated with Pre -
Existing Wastes.
16. SAMPLE AND WASTE DISPOSAL. Samples generally are consumed or altered during testing and are disposed of
promptly upon completion of the tests. If Client wishes EFI to retain any Samples, at Client's written request, EFI will use its
best efforts to retain preservable Samples, but only for a mutually acceptable time and for an additional charge. EFI reserves
the right to refuse storage of any Samples. Client agrees that EFI is not responsible or liable for loss of Samples retained in
storage. If Client requests EFI to containedze Wastes, Client will provide a secure storage location at or near the Site to
prevent tampering with the Wastes. Non- hazardous Wastes will be disposed of by EFI for an additional charge at an
appropriately licensed facility.
In the event that Samples or Wastes contain Contaminants, EFI will either (i) return the Samples or Wastes to Client for
proper disposal or (11) using a manifest signed by Client as generator and for an additional fee, have the Samples or Wastes
transported to a location selected by Client for final disposal. In such event, Client acknowledges and agrees that EFI will be
acting solely as agent for Client and will at no time assume title, constructive or express, to any Samples or Wastes. Client
agrees to pay all costs associated with the storage, transport, and disposal of Samples and Wastes.
Should EFI be requested as part of the Services to hire a subcontractor for the removal of any Materials from the Site, title to
the Materials will remain with Client, and EFI will act solely as an agent for Client in arranging for and coordinating the
removal and transport of the Materials by the subcontractor. Al no time will EFI or the subcontractor take title to the
Materials, and all manifests incidental to such Services shall be executed by Client. If Client wishes EFI to execute the
manifests, Client shall provide written authorization for EFI to sign solely as an agent for Client, and Client hereby expressly
agrees to remain the sole generator of such Materials. To the maximum extent permitted by applicable law, Client shall
defend, indemnify and hold Indemnities harmless from and against all Claims or Liabilities resulting from the rendering of
Services as set forth in this Section 16, except to the extent such Liabilities and/or Claims are determined to have been
caused solely by the negligence of, or the willful violation of any applicable environmental law by EFI.
17. TERM AND TERMINATION. The term of EFI's engagement will continue until the earlier of the completion of the
Services or termination by either party. Either party may terminate this Agreement without cause upon seven (7) days' prior
written notice. In such event, Client shall take possession, to the extent applicable, of the Site and the materials and
equipment paid for and belonging to Client, and EFI shall be paid for all Services performed to the sate of termination. In the
event Client requests termination without cause, EFI shall also be paid all reasonable expenses and costs incurred in
Assignment close out. This Agreement will terminate automatically and without notice upon the insolvency of, or upon the
filing of a bankruptcy petition by or against Client.
18. OPINIONS OF COST. If included in the Services, EFI will provide opinions of cost for Installation of materials,
remediation or construction based upon EFI's experience on similar projects. However, such opinions are not intended for
use in firm budgeting or negotiation unless specifically agreed otherwise in advance by EFI in wilting. Client understands the
actual cost of work depends on many factors beyond EFI's control and may vary significantly from EFI's opinion.
19. LITIGATION SUPPORT - In the event that EFI's employees are requested by Client or compelled by subpoena or
otherwise by any parry to give expert or witness testimony or otherwise participate in a judicial or administrative proceeding
involving the Client at any time, Client shall compensate EFI at 125% of the Billing Rate, including preparation time, and shall
reimburse EFI for all out of pocket costs.
20. PARTICIPATION AGREEMENT
Attempts at expert preclusion are now a frequent practice in litigation, and preclusion can have a substantive Impact on an
expert's professional career and economic interests. Therefore, EFI requires that it be Involved In responding to efforts to
preclude EFI experts, and Client agrees to the following:
a. Advise. Client must advise EFI Immediately upon the fling of any motion to exclude, motion to preclude, motion In
limine, motion related to F.R.E. 702 or any similar state evidentiary rule, or any or Daubert-style motion challenging a
EFI expert. Client will advise EFI as to all deadlines related to any written opposition to any motion or any hearing
related to any challenge. Any failure by Client to advise EFI of the filing of such a motion at least ten (10) days prior to
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the deadline for the fling of a response to such a motion shall be considered a material breach of these Terms, and EFI
will then have the right to immediately terminate the Assignment in the event of such a breach.
b. Assistance. Client agrees to utilize EFI's assistance in developing any written opposition to any such written motion
c. Private Counsel. Client agrees that EFI will have the right to select private counsel to prepare any written opposition
to such a motion and/or to represent EFI in any formal hearing related to said motion. Client further agrees to utilize all
reasonable and appropriate means to obtain the pro bee vice admission of counsel selected by EFI. Client further
agrees that the fees and costs of any private counsel retained by EFI in conjunction with any such motion or any such
hearing will be paid by Client as an expense incurred by EFI pursuant to these Terms.
d. Decision or Ruling. Client agrees to advise EFI of any Decision or ruling on any such motion, and to provide EFI a
copy of said decision if a written decision is issued.
21. EVIDENCE STORAGE
In connection with Services rendered, EFI may be in possession of and store evidence held on behalf of and at the request
of Client or Client's agent(s). Evidence is held in a secure storage facility and storage fees will be charged at the rates as
invoiced by EFI. Evidence stored at EFI's facility is at the risk of Client. EFI does not maintain and will not obtain Insurance
on the evidence. Client is solely responsible for determining the value of the evidence and obtaining the appropriate
insurance coverage.
Retrieval, handling, packaging, shipping, inspection, storage, testing or related activities performed by EFI may result in
damage or changes to the evidence. EFI will perform all testing and activities involving evidence with the appropriate
standard of care owed to Client. EFI is not responsible for the loss of or any damage to evidence from any cause, including
damage resulting from alteration, modifications or changes to evidence.
Client waives any and all claims against EFI, its employees, directors, officers, and agents including any subrogation rights
on the part of Client's insurers for any loss or damage to evidence from any cause. Client agrees to indemnify and hold
harmless EFI from any and all liability or claims associated with evidence retrieval, handling, packaging, shipping, inspection,
storage, testing and related activities performed on behalf of Client or Client's agents).
EFI has the right to refuse the acceptance any storage of evidence. In the event storage fees owed by Client remain unpaid
for a period of 90 days or longer from the date of the evidence storage invoice, and no disposal or transmittal instructions
have been received from Client by EFI, EFI shall provide written notice to Client of its Intent to dispose of evidence. If no
disposal or transmittal instructions by Client to EFI have been made within 60 days of mailing the notice of intent to dispose
evidence, EFI has the fight to dispose of evidence without further notice to Client. Client waives any and all claims against
EFI, and agrees to indemnify and hold harmless EFI from liability and claims, including any subrogation rights on the part of
the Client's insurers, arising out of the disposal of evidence as a result of non-payment of storage fees.
EFI only accepts receipt of the evidence under the terns of this provision
22. ENTIRE AGREEMENT. The terns of this Agreement shall be deemed accepted by Client at the earlier of (1) EFI's
Initiation of Services at the verbal or written direction of Client or (2) Client's written agreement to be bound by these terms.
This Agreement constitutes the entire understanding between the parties. Any waiver, modification or amendment of this
contract shall be effective only if in writing and signed by an authorized representative of EFI. Any terms contained in any
prior or subsequent purchase orders, work orders, invoices, acknowledgement forms, manifests, requests for proposals or
other documents received from the Client that would otherwise have the effect of modifying or abrogating these General
Conditions in whole or in part are null and void and of no effect unless each party has signed a document agreeing to such
additional terms. If any portion of this contract Is held invalid or unenforceable, any remaining portion shall confinue in full
force and effect. Nothing herein shall be construed to give any rights or benefits hereunder to anyone other than Client or
EFI. There shall be no assignment of the rights or obligations contained in this contract by either party and any such
assignment shall be null and void. Any notices required under this Agreement shall be sent, if to EFI, to 8125 Sedgwick way,
Memphis, TN 38125 and If to Client to the address on any Assignment. The construction, Interpretation and performance of
this Agreement and all transactions relating thereto shall be governed by the laws of the Stale of Tennessee.
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Rev a.3.2e21