|
person or entity, or Client's site conditions. BOA will not be responsible for inspecting, observing, reporting, or
<br />correcting health or safety conditions or deficiencies of Client or others at Client's site. So as not to discourage BOA
<br />from voluntarily addressing health or safety issues while at Client's site, in the event BOA does address such issues by
<br />making observations, reports, suggestions, or otherwise, BOA will nevertheless have no liability or responsibility
<br />arising on account thereof. Client agrees to indemnify, hold harmless, and defend BOA to the fullest extent permitted
<br />by law against any and all claims arising out of such programs, activities, conditions, or deficiencies unless BOA is
<br />responsible for gross negligence with regard to its work.
<br />Article 3: Changes; Delays; 'Excused Performance
<br />3.1 Changes. Unless this Agreement expressly provides otherwise, BOA's proposed compensation represents its
<br />best estimate of the costs, effort, and time it expects to expend in performing the services based on its reasonable
<br />assumption of the conditions and circumstances under which the services will be performed including, but not limited
<br />to, those stated in Section 3.2. As the services are performed, conditions may change or circumstances outside BOA's
<br />reasonable control (including changes of law or regulatory policy) may develop that would require BOA to expend
<br />additional costs, effort, or time to complete the services, in which case BOA will notify Client, and an equitable
<br />adjustment will be made to BOA's compensation. In the event conditions or circumstances require the services to be
<br />suspended or terminated, BOA will be compensated for services previously performed and for costs reasonably
<br />incurred in connection with the suspension or termination.
<br />3.2 Assumptions. Unless specified in writing, BOA's compensation is based on the assumption that: (a) there is
<br />no impact spoil or excavation of natural resources on or adjacent to the site that has not been disclosed to BOA by the
<br />client; (b) there is no contamination of soil or groundwater at the site by Oil or Hazardous Materials that has not been
<br />disclosed to BOA by Client, (c) BOA will not encounter any underground structures, utilities, boulders, rock, water,
<br />running sand, or other unanticipated conditions in the course of drilling or excavation; (d) tank installations will not
<br />require dewatering by BOA; and (e) if BONS scope of services includes services related to petroleum facilities or
<br />storage tanks, groundwater will not cause tanks to float or require the use of Ballast. BOA will be compensated for any
<br />additional efforts expended or costs incurred in addressing such conditions.
<br />3.3 Force majeure. BOA will not be responsible for any delay or failure of performance caused by fire or other
<br />casualty, labor dispute, government or military action, transportation delay, inclement weather, Act of God, act or
<br />omission of Client or its contractors, failure of Client or any government authority to timely review or to approve the
<br />services or to grant permits or approvals, or any other cause beyond BOA's reasonable control. In the event of such
<br />delay or failure, the time for performance will be extended by a period equal to the time lost plus a reasonable recovery
<br />period, and the compensation will be equitably adjusted to compensate for any additional costs BOA incurs due to any
<br />such delay.
<br />3.4 Disputes. If any claim or dispute arises out of this Agreement or its performance, the parties agree to
<br />endeavor in good faith to resolve it equitably through negotiation or, if that fails, through nonbinding mediation under
<br />the rules of the American Arbitration Association, before having recourse to the courts. However, prior to or during
<br />negotiation or mediation, either party may initiate litigation that would otherwise become barred by a statute of
<br />limitation, and BOA may pursue any property liens or other rights it may have to obtain security for the payment of its
<br />invoice.
<br />Article 4: Compensation
<br />4.1 Rates. Unless otherwise agreed in writing, BOA will be compensated for its services at its standard rates and
<br />will be reimbursed for costs and expenses (plus reasonable profit and overhead) incurred in its performance of the
<br />services.
<br />4.2 Invoices, BOA may invoice Client on a monthly or other progress billing basis. Payment of all invoices is
<br />expected within fifteen (t5) days ofthe client's receipt of payment from its client. If invoice is not paid in fill in fifteen
<br />(15) days, interest will accrue at 1.5% per month (18% per annum).
<br />4.3 Suspension, etc. BOA may suspend or terminate the services at any time if payment is not received when due
<br />and will be entitled to compensation for the services previously performed and for costs reasonably incurred in
<br />connection with the suspension or termination.
<br />4.4 Collection. Client will reimburse BOA for BOA's costs and expenses (including reasonable attorneys' and
<br />witnesses' fees) incurred for collection under this Agreement.
<br />4.5 Taxes, etc. Except to the extent expressly agreed in writing, BOA's fees do not include any taxes, excises,
<br />fees, duties, or other government charges related to the goods or services provided under this Agreement, and Client
<br />will pay such amounts or reimburse BOA for any amounts it pays. If Client claims that any goods or services are
<br />Berg* Oliver Associates, Inc.
<br />BOA Project Number 8310espr
<br />July 5, 2011
<br />
|