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<br />14.0
<br />14.1
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<br />15.0
<br />15.1
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<br />16.0
<br />16.1
<br />
<br />17.0
<br />17.1
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<br />DISPOSAL OF SAMPLES AND DRILL CUTTINGS
<br />TRC Lowney shall hold samples collected during the performance of its Work no longer than 45 calendar days after issuance of any document that includes data
<br />obtained from them unless Client advises in writing otherwise; drill cuttings will be left on-site. In the eventth at soil, rock, water, or drill cuttings, and/or other
<br />samples or material are contaminated or are suspected to contain hazardous materials or other toxicsubst ances hazardous or detrimental to public health,
<br />safety, or the environment as defined by federal, state, or local statutes, regulations, or ordinances, TRC Lowney will, after completion of testing, notify the
<br />Client of same in order for the Client to arrange for the disposal of samples and materials. The Client recognizes and agrees that TRC Lowney at no time
<br />assumes title to said samples and/or materials. The Client, not TRC Lowney, remains ultimately responsible for selecting the disposal or treatment facility to
<br />which such samples and/or materials are to be delivered. The Client agrees to pay all costs associated with any storage, transport, and disposal of samples and
<br />materials, and to defend and indemnify TRC Lowney from any and all claims arising out of or in any way related to the storage, transport, and disposal of
<br />asbestos, hazardous or toxic substances, or pollutants, including but not limited to, any samples and/or materials.
<br />
<br />17.2
<br />
<br />PREVAILING WAGE OBLIGATIONS
<br />Clients hall notify TRC Lowney in writing if the Work subject to this Agreement constitutes a "public work" under any and all federal, state, and/or local prevailing
<br />wage laws, and/or living wage laws and/or ordinances, including, but not limited to, the Davis-Bacon Act and the provisions of California Labor Code 99 1720, et
<br />seq. In addition, Client shall notify TRC Lowney if TRC Lowney is obligated by statute, any public contracting authority, and/or a developer to pay prevailing
<br />wages and benefits and/or any other predetermined wages or benefits (collectively, "prevailing wage obligations"). In the event that TRC Lowney must adhere to
<br />federal, state, and/or local prevailing wage obligations for Work performed, Client shall provide TRC Lowney with any and all prevailing wage determinations
<br />applicable to the Work to be performed by TRC Lowney. Client understands and agrees that TRC Lowney's fee for Work performed under this Agreement will be
<br />calculated, in part, on the basis of representations by Client regarding the existence and amount of any and all prevailing wage obligations and that, if such
<br />obligations exist, TRC Lowney's fee might be different. Client further understands and agrees that TRC Lowney will rely on the representations made by Client
<br />with regard to prevailing wage obligations and Client agrees to indemnify TRC owney against any and all claims, liabilities, suits, demands, losses, costs, and
<br />expenses, including, but not limited to, reasonable attorneys' fees and all legal expenses and fees, arising from TRC Lowney's reliance upon Client's
<br />representations regarding prevailing wage obligations. Client agrees that in the event of any such claims, suits, and/or demands, TRC Lowney shall have the
<br />right to select counsel of its choosing.
<br />
<br />CERTIFICATE OF MERIT
<br />The client shall make no claim for professional negligence unless the Client has first provided TRC Lowney with a written certification executed under penalty of
<br />perjury by an independent consultant currently practicing in the same discipline and geographic area as TRC Lowney and licensed as a professional engineer or
<br />registered geologist in the State of California. This certification shall: a) contain the name and license number of the certifier; b) specify with particularity the
<br />acts or omissions that the certifier contends are not in conformance with the standard of care for a consultant performing professional services under similar
<br />circumstances; c) state the time spent by certifier in rendering this opinion; and d) state in detait the basis for the certifier's opinion that such acts or omissions
<br />do not conform to the standard of care including references to literature, treatises or textbooks to support the certifier's conclusions. This certificate shall be
<br />provided to TRC Lowney no less than thirty (30) calendar days prior to the presentation of any claim or the institution of any mediation, arbitration or judicial
<br />proceeding. At least fifteen (15) days before providing the certificate to TRC Lowney, Client shall ensure that the proposed certifier notify TRC Lowney in writing
<br />of the certifier's intended certification and the content thereof, and Client shall arrange for TRC Lowney to discuss the matter with the certifier in an attempt to
<br />correct any misinformation in the intended certification and/or to resolve the matter. If Client fails to comply with the Certificate Of Merit process contained in
<br />this section 16, then (1) Client waives and foregoes any claim or entitlement to recovery of attorneys' fees and litigation costs otherwise recoverable under this
<br />contract, and (2) Client is estopped and precluded from pursuing any method of mediation, arbitration and litigation against TRC Lowney untii such time as Client
<br />does comply herewith (the "Claim Preclusion"). In agreeing to the Claim Preclusion, Client agrees that compliance with the Certificate Of Merit process is
<br />jurisdictional.
<br />
<br />MISCELLANEOUS PROVISIONS
<br />The term "indemnify" shall mean indemnify, defend, and hold harmless from and against any and all claims, liabilities, suits, demands, losses, costs, and
<br />expenses, including, but not limited to, reasonable attorneys' fees and all legal expenses and fees incurred on appeal, and all interest thereon ("claims"),
<br />accruing or resulting to any and all persons, firms, or any other legal entities, on account of any damages or losses to property or persons, including death, or
<br />economic losses, arising out of the item, matter, action, or inaction specified in the specific provision.
<br />This Agreement shall be governed by California law. The venue for any legal action brought pursuant to this Agreement shall be located within the County of
<br />Santa Clara, State of California.
<br />Nothing contained in this Agreement shall create a contractual relationship with or cause of action in favor of a third party against either the Client or TRC
<br />Lowney.
<br />The Client and TRC Lowney, respectively, bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement and
<br />to the partners, successors, assigns, and legal representatives of such other party with respect to all covenants of this Agreement. Client shall not assign this
<br />Agreement or any right or cause of action hereunder without the written consent of TRC Lowney.
<br />TRC Lowney and Client agree to disfavor litigation and to use mediation to resolve disputes. If initial discussions between TRC Lowney and Client fail to settle a
<br />dispute or claim relating to this Agreement or breach thereof the parties agree to submit such dispute to non-binding mediation to effect a resolution to such
<br />dispute or claim. Construction Industry Mediation Rules of American Arbitration Association shall apply. Demand for mediation shall be made in writing with the
<br />other party to this Agreement within a reasonable time after the claim, dispute or other matter in questions has arisen, if prior discussions have not led to a
<br />settlement.
<br />Unless specified otherwise by TRC Lowney, this quotation shall not remain in effect after thirty (30) days of the proposal date.
<br />TRC Lowney maintains a General Engineering A license (No. 682286) and Hazardous Substances Removal and Remedial Actions Certification with the State of
<br />California, which are regulated by the Contractors State License Board. Any questions concerning a contractor may be referred to the Registrar, Contractors
<br />State License Board, P.O. Box 26000, Sacramento, California 95826.
<br />Client agrees that TRC Lowney may use and publish Client's name and a general description of TRC Lowney's services with respect to the project in describing
<br />TRC Lowney's experience and qualification to other clients or prospective clients.
<br />This Agreement shall not create any rights or benefits to parties other than Client or TRC Lowney. No third-party shall have the right to rely on TRC Lowney's
<br />opinions rendered in connection with TRC Lowney's services without TRC Lowney's written consent and the third-party's agreement to be bound to the same
<br />terms and conditions as Client.
<br />Client acknowledges and agrees that it has received and reviewed these Terms and Conditions and that any rule of construction to the effect that ambiguities are
<br />to be resolved against the drafting party shall not apply to the interpretation of this Agreement.
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<br />17.3
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<br />17.4
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<br />17.5
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<br />17.6
<br />17.7
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<br />17.8
<br />
<br />17.9
<br />
<br />17.10
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