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HomeMy WebLinkAboutPeer Review Proposal SIGNED 052322 May 23, 2022 Ms. Kathy Williams, PE Town of Yarmouth Conservation Commission 1146 Route 28 South Yarmouth, MA 02664 Re: Proposal for Technical Stormwater Peer Review Two Twenty Five White’s Path Units Two and Three, LLC 225 White’s Path, Yarmouth ESS Proposal No. 495497 Dear Ms. Williams, ESS Group, LLC (ESS), a TRC Company, provides this proposal for professional consulting services in response to your May 17, 2022 email request. Our proposal describes our proposed approach to completing the peer review, deliverables, and our proposed compensation for the services to be provided. SCOPE OF WORK Based on the application documents provided to ESS on May 17, 2022, the Conservation Commission’s objectives, and the requested scope of work described in the “Request for On-Call Services”, dated May 26, 2021, as well as on our experience with providing similar professional service, ESS proposes the following approach. TASK 1: INITIAL TECHNICAL STORMWATER PEER REVIEW ESS will provide a technical stormwater peer review of the Stormwater Management Permit Application prepared by CHA Consulting, Inc. submitted to the Commission on May 5, 2022 and provided to ESS on May 17, 2022. The review will include: • Review for technically complete application –incomplete/inaccurate information needed to review the application will be identified. • Determination as to whether the proposed plans/BMPs meet the Stormwater Management Regulations, effective July 1, 2021. • Identification of items to be modified for compliance. • Recommended permit conditions, if applicable. • A comment letter summarizing the findings of the review. The letter will be addressed to the Conservation Commission (via the Conservation Administrator), and copied to the Town Engineer. Deliverables: A single comment letter provided in PDF format. Kathy Williams May 23, 2022 2 TASK 2: ADDITIONAL REVIEWS AND CONSULTATION SERVICES ESS will review additional submissions and responses to comments as requested. ESS will provide additional consultation services such as phone calls, meetings, public hearings, written correspondence, additional revisions, etc. as requested by the Conservation Commission. SCHEDULE ESS is prepared to begin work on this scope of work upon execution of a contract with the Town of Yarmouth. Assuming that written notice to proceed is provided to ESS by May 25, 2022, ESS anticipates completing Task 1 described herein on or about June 9, 2022. ESS will keep the Commission apprised of significant findings throughout the project. ESS is not responsible for delays in performance caused by circumstances beyond our control, or which could not have reasonably been anticipated or prevented. ASSUMPTIONS The proposed compensation described in this proposal is predicated on the Scope of Work described above and the following assumptions: • ESS will assume that all information provided to ESS by others is complete and accurate. • To reduce costs and impacts to the environment associated with paper deliverables, ESS deliverables will be provided in PDF format unless otherwise noted. • In the event that changes in policy or regulations of agencies having jurisdiction or changes in COVID-19 related restrictions occur after the date of this agreement, and such changes require additional office or field work, the additional work will be completed as an additional service on a time and materials basis. COMPENSATION This scope of work described in this proposal will be completed by ESS on a Time and Materials basis in accordance with the attached ESS Standard Terms and Conditions and the current ESS Billing Rate Table. This cost estimate was developed based on the information provided to ESS by the Conservation Commission and the scope of work described above. Our estimated cost to provide the services described in this proposal is $2,600. Task Est. Labor Hours Cost Estimate Task 1: Initial Technical Stormwater Peer Review 12 $2,600 Task 2: Additional Reviews And Consultation Services As Requested -- Totals 12 $2,600 Kathy Williams May 23, 2022 3 The time and materials cost for the services provided above is an estimate and actual Incurred costs may vary from this estimate depending on a variety of factors. ESS will provide notification if we expect incurred costs will exceed 15% of the estimate. Time expended providing services, including travel time, will be charged, unless otherwise specified above. Associated subconsultant and other direct costs (travel expenses, copies, etc.) will be treated as reimbursable expenses and will be invoiced on a Time and Materials basis at the rates specified on the current ESS Billing Rate Table. Additional services that are not described in this proposal will be provided as an additional service on a Time and Materials basis as incurred. Any time or costs associated with compliance with COVID-19 related protocols or orders will be invoiced as an additional service on a Time and Materials basis. ESS will provide invoices for our services, and payment will be due, as specified in the attached ESS Standard Terms and Conditions. ACCEPTANCE This proposal is valid for a period of 30 days. You may accept this proposal by signing in the space provided below and returning an executed copy to us. The executed proposal and the referenced attachments will serve as the entire agreement between ESS and the Town of Yarmouth. Sincerely, ESS GROUP, INC. Jason M. Gold, P.E. Manager, Civil/Site Engineering Attachments: ESS Billing Rates ESS Standard Terms and Conditions ESS GROUP, INC. BILLING RATE TABLE Consulting Labor Fees and Direct Charges – Calendar Years 2021-2023 Town of Yarmouth, MA On-Call Services for Review of Stormwater Permit Applications ESS Proposal No. 17841 ESS Group, Inc. (ESS) will complete approved scopes of work to be described in separate on-call Proposals in accordance with the Terms and Conditions of a contract to be executed between ESS and the Town of Yarmouth and the following consulting labor rates and direct cost charges. Please note that ESS Cost Estimates, Labor Rate, and Direct Cost schedules are considered confidential business information for Customer review only. Rates may be subject to change without notice. CONSULTING LABOR FEES Billing Category Hourly Billing Rate 2021 2022 2023 Expert Witness Testimony and Related Services (including preparation) 1.5 x Billing Category Rate Project Director $215 $225 Project Manager $165 - $185 $175 - $195 Senior Project Engineer/Scientist $140 - $155 $150 - $165 Project Engineer/Scientist $95 - $130 $100 - $135 Administrative/Project Support $80 $85 DIRECT CHARGES Services and Costs Rate Subconsultant Management Services Cost plus 15% Expenses Cost plus 10% Specialty or Required Field Equipment, Software, Insurance As priced Client Mandated ISNetworld.com Registration and Participation $600 per year Project Data Transfer/Storage; Project Communications 4% of ESS Labor Charge Reprographic Services and Mailing Reimbursable Expense Specialized Invoicing and Reporting Format/Information Requests $200 per invoice Rates are valid for On-Call Services for Review of Stormwater Permit Applications provided in calendar years 2021 through 2023. Employee billing category may change during this period. As a result, labor rates and direct cost charges invoiced may change during the period of performance of the contract and scope of services. A TRC Company TRCcompanies.com ESS GROUP, LLC STANDARD TERMS AND CONDITIONS 1.0 THE SERVICES ESS Group, LLC ("ESS"), a TRC Company, proposes to perform certain professional services (the "Services") for the client (the "Client") as more fully set forth in the attached proposal or scope of work (the "Proposal"). ESS will provide the Services to the Client at the charges specified in the Proposal and the Client agrees to pay such charges in accordance with these Standard Terms and Conditions. The charges are an estimate of the cost for services and can vary. If the charges vary by 15% or greater than the amount in the proposal or Task Order, it will be considered substantial and ESS will not exceed this amount without prior notification of the Client. These Terms and Conditions are hereby incorporated into, and are an integral part of, the Proposal and any subsequent Task Orders approved by the Client under this contract for Services (the Proposal and these Standard Terms and Conditions being collectively referred to hereinafter as the "Agreement"). 2.0 BILLINGS, PAYMENTS AND CREDIT TERMS Invoices for the Services shall be submitted, at ESS's option, either on a monthly basis or upon completion of certain project goals or deliverable milestones. All such invoices shall be payable upon receipt of the invoice. A late payment charge will automatically be assessed at a rate of one and one-half percent (1.5%) per month on any outstanding balance not paid within thirty (30) days of the invoice date. Application of the late payment charge indicated above as a consequence of Client’s late payment(s) does not constitute any willingness on the part of ESS to finance Client’s operation, and no such willingness should be inferred. The Client agrees that if the Client fails to pay an invoice due to ESS within thirty (30) days after the date thereof, or fails to meet satisfactory credit criteria, ESS may, without waiving any other claim or right against the Client, and without liability whatsoever to the Client, terminate the Agreement and its performance of the Services. Termination shall not relieve the Client of its obligation to pay amounts incurred up to the date of termination. Client’s obligation to pay for the Services performed under this Agreement is in no way contingent upon Client’s ability to obtain financing, zoning, approval of governmental or regulatory agencies, final adjudication of a lawsuit in which ESS is not involved, or upon Client’s successful completion of the project, unless otherwise stated in this Agreement or other Agreements for which ESS and the Client may consummate. In the event that ESS places any outstanding invoices in the hands of an agency or an attorney for collection, the Client shall reimburse ESS for all costs and expenses of collection, including the fees and expenses of its attorneys and court costs, if any. ESS also reserves its right, in addition to pursuing its other remedies provided herein, to file a mechanic’s lien or other lien or claim of any kind against Client’s property in accordance with applicable laws and regulations. ESS may conduct a credit review or require a certain fee retainer from the Client prior to the initiation of Services authorized by the Client in the event the Client does not have an established credit record with ESS or that the Client’s credit record for previous work conducted by ESS was not satisfactory to ESS. Any fee retainer funds shall be held by ESS in a non-interest bearing account and applied to the last invoice for Services under this Agreement or until such other time an acceptable credit record has been established. Based upon the results of the credit review, ESS may require alternative payment terms other than those indicated above. If satisfactory credit terms cannot be agreed upon, ESS may, without liability whatsoever to the Client, either withhold work hereunder until satisfactory arrangements are made or terminate the Agreement and its performance of the Services and any and all related agreements between the Parties. 3.0 OWNERSHIP OF REPORTS AND DOCUMENTS All reports and documentation prepared for or by ESS shall remain property of ESS until invoices for the Services are paid in full. All backup documents (i.e., field notes, internal calculations, drafts, etc.) shall remain property of ESS. Notwithstanding the foregoing, ESS shall treat its performance of the Services and all information generated in the performance of the Services, whether the property of Client or ESS, as confidential, and shall not release such information to any governmental agency or third party without the written consent of Client, unless the release of such information is necessary to prevent injury to individuals or the environment. Upon payment in full for Services, Client shall use ESS’s reports and documentation only for the originally intended A TRC Company TRCcompanies.com Standard Terms & Conditions 2 April 2022 purpose for which it was prepared. Client shall not transmit, copy, reproduce or otherwise transfer the work product to a third party for use without the express prior written consent of ESS. If ESS work product is subsequently used, transferred or modified by the Client without the prior written consent of ESS, the Client hereby agrees to indemnify and hold ESS harmless from any and all liability and/or claims or damages against ESS, its officers, employees, subcontractors/subconsultants and any successors in interest as a result of this action. 4.0 RIGHT OF ENTRY The Client hereby grants to ESS, or warrants that permission has been duly granted for, a right of entry, from time to time, by ESS, its staff, and subcontractors/subconsultants, to enter upon the Site (as hereinafter defined in Section 7 below) for the purpose of performing all Services. Client understands that even though ESS will take reasonable measures to return the Site to the condition it was in before ESS commenced its activities, the Client recognizes that the use of exploration equipment may alter or affect the terrain in the area under investigation. Accordingly, the Client accepts such risks, and ESS will not be liable for any effect, alteration or damage arising out of such explorations, except damage caused by ESS's negligence. The cost of restoration of the Site because of any such damage has neither been calculated nor included in ESS's fees. The Client agrees to indemnify and hold ESS harmless for all such claims for damages bothers. ESS will exercise a reasonable degree of care in seeking to locate subterranean structures in the vicinity of proposed subsurface explorations or other service activities at the Site. ESS will contact public utilities and review plans, if any, provided by public utilities and public agencies. Plans and information about the Site provided by the Client shall also be reviewed. So long as ESS observes such standard of care, ESS will not be liable for any claims, damage, injury or interference with any subterranean structure, pipe, tank, cable or any other element or condition if not called to ESS's attention prior to commencement of work, or which is not shown, or accurately located, on any plans furnished to ESS by the Client or by any other party (public or private). ESS agrees to schedule its activities to minimize interference with the on-going operations and activities of the Client or any third-party whose property may be the subject of the Services. ESS shall, and shall cause its subcontractors/subconsultants, to abide by all of the Client’s Site rules and regulations regarding the protection of the health and safety of employees and third-parties, provided it shall be the Client’s obligation to make such rules and regulations known to ESS prior to ESS commencing the Services at the Client’s Site. 5.0 LIMITED WARRANTY The Client realizes that the Services require decisions which are not based on pure science or engineering, but rather upon best professional judgment considerations. ESS shall perform the Services in accordance with generally accepted professional practices as observed by members of the profession in the area under similar conditions. The Client agrees that the Services shall be rendered without any other warranty, express or implied. The Client further agrees that the government regulatory review application process for Site activity permits can be complex, involving considerable public participation and political influences, and at times, public opposition can be severe and prevent or delay actual permit issuance to the Client, regardless of the technical soundness of the project. The Client agrees that in such projects, ESS makes no express or implied representation that a Site activities permit will be issued. In the event there are apparent errors or omissions in the Services as mutually agreed to by ESS and Client, ESS’s sole obligation to Client shall be to timely correct such apparent errors or omissions at its own cost as may be reasonably determined by ESS and Client. ESS’s obligation to correct any such errors or omissions as set forth in the preceding sentence shall be limited to only those Services performed under direct contract, control and supervision of ESS and its subcontractors/ subconsultants. ESS’s obligation shall not extend to errors or omissions due to limitations or restrictions by Client or other third parties that may inhibit or prohibit ESS’s use standard of good science, engineering and generally accepted professional practices as stated above. 6.0 SERVICES EXCLUDED A. The Services shall not include any work not expressly set forth in writing in the Agreement. ESS assumes no duty to the Client to perform any work not included in the Agreement, unless the Agreement is amended in writing by ESS and the Client to perform such work. B. Nothing contained in this Agreement shall be construed or interpreted as requiring ESS to assume the status of a generator, storer, operator, treater, transporter or disposal facility as those terms are used within the A TRC Company TRCcompanies.com Standard Terms & Conditions 3 April 2022 Resource Conservation and Recovery Act, 42 USCA Section 6901, et. seq. (RCRA), or as such terms (or similar terms) are used in any state statute of similar effect governing the treatment, storage, transportation or disposal of waste. C. The Services are limited to work specified in the Agreement or any subsequently approved Task Orders and ESS makes no representations or warranties, express or implied, other than those expressly stated in the Agreement. 7.0 INFORMATION DISCLOSURES A. The Client shall provide to ESS all relevant information in its possession, custody, or control, or reasonably available to it, which relates to the project location (the "Site"), its present and prior uses, or to activities at the Site which may affect the Services, including, but not limited to, the following: I. A legal description of the Site, including boundary lines, and an accurate existing conditions site plan. II. Historical information as to the prior uses and owners of the Site, including any maps or plans. III. Identification of the location of utilities, underground tanks, and other structures and the routing thereof at the Site, including available plans of the Site. This also includes any information that may suggest or specify the possibility of encountering unknown, unmarked, or undocumented subsurface structures or hazardous conditions. IV. A description of the types and duration of activities which were conducted at the Site over its use history or at any time by the Client or by any person or entity which would relate to the Services. V. Identification, by name, quantity, location, and date, of any release, storage or handling of hazardous substances at, on or under the Site both prior to and during Services activities. B. Notification and Reporting: to the extent required by law, the Client shall be solely responsible for promptly reporting regulated conditions or events, including, without limitation, the discovery of the release of hazardous substances at the Site to the appropriate public authorities in accordance with applicable laws and regulations. The Client shall indemnify and hold harmless ESS, its officers, employees, subcontractors/subconsultants and any successors in interest for any and all claims arising from its responsibility for notifying or informing regulatory authorities concerning any such regulated conditions or events in the time frames or procedures required by applicable law or regulations. C. Reliance: The services, information, and other data required by this Section 7 to be furnished by the Client shall be at the Client's sole cost and expense. Unless Client informs ESS to the contrary, ESS may rely upon all data, plans or information furnished by the Client as accurate and complete for the purposes of delivery of approved ESS Services. D. Manifest Signing: The Client, or a party designated by the Client, other than ESS, shall sign any and all required manifests relating to the transportation, treatment and disposal of all wastes associated with the activities of the Client. 8.0 DISCOVERY OF UNANTICIPATED POLLUTANT RISKS A. If, while performing the Services, ESS discovers pollutants or hazardous materials, substances, or Site conditions that pose unanticipated or unacceptable risks ("Unforeseen Conditions"), it is agreed that the scope of the Services, schedule for completion, and the estimated project cost shall be reconsidered and that the Agreement shall immediately become subject to renegotiation or termination. B. In the event that the Agreement is terminated because of the discovery of Unforeseen Conditions, it is agreed that ESS shall be paid, without set-off or reduction, for labor performed, subcontractor/subconsultants services and reimbursable charges incurred up to the date of termination of the Agreement, including, if necessary, any additional labor or reimbursable charges incurred for Site restoration or equipment and labor demobilizing from the Site. C. The Client agrees that the discovery of Unforeseen Conditions may make it necessary for ESS to take immediate measures to protect the health and safety of its employees and subcontractors/subconsultants. The Client authorizes ESS to take such immediate measures that ESS, in its sole discretion, deems A TRC Company TRCcompanies.com Standard Terms & Conditions 4 April 2022 necessary to preserve and protect the health and safety of ESS employees and subcontractors /subconsultants; provided however, nothing contained herein shall impose an obligation upon ESS to perform any such acts. D. In the event that soil, water or groundwater samples and/or other subsurface structures or materials contain or are suspected to contain pollutants, or hazardous materials or substances, or constituents hazardous or detrimental to health, safety, or the environment as defined by federal, state or local statutes, regulations or ordinances, ESS will, after completion of testing, return such samples and materials to the Client or the Site if the testing laboratory will not dispose of these samples as part of their operating procedures. If the Client requests and approves ESS to provide labor and materials to properly dispose these potentially contaminated samples, substances or sample residuals, the Client agrees to compensate ESS for those fees and charges incurred at the time of disposal. The Client also hereby agrees to indemnify and hold ESS or any successors in interest harmless for any liability, claim or demand associated with their disposal of this material or substances. E. All laboratory and field equipment used by ESS in performing the Services that becomes contaminated will be cleaned and the Client agrees to reimburse ESS for all costs and expenses of such cleaning. Contaminated consumables will be disposed of and replaced and the Client agrees to reimburse ESS for all costs and expenses related to such disposal. Equipment (including tools) which cannot be reasonably decontaminated shall become the property and responsibility of the Client. All such equipment shall be delivered to the Client. The Client agrees to pay to ESS the fair market value of any such equipment which cannot reasonably be decontaminated. F. Client understands that the discovery of Unforeseen Conditions and/or the taking of preventive measures relative to these substances and conditions may result in a reduction of the value of the Site upon which Unforeseen Conditions are found to exist or the preventive measures are taken. Accordingly, Client waives any claim against ESS and its subcontractors/subconsultants and agrees to defend, indemnify and hold harmless ESS, its subcontractors/subconsultants, and any successors in interest from any claim based upon the diminished value of real property allegedly arising from the discovery of Unforeseen Conditions or the taking of a preventive measures, unless such claim is based upon the negligent performance of Services by ESS under this Agreement. 9.0 PERFORMANCE AND FORCE MAJEURE ESS shall make reasonable efforts to complete the Services in a timely and orderly manner. ESS will not be liable to the Client for delays in performing the Services, nor for the direct or indirect cost resulting from such delays, which may result from labor strikes, riots, fires, natural disasters, wars, acts of governmental authorities, adverse weather conditions or other natural catastrophes, or any other cause beyond the reasonable control or contemplation of ESS. 10.0 LIMITATION OF PROFESSIONAL LIABILITY The Client agrees that ESS's liability to the Client based upon or arising out of ESS's breach of this Agreement or negligent professional acts, errors or omissions is limited, in amount, to the lessor of (i) aggregate sum of $50,000 or (ii) ESS's aggregate fee for the Services (excluding expenses). The Client agrees that to the fullest extent permitted by law, this limitation applies to all injuries, damages, claims, losses, expenses and defense costs, whether based in contract, negligence, strict liability, attorneys’ fees, statutory, trespass, indemnity, misrepresentation or any other theory of liability or causes whatsoever. No claim shall be valid if presented to ESS more than one (1) year after substantial completion of the Services or, if shorter, the applicable statute of limitations period. ESS, its affiliates, officers, directors, employees or agents shall not be liable for lost profits, loss of use of property, diminution of value of property or goods, delays, cost to obtain replacement samples, or other special, indirect, incidental, consequential, punitive, exemplary or multiple damages whether caused by ESS's negligence, errors, omissions, strict liability, breach of contract, breach of warranty, or other cause or causes whatsoever. A TRC Company TRCcompanies.com Standard Terms & Conditions 5 April 2022 11.0 INSURANCE ESS represents that it is protected by and has in place the following forms and amounts of insurance: Form of Insurance Limits General Liability Coverage is on an occurrence basis and includes Premises/Operations, Products/Completed Operations, Personal & Advertising Injury, Medical Payments $1,000,000 Each Occurrence $2,000,000 Aggregate Workers Compensation Coverage includes all state and federal requirements Statutory Employers Liability $1,000,000 Each Accident $1,000,000 Disease-Policy Limit $1,000,000 Disease-Each Employee Automobile Liability Coverage includes Owned, Non-Owned and Hired Automobile $1,000,000 Combined Single Limit Umbrella Coverage on an Umbrella form over General Liability, Automobile Liability and Employers Liability $5,000,000 Each Occurrence and Aggregate Professional Liability $1,000,000 Each Occurrence $2,000,000 Aggregate Environmental Coverage Pollution Liability Coverage $1,000,000 Each Occurrence $2,000,000 Aggregate ESS shall furnish Client with Certificate(s) of Insurance upon Client’s request. If Client requires excess insurance coverage in addition those stated above, ESS may purchase project specific insurance at Client’s request if commercially available, provided that Client pays the premium and costs to obtain additional coverage. 12.0 INDEMNIFICATION To the fullest extent permitted by law, Client agrees to indemnify, defend and hold harmless ESS, its officers, directors, employees and agents, including its affiliates and subsidiaries, and any successors in interest from and against all liabilities, losses, damages, demands, claims, suits, fines and penalties, attorneys’ fees and other costs of settlement and defense, which liabilities, losses, damages, demands, claims, suits, fines and penalties or costs arise out of or are related to this Agreement or the Services, except to the extent they are caused by ESS’s negligence. 13.0 TERMINATION ESS or Client may terminate this Agreement upon thirty (30) days prior written notice to the other party. If the Agreement is so terminated, ESS shall be compensated for all completed Services rendered up to and including the day of termination as well as any reasonable labor and materials costs for the collection, preparation and transfer of ESS services or product to the Client after termination of this Agreement. ESS or Client may immediately terminate this Agreement upon an Event of Default, as defined below. Upon a termination of this Agreement for an Event of Default, ESS shall be compensated for all completed Services rendered up to and including the day of termination as well as any reasonable labor and materials costs for the collection, preparation and transfer of ESS Services or product to the Client after termination of this Agreement. Each of the following events shall constitute an “Event of Default”: A. ESS or Client fail to observe, perform, or comply with any material term, covenant, agreement, or condition of this Agreement which is to be observed, performed, or complied with by ESS or Client, of such failure to continue uncured for fourteen (14) calendar days after ESS or Client gives the other party written notice of any failure and specified the nature of such failure. A TRC Company TRCcompanies.com Standard Terms & Conditions 6 April 2022 B. ESS or Client commits any fraud, misrepresentation, breach of fiduciary duty, willful misconduct, or intentional breach of any provision of this Agreement. 14.0 INDEPENDENT CONTRACTOR STATUS ESS, its associates, subconsultants and subcontractors shall act as and be deemed to be independent contractors for all purposes of this Agreement and shall not be deemed to be agents, assigns, employees, joint venturers, partners or principals of Client, or its employees, officers, directors, representatives or affiliates. This Agreement is not intended to, and shall not be construed to, create an employer-employee relationship between ESS and Client for any purpose including under the provisions of any workers’ compensation law or other laws. 15.0 EMPLOYEE NONSOLICITATION ESS and Client agree that during the term of this Agreement, and for a period of one (1) year following the date of completion or termination of this Agreement, for any reason whatsoever, they shall not directly or indirectly solicit or encourage any employee of either Party to this Agreement who was employed during the term hereof to leave employment of the other Party to this Agreement, or employ any such employee unless such employee has ceased to be employed by the other Party for a period of at least one (1) year. If either party violates this condition, whether by direct or indirect solicitation or any other manner or encouragement, ESS or Client hereby agree to pay a penalty of three (3) times the current salary or rate of pay of the departing employee within thirty (30) days of notice of resignation by that employee, in addition to all other rights and remedies provided herein. ESS and Client hereby agree that irreparable damage would occur in the event that any of the terms and provisions of this Section were not performed in accordance with their specific terms or were otherwise breached. Client further acknowledges that the injury to ESS resulting from any violation by it of any of the terms and provisions contained in this Section will be of such character that it cannot be adequately compensated by money damages. Accordingly, ESS may, in addition to pursuing its other remedies provided herein, obtain an injunction to prevent breaches of this Section and to enforce specifically the terms and provisions hereof in any court of competent jurisdiction. ESS may also recover damages and reasonable attorneys’ fees and legal costs of ESS’s counsel expended to enforce this Section. 16.0 NOTICES Any notice required or permitted by this Agreement shall be deemed duly given if sent in writing, certified or registered mail or by other commercial delivery service with return receipt requested or other written acknowledgement of receipt to the addresses set forth in the Proposal, or such other addresses as the Parties may designate by written notice. 17.0 NON-ASSIGNMENT This Agreement and no rights or obligations under this Agreement may be assigned to any other person, or entity by operation or law, or otherwise, without the express prior written consent of ESS. 18.0 BUSINESS OPPORTUNITIES This Agreement shall in no way be construed to (i) preclude in any way either Party from pursuing any business opportunities or (ii) establish any relationship with respect to such business opportunities. Nothing in this Agreement shall preclude ESS from working with other entities for the business of providing environmental consulting and engineering services. 19.0 GENERAL A. This Agreement may not be and shall not be deemed or construed to have been modified, amended, rescinded, canceled, or waived, in whole or in part, except by written agreement signed by ESS and the Client. B. This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes any previous communications, representations or agreements by either party, whether written or oral and takes precedence over any terms and conditions that maybe contained in any purchase order, or other document issued by the Client. C. No Party may be deemed to have waived any right, power or privilege under this Agreement or any provision of this Agreement unless such waiver is duly executed in writing any acknowledged by the Party to be charged with such waiver. The failure of any Party to enforce at any time any of the provisions of this Agreement may in no way be construed to be a waiver of such provisions nor in any way to affect the validity A TRC Company TRCcompanies.com Standard Terms & Conditions 7 April 2022 of this Agreement or any part of this Agreement, or the right of any Party to subsequently enforce each and every such provision. No waiver of any breach of this Agreement may be held to be a waiver of any other or subsequent breach. D. The Parties agree that the provisions of Sections 12 and 15 survive the completion and/or termination of this Agreement. In addition, all provisions of this Agreement allocating responsibility or liability between ESS and Client shall survive completion of services and/or the termination of this Agreement. E. If either Party makes a claim against the other Party for any alleged dispute, breach, default, negligent error, omission or act arising out of the obligations of the Parties hereunder that cannot be mutually resolved by negotiation or mediation and without resort to litigation and such Party fails to prove the claim, such Party shall pay all costs incurred by the other Party in defending itself against the claim, including personnel costs, attorneys' fees, court costs and other claim related expenses. This Agreement shall be governed in all respects by the laws of the Commonwealth of Massachusetts and each Party hereby consents to the jurisdiction of the federal and state courts of the Commonwealth for resolution of any dispute hereunder. F. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. ESS IS AN EQUAL OPPORTUNITY – AFFIRMATIVE ACTION EMPLOYER