Rise Structural Group, LLC - Terms and Conditions
Rise Structural Group, LLC (Rise) shall perform the services outlined in this agreement in consideration of the stated fee and subject to these Terms and Conditions.
Standard of Care. Rise will perform its services with the care and skill ordinarily exercised by members of the same profession practicing in the same or similar locality under similar circumstances at the time the services are performed. Rise makes no warranty or guarantee, express or implied, including any warranty of merchantability or fitness for a particular purpose, and nothing in this agreement shall require Rise to perform to a standard exceeding this standard of care. Rise's services and deliverables are prepared solely for the Client for the purpose stated in this agreement, and no third party may use or rely upon them without Rise's prior written consent.
Client Responsibilities. The Client shall: a) provide complete and accurate information concerning its requirements, together with all existing drawings, reports, studies, and other data pertaining to the project, and acknowledges that inaccuracies or omissions may result in additional costs or delays; b) provide and arrange for access onto public and private property as necessary for performance of the services; c) furnish locations of subterranean structures and utilities; and d) furnish required information promptly for the orderly progress of the services. Rise is entitled to rely on the accuracy and completeness of all information provided by the Client.
Client-Supplied Documents. Rise may rely upon data, information, and plans supplied by the Client. The Client warrants that it owns or has necessary permissions for all documents provided to Rise, and Rise shall have an unencumbered right to reproduce them in performing its services. The Client shall indemnify Rise against any liability arising from a copyright claim by another design professional relating to the use of these documents.
Permits. Rise shall assist the Client in obtaining permits and any LEED certifications required for the project but makes no guarantee as to the timing of delivery or approval of permits or that any particular LEED certification level will be achieved.
Fee. Except for stated lump sums, the total fee is an estimate based upon the Scope of Services, and any changes or additional work shall be subject to a mutually agreed change order. Hourly fee arrangements shall be billed at the rates prevailing at the time services are rendered. Reimbursable expenses, including printing, mileage, express mailings, equipment rentals, lodging, meals, and similar costs, are in addition to stated fees and will be invoiced at 1.0 times the cost incurred. Fees exclude any services or costs not specifically stated in the scope of services. Rise may suspend performance of any additional services until the Client provides written approval of the associated additional fee, and Rise shall have no liability for any resulting delay.
Billings/Payments. Invoices for services and reimbursable expenses will be submitted monthly and are due within 30 days of the invoice date, regardless of any payment arrangements the Client may have established with others. Where the Client is engaged as the prime design professional, prime consultant, or design-build contractor to a project owner and Rise's fees are included in the Client's compensation from the owner, payment of Rise's invoices may instead be deferred until ten (10) days after the Client's receipt of corresponding payment from the owner, provided that the Client invoices the owner promptly and pursues payment diligently, and provided further that payment to Rise shall in no event be made later than sixty (60) days after the invoice date, regardless of whether the Client has received payment from the owner. The Client shall not withhold payment on account of disputes or claims unrelated to Rise's services. Any retainer paid by the Client will be credited on the final invoice. A service charge of 1.5% per month (or the maximum legal rate) will be applied to any balance remaining unpaid after the applicable due date. Rise may suspend or terminate services if payment is not received within thirty (30) days after the applicable due date, and Rise shall have no liability for any resulting delay or damage incurred by the Client. The Client shall pay all costs of collection, including reasonable attorney's fees.
Hidden Conditions. A condition is hidden if concealed by existing finishes or not capable of investigation by reasonable visual observation. If Rise has reason to believe a hidden condition may exist, Rise shall notify the Client, who shall authorize and pay all costs associated with investigating and, if necessary, correcting the condition. If the Client fails to authorize such investigation or correction after notification, or if Rise has no reason to believe such a condition exists, the Client bears all risks associated with the condition, and Rise shall not be responsible for the condition or any resulting damage to persons or property.
Hazardous Materials. The services expressly exclude any services directly or indirectly related to the discovery, remediation, transport, disposal, storage, or treatment of any oil, hazardous, radioactive, toxic, irritant, pollutant, or otherwise dangerous substance or condition at the site, including mold and asbestos, and Rise shall have no responsibility for the presence, handling, removal, or exposure of persons to such substances. If Rise or any other party encounters or suspects the presence of any such material that may affect Rise's services, Rise may, at its sole option and without liability for consequential or other damages, suspend performance of its services until the Client retains appropriate specialists to identify, abate, or remove the material and confirms in writing that the site is in compliance with applicable laws.
Construction Activities. Rise shall not be responsible for the acts or omissions of any contractor, subcontractor, supplier, or other person performing any portion of the work, or for instructions given by the Client or its representatives to any person performing the work. Rise shall not have control over or be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the work, these being solely the rights and responsibilities of the contractor.
Jobsite Safety. Neither the professional services of Rise, nor the presence of Rise or its employees and subconsultants at a construction site, shall relieve the general contractor of its sole responsibility for jobsite and worker safety or for construction means, methods, sequences, techniques, and procedures. Rise and its personnel have no authority to exercise control over any contractor or its employees in connection with their work or any health or safety programs or procedures, and no right of Rise to observe, visit, or stop work shall be construed to impose any such responsibility. The Client agrees that its contract with the general contractor shall require the general contractor to be solely responsible for jobsite and worker safety, to defend and indemnify the Client, Rise, and Rise's subconsultants from claims arising out of those duties, and to name the Client, Rise, and Rise's subconsultants as additional insureds under the general contractor's commercial general liability insurance.
Construction Observation. When construction phase services are included in the scope of services, Rise will visit the site at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the work and to determine, in general, if the work is proceeding in accordance with the contract documents. Such visits and visual assessments are not exhaustive or detailed reviews of the contractor's work. Rise does not guarantee the performance of any contractor and shall not be responsible for any contractor's failure to perform in accordance with the contract documents or applicable laws, codes, or regulations.
Defects in Service. The Client shall promptly report to Rise any defects or suspected defects in Rise's services and shall include a similar notification requirement in its contracts with contractors, with corresponding requirements in subcontracts at every tier. Failure to provide prompt notification shall relieve Rise of the cost of remedying any defect to the extent such cost exceeds what the remedy would have cost had prompt notification been given.
Betterment. If a required item or component is omitted from Rise's documents, Rise shall not be responsible for the cost of adding it to the extent such cost would have been included in the original construction cost had it been shown in Rise's documents. Rise shall not be responsible for any cost that provides betterment, upgrade, or enhanced value to the project.
Indemnifications. To the fullest extent permitted by law, the Client shall indemnify and hold harmless Rise, its principals, officers, employees, and subconsultants from and against all claims, damages, losses, and expenses (including reasonable attorney's fees) to the extent caused by the negligent acts, errors, or omissions of the Client, the Client's contractors or consultants (other than Rise), or anyone for whose acts they may be legally liable. Rise shall remain responsible for damages to the extent caused by its own negligent performance of services, subject to the Risk Allocation provision of this agreement. Neither party's indemnity obligation includes a duty to defend.
Insurance. Rise maintains Professional Liability, General Liability, and Workers' Compensation insurance and, upon written request, will furnish the Client a certificate of insurance. Rise shall have no obligation to maintain coverage types or limits beyond those in effect at the time this agreement is executed unless agreed in writing.
Risk Allocation. To the fullest extent permitted by law, the total aggregate liability of Rise and its principals, officers, and employees to the Client for all claims, losses, expenses, or damages arising out of or relating to this agreement, whether based in contract, warranty, negligence, professional negligence, strict liability, or any other cause or legal theory, shall not exceed the greater of the total fee paid to Rise or $50,000. No principal, officer, or employee of Rise shall have personal liability under this agreement.
Consequential Damages. Notwithstanding any other provision of this agreement, and to the fullest extent permitted by law, neither party shall be liable to the other for any incidental, indirect, or consequential damages arising out of or relating to this agreement or the project, regardless of cause or legal theory, including loss of use, loss of profits, loss of business or income, loss of financing, and costs of delay.
Ownership of Documents and Intellectual Property. All documents and deliverables produced by Rise, including electronic files, and all intellectual property rights arising from the services shall remain the property of Rise. The Client may use the documents solely for the purpose stated in this agreement and may not modify, reuse, or transfer them without Rise's prior written consent. Electronic files are provided for convenience, are not contract documents, and cannot be relied upon as identical to the sealed contract documents due to changes or errors introduced by translation, transmission, or alteration while under the control of others; use of electronic files is at the user's sole risk. The Client waives all claims against Rise and shall defend, indemnify, and hold Rise harmless from claims arising out of any unauthorized use, reuse, modification, or transfer of the documents or electronic files. Release of native electronic files (Revit, AutoCAD, or similar) requires execution of Rise's electronic file release form.
Confidentiality. Both parties shall keep confidential information exchanged during the project confidential and shall not disclose it to any third party without the disclosing party's prior written consent, except as required by law.
Dispute Resolution. Any claim or dispute arising out of or relating to this agreement or the services shall be submitted to non-binding mediation under the Construction Industry Mediation Procedures of the American Arbitration Association as a condition precedent to litigation. The parties shall mediate in good faith and share the mediator's fee equally. No demand for mediation, and no action or proceeding arising out of or relating to this agreement or the services, shall be made or commenced after the date on which institution of such action or proceeding would be barred by the applicable statute of limitations or repose. Any dispute not resolved through mediation shall be resolved by litigation in a court of competent jurisdiction in the county of Rise's principal office, or, where the law of the state in which the project is located mandates a different venue, in that mandated venue, and each party consents to such jurisdiction and venue. The parties shall include a similar mediation requirement in their agreements with contractors, subconsultants, and suppliers for the project.
Termination and Assignment. Either party may terminate this agreement upon ten (10) days written notice if the other party substantially fails to perform its obligations through no fault of the terminating party and does not cure the failure within the notice period. Rise may also suspend or terminate services under the Billings/Payments provision. Upon termination, the Client shall pay Rise for all services rendered to the date of termination, all reimbursable expenses, and reasonable termination expenses. Rise shall have no liability for delay or damage resulting from suspension or termination arising from the Client's failure to perform, including nonpayment. Neither party shall assign this agreement without the prior written consent of the other.
Force Majeure. Neither party shall be liable for failure or delay in performance, other than the Client's payment obligations, caused by circumstances beyond its reasonable control, including acts of God, fire, flood, war, labor disputes, transportation delays, material shortages, epidemics, or governmental actions or requirements.
Entire Agreement. This agreement, including the proposal and these Terms and Conditions, constitutes the entire agreement between the parties and supersedes all prior negotiations, representations, and agreements, written or oral. It may be amended only by a written instrument signed by both parties. Nothing in this agreement shall create a contractual relationship with, or a cause of action in favor of, any third party against either the Client or Rise.
Certifications. Rise shall not be required to execute any certificate, guarantee, or warranty, however requested, concerning conditions Rise does not know to be true and accurate, and no such certificate shall be construed as a warranty or guarantee. The Client shall not make payment of any amount due to Rise contingent upon Rise's execution of any such document. As used in any deliverable, the term "certify" means a statement of Rise's professional opinion to the best of its knowledge, information, and belief, and does not constitute a warranty.
Notices. Any notice required under this agreement shall be in writing and deemed given when delivered personally, by nationally recognized overnight courier, by certified mail, or by email with confirmation of receipt, to the addresses set forth in the proposal.
Severability. If any provision of this agreement is found invalid or unenforceable, the remaining provisions shall remain in full force and effect.
Survival. The provisions of this agreement concerning standard of care, indemnification, risk allocation, consequential damages, ownership of documents, confidentiality, jobsite safety, and dispute resolution shall survive completion of the services or termination of this agreement.
Applicable Law. Unless otherwise specified, this agreement shall be governed by the laws of the Commonwealth of Pennsylvania.
Proposal Validity. This proposal is valid for ninety (90) days from its date unless extended in writing by both parties.