RAS Engineering is a professional engineering company serving, building managers and owners by providing advice, oversight, and testing to ensure that all components of a build’s exterior and structure meet the standards necessary to provide sustainable quality durability and safe protection against the elements.
TERMS AND CONDITIONS
1.0 Responsibilities of the parties.
2.0 Access to site
3.0 Hidden Conditions and hazardous materials
4.0 Ownership of documents
5.0 Billing/Payments
6.0 Suspension/Termination
7.0 Dispute resolution
8.0 Insurance
9.0 Miscellaneous
Article 1.0 RESPONSIBILITIES OF THE PARTIES
The Owner and the Engineer shall cooperate with one another to fulfill their respective obligations under this agreement. Both parties shall endeavor to maintain good working relationships among all members of the team.
Article 1.1 OWNER/CLIENT
1.1.1 Unless otherwise provided under this Agreement, the Owner shall provide full information in a timely manner regarding requirements for and limitations on the Project.
1.1.2 Provide all applicable code compliance violations received by the local building department, county, or state. As-built drawings, structural reports, and photographs received in the last 10 years.
1.1.3 The City requires filling out a special inspection form to be signed by Owner, Engineer, and contractor with the purpose of bonding the parties to the construction permit. The form is enclosed in Exhibit A that must be signed by the Board representative for the city along with this Agreement.
1.1.4 Engineer will carry out all responsibilities defined within the special inspection form submitted for permit.
1.1.5 Maintain the building in a safe condition at all times.
1.1.6 Retain Contractors to perform life-safety and structural repair work. RAS can assist the client in selecting qualified contractors to perform the work.
1.1.7 Owner will list the Engineer in the permit application that the contractor must file in the building department as a condition to obtain permit.
1.1.8 When there is a reason to believe that there is unforeseen damage under the visible surface, the Engineer will propose to the Owner to perform a minimally invasive method of testing or investigation. If Owner rejects the proposed investigation Owner will hold Engineer harmless for unforeseen conditions, and any future damage or extra cost for extended repairs.
1.1.9 Owner will avoid giving technical directives or change directives that may affect the cost or contractor’s schedule without Engineer’s approval. The owner will hold Engineer harmless in case of contractor’s change orders resulting from those Owner directives.
1.1.10 Owner directives to the contractor without Engineer knowledge constitutes Owner’s misrepresentation and breach of this Agreement.
1.1.11 Owner authorizes Engineer to install a banner visible from the street with Engineer’s contact information in case scaffolds may be used for inspection that may fail and lead to an accident or life-safety issues.
Article 1.2 ENGINEER SCOPE OF SERVICES
1.2.1 Special Inspection / Threshold Inspection:
1.2.1.1 Owner acknowledges that Engineer represents the Building Official as delegated Special Inspector to verify structural safety, compliance with the permit documents and the Florida Building Code. The Engineer’s inspection log and final inspection affidavit will be required by the City to close the permit.
1.2.1.2 Engineer, acting as Special Inspector or Threshold Inspector, shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion;
1.2.1.3 Engineer shall visit the site at intervals of at least two (2) times per week, or additional time as needed otherwise required by Contractor or City Building Official, to expedite inspections and supervise the progress and verify quality and measurements of the Work completed, Engineer shall keep the Owner informed about the progress and quality of the portion of the Work completed, and report to the Owner (1) deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor, and (2) defects and deficiencies observed in the Work by a non-conformity report.
1.2.1.4 Owner understands that the number of Engineer’s visits stated in this agreement cannot be reduced since they are the minimum to guarantee the quality specified in the permit documents and code compliance. These minimum number of visits are necessary to show evidence of adequate supervision to the City’s Building Official of continuing Special Inspection as defined in the Florida Building Code. If owner reduces the number of visits it will considered a breach of contract.
1.2.1.5 Engineer has the authority to reject Work that does not conform to the Contract Documents. Whenever the Engineer considers it necessary or advisable, Engineer shall have the authority to require inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether such Work is fabricated, installed, or completed.
1.2.1.6 Engineer shall review the Contractor’s submittal schedule and shall not unreasonably delay or withhold approval of submittals. Engineer’s action in reviewing submittals shall be taken with reasonable promptness within one week to avoid Project delays.
1.2.1.7 In accordance with the Engineer-approved submittal schedule, Engineer shall review and approve or take other appropriate action upon the Contractor’s submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. Owner, without Engineer participation, will approve cosmetic issues such as color and texture if applicable. Engineer’s review shall not constitute approval of safety precautions or any construction means, methods, techniques, or procedures.
1.2.1.8 Engineer shall not be responsible for change orders due to Owner’s change directive of design or additional work not contemplated in the specifications.
1.2.1.9 Any changes in the design necessitated or required by building officials or plan reviewers shall be the responsibility of Engineer and billed to the Owner based on the hourly fee stated in the agreement.
1.2.1.10 Engineer shall maintain records relative to changes in the Work.
1.2.1.11 Engineer, acting as Special Inspector or Threshold Inspector, shall conduct a final inspection to check conformance of the Work with the requirements of the Contract Documents and to verify the completeness of the Punch List.
1.2.2 Construction Administration/Project Management:
1.2.2.1 Engineer shall provide administration of the Contract between the Owner and the Contractor if required by owner in writing as set in the Agreement.
1.2.2.2 Engineer shall participate in periodic Project meetings or video conference calls with the Owner, for purposes of approvals, progress discussions, comments, and general coordination. Such periods shall be no more frequently than weekly unless situations determine otherwise.
1.2.2.3 Engineer shall interpret and decide matters concerning performance of the Contract Documents on written request of either the Owner or Contractor. The Engineer’s response to such requests shall be made in writing within any time limits agreed upon or otherwise with reasonable promptness.
1.2.2.4 Interpretations and decisions of Engineer shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and decisions, the Engineer shall endeavor to secure faithful performance by both Owner and Contractor.
1.2.2.5 Engineer shall review and certify the amounts due the Contractor and shall issue certificates in such amounts. Engineer’s certification for payment shall be a recommendation to the Owner to process payment, based on the Engineer’s evaluation of the completed work. Engineer will not be liable for payments not recommended to the owner and accounts payable to the contractor.
1.2.2.6 Engineer shall review and respond to requests for information about the Contract and Permit Documents. Engineer’s response to such requests shall be made in writing within 48 hours. If appropriate, the Engineer shall prepare and issue supplemental Drawings and Specifications in response to requests for information within a week. Supplemental documents will be billed to the owner based on hourly fee.
1.2.2.7 Engineer shall maintain a record of requests for information, submittals and copies of submittals supplied by the Contractor in accordance with the requirements of the Contract Documents.
1.2.2.8 Engineer shall cooperate and coordinate with Owner to accomplish any design changes, ensuring that all design changes meet the requirements set forth herein.
1.2.2.9 Engineer will issue a final Certificate for Payment based upon a final inspection indicating the work complies with the requirements of the Contract Documents, acting as Construction Administrator.
1.2.2.10 Following Contractor’s request for a Certificate of Substantial Completion, Engineer acting as Construction Administrator shall prepare a list of Work to be completed or corrected by Contractor (“Punch List”).
1.2.3 Owner’s Representative:
1.2.3.1 When requested by Owner in writing, Engineer shall assist Owner in evaluating and resolving claims made by the construction contractor.
1.2.3.2 Engineer, acting as Owner’s representative, shall forward to Owner the following information received from the Contractor: (1) consent of surety or sureties, if any, to reduction in or partial release of retainage or the making of final payment; (2) affidavits, receipts, releases and waivers of liens or bonds indemnifying the Owner against liens; and (3) any other documentation required of the Contractor under the Contract Documents.
1.2.3.3 Prior to the expiration of one year from the date of Substantial Completion, Engineer shall, without additional compensation, conduct a meeting with the Owner if desired to review the facility operations and performance.
Article 2.0 ACCESS TO SITE
2.1 Unless otherwise stated, the Engineer will have access to the site for activities necessary for the performance of the services. The Engineer will take precautions to minimize damage due to these activities but has not included in the fee the cost of restoration of any resulting damage.
Article 3.0 HIDDEN CONDITIONS AND HAZARDOUS MATERIALS
3.1 A structural condition is hidden if concealed by existing finishes or if it cannot be investigated by reasonable visual observation. If the Engineer has reason to believe that such a condition may exist, shall notify the owner. The Client is responsible for all risks associated with this condition, and the Engineer shall not be responsible for the existing condition nor any resulting damages to persons or property. The Engineer shall have no responsibility for the discovery, presence, handling, removal, disposal, or exposure of persons to hazardous materials of any form.
3.2 Occasionally, unforeseen conditions will arise during the engineer’s inspections that may require additional analysis beyond the listed visual inspection, to determine the precise condition of the buildings deficient items, or to verify the performance of the repairs during the restoration phase. Should this occur, the owner/client will be advised of the various testing options that are available to them. Cost of those tests will be billed per fee disclosed in the agreement.
Article 4.0 OWNERSHIP OF DOCUMENTS
4.1 Upon execution of this Agreement, the Engineer grants to the Owner a nonexclusive license to reproduce the Engineer’s Instruments of Service solely for purposes of constructing, using, and maintaining the Project, provided that the Owner shall comply with all obligations, including prompt payment of all sums when due, under this Agreement. Any termination of this Agreement prior to completion of the project shall terminate this license. Upon such termination, the Owner shall refrain from making further reproductions, of instruments of Service and shall return to the Engineer within seven days of termination all originals and reproductions in the Owner’s possession or control.
4.2 If and upon the date the Engineer is adjudged in default of this Agreement, the foregoing license shall be deemed terminated and replaced by a second, nonexclusive license permitting the Owner to authorize other similarly credentialed design professionals to reproduce and, where permitted by law, to make changes, or additions to the instruments of Service solely for purposes of completing the Project.
Article 5.0 BILLING/ PAYMENTS
5.1 Preconstruction services such as reports and specifications will be paid 50% in advance and 50% at delivery of the produced documents.
5.2 Payments for inspection services shall be billed bi-weekly. Owner shall have ten (7) business days to approve or reject the Engineer’s invoices. Payments are due and payable fourteen (14) days from Engineer’s invoice.
5.3 A service charge will be charged at 1.5% (or the legal rate) per month on the unpaid balance. In the event any portion of an account remains unpaid 90 days after billing, the Client shall pay cost of collection, including reasonable attorneys' fees.
Article 6.0 SUSPENSION AND OR TERMINATION
6.1 If Owner fails to make payments to Engineer in accordance with this Agreement, such failure shall, at Engineer’s option, be cause for suspension of performance of services under this Agreement. If Engineer elects to suspend services, Engineer shall give seven (7) days’ written notice to Owner before suspending services. Before resuming services, Engineer shall be paid all sums due prior to suspension and any expenses incurred in the interruption and resumption of the Engineer’s services.
6.2 If Owner suspends the Project, Engineer shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, Engineer shall be compensated for expenses incurred in the interruption and resumption of the Engineer’s services.
6.3 If Owner suspends the Project for more than 90 cumulative days for reasons other than the fault of Engineer, Engineer may terminate this Agreement by giving not less than seven (7) days’ written notice.
6.4 Owner may terminate this Agreement upon not less than seven (7) days’ written notice to Engineer for the Owner’s convenience and without cause. In the event of termination for convenience, Engineer shall be compensated for services performed prior to termination, plus a decommissioning fee as discussed in the agreement.
Article 7.0 DISPUTE RESOLUTION
7.1 MEDIATION. Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceeding by either party. If such matter relates to or is the subject of a lien arising out of the Engineer services, the Engineer may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of matter by mediation or by arbitration. The Owner and Engineer shall endeavor to resolve claims, disputes, and other matters in question between them by meditation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Owner currently in effect. Request for mediation shall be filed in writing with the other party to this Agreement and with the American Arbitration Owner. The request may be made concurrently with the filing of a demand for arbitration but, in such event, meditation shall proceed in advance of arbitration or legal or equitable proceeding, which shall be stayed pending meditation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. The parties shall share the mediator’s fee and any filing fee equally. The meditation shall be held in the place where the project is located unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
7.2 ARBITRATION. Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by meditation in accordance with Paragraph 15.1. Claims, disputes, and other matters in question between the parties that are not resolved by meditation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Owner currently in effect. The demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Owner. A demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for arbitration be made after the date when the institution of legal or equitable proceedings based on such claim, dispute or other meter in question would be barred by the applicable statute of limitations.
7.3 CLAIMS FOR CONSEQUENTIAL DAMAGES. The Engineer and the Owner waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination in accordance with Article 7.0. Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Engineer unless otherwise provided in this Agreement.
7.4 INDEMNIFICATIONS. The Client shall indemnify and hold harmless the Engineer and all of its personnel from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) arising out of or resulting from the performance of the services, provided that any such claims, damage, loss or expense is caused in whole or in part by the negligent act or omission and/or strict liability of the Client, anyone directly or indirectly employed by the Client (except the Engineer) or anyone for whose acts any of them may be liable. This indemnification shall include any claim, damage, or losses due to the presence of hazardous materials, or unforeseen conditions. It is expressly understood and agreed that to the fullest extent permitted by law, RAS liability arising from any claims, suits, demands, damages, losses, judgments, payments, awards, and expenses relating to the project, whether claimed by Client or any third party, shall be limited to and in no event exceed the lesser of two times RAS Basic Fee on the project or RAS’s available insurance proceeds. The client further agrees to reimburse RAS for any loss, expense, attorney’s fees, or costs incurred in the enforcement of any part of this agreement. RAS and Client waive consequential damages for claims, disputes or other matters in question arising out of or relating to this agreement.
7.5 ENGINEER TESTIMONY. If RAS is called upon by Client, or subpoenaed by any other person, to testify or produce records in an action at law, equity, arbitration, or in a pre-trial hearing or conference, as to any work performed by anyone in connection with this project, RAS shall be paid by the Client for all time spent while testifying and preparing therefore and producing such records at an hourly fee of $500/hour.
Article 8.0 INSURANCE
8.1 At all times during the Project, the Engineer, shall purchase insurance for protection from claims under workers’ compensation acts and other employee benefit acts which are applicable, claims for damages because of bodily injury, including death, and claims for damages, to property which may arise out of or result from the Engineer’s operations and completed operations under the Contract. Certificates of Insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire until at least thirty (30) days’ prior written notice has been given to the Owner. The insurance shall be placed with insurance companies authorized to do business in the State of Florida and rated A or better by the current edition of A.M. Best’s Key Rating Guide or as otherwise approved by the Owner.
8.2 COMPREHENSIVE PROFESSIONAL LIABILITY. The Professional Liability Insurance Policy must be written with a combined single limit of liability of not less than $1,000,000.00 for each occurrence of bodily injury and/or property damage and an annual aggregate of liability of not less than $2,000,000.00 for bodily injury and/or property damage, and an annual aggregate of liability of not less than $2,000,000.00 for professional malpractice, Engineer’s Protective Liability; for a period of two (2) years following the date of final payment for all services provided under this Agreement. Engineer shall furnish the Owner with a Certificate of Insurance. The Professional Liability Insurance Policy required herein shall have a "Per Location Aggregate" endorsement, as well as be on a "Claims-Made" policy. Coverage shall be no less than the limits carried by Engineer, or the limits required in this Contract, whichever is greater. Engineer 's insurance coverage is primary and Non-Contributory to any insurance of the Owner.
8.3 AUTOMOBILE LIABILITY. The Automobile Liability Insurance Policy carried by the Engineer on the date of this Agreement or a policy with similar coverages.
8.4 WORKERS’ COMPENSATION. Workers’ Compensation coverage with a policy limit of not less than $1,000,000.00 (employers liability coverage), including but not limited to, statutory benefits and limits which shall fully comply with all State and Federal requirements, unless the Engineer is exempt by Florida Division of Workers Compensation. Coverage shall be no less than the limits carried by Engineer, or the limits required in this Contract, whichever is greater. Engineer's insurance coverage is primary and Non-Contributory to any insurance of the Owner or contractor.
8.5 ADDITIONAL INSURANCE REQUIREMENTS. Insurance certificates and endorsements shall be emailed directly from the Engineer’s insurance agent to Owner. Engineer shall not make changes in or allow the required insurance coverages to lapse without the Owner’s prior written approval thereto. All policies for insurance must be endorsed to contain a provision giving the Owner thirty (30) day prior written notice by certified mail of any cancellation of that policy or material change in coverage. Should a notice of cancellation be issued for non-payment of premiums or any part thereof, or should Engineer fail to provide and maintain certificates as set forth herein, the Owner shall have the right, to pay such premium to the insurance company or to obtain such coverage and to deduct such payment from any sums that may be due or become due to Engineer, or to seek reimbursement for said payments from Engineer. Receipt and review by the Owner of any copies of insurance policies or insurance certificates shall not relieve Engineer of his obligation to comply with the insurance provisions of this Agreement. The insurance provisions of this Agreement shall not be construed as a limitation on Engineer’s responsibilities and liabilities pursuant to the terms and conditions of this Agreement.
8.6 ADDITIONAL INSURED. The Engineer shall name the Owner as an additional insured on Engineer’s liability insurance policy. The Owner and the Engineer agree that the naming of the Owner as an additional insured is not intended to make the Engineer’s insurer liable for claims that are due to the fault of the additional insured.
Article 9 MISCELLANEOUS
9.1 INDEPENDENT CONTRACTOR. This Agreement shall not be deemed to create in any manner any employee/employer relationship, partnership, joint venture, or investment vehicle between the Engineer and the Owner. The Engineer is an independent contractor. The Owner, pursuant to the terms of this Agreement, permits the Engineer to complete the Project.
9.2 ENFORCEMENT. If it becomes necessary to hire an attorney to enforce any provision of the Contract, including the Addendum, the prevailing party shall be entitled to recover their costs and attorneys’ fees incurred prior to suit, as well as in litigation, appeal and any arbitration, bankruptcy, or administrative proceedings. Any legal proceeding concerning this Contract and Addendum shall be brought in a court of law with competent jurisdiction in Broward County, Florida. Notwithstanding the provisions of the Contract, after mandatory mediation, there shall be no requirement for binding arbitration, unless the parties otherwise agree to same, and either party may initiate a case in a court of competent jurisdiction.
9.3 SEVERABILITY. If one or more of the provisions in this Agreement are deemed void by law, then such provision(s) shall be deemed automatically deleted and the remaining provisions will continue in full force.
9.4 NOTICES. All notices required or permitted hereunder shall be in writing and shall be deemed duly given upon receipt if either personally delivered, return receipt requested, or sent digitally by email with electronic signature, addressed to the party’s address set forth in Contract, or to such other address as any party may provide to the other parties in accordance with this paragraph. In the event any party intends to change it mailing address, such party shall, at least fifteen (15) business days prior to the intended change of address, provide notice to the other party of the intended change, the effective date of the change and the party’s new mailing address.
9.5 LEGAL COUNSEL. Each party represents and warrants that the party has sought the advice of an attorney of its own choice or has had the opportunity to seek the advice of an attorney of its own choice prior to signing this Agreement.
9.6 GOVERNING LAW, CONSENT TO PERSONAL JURISDICTION. This Agreement shall be construed, interpreted, enforced, and governed by and in accordance with the laws of the State of Florida, excluding the principles thereof governing conflicts of law. The Engineer and the owner hereby expressly consent to the personal jurisdiction of the state and federal courts located in the state of Florida for any lawsuit arising from or relating to this agreement.
9.7 WAIVER OF JURY TRIAL. To the extent permitted by applicable law, Engineer and the Owner, by execution hereof, knowingly, voluntarily and intentionally waives any right each may have to a trial by jury in respect of any litigation based on, or arising out of, under or in connection with this agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party with respect hereto.