TERMS AND CONDITIONS – PROJECT TEST FIT AND CONCEPT DESIGN SERVICES
The VBC | Studio hourly rates described below will be billed for Client requested items that are not described under the Services and Documentation Options above.
President - $500.00 | hour
Vice President | Principal - $275.00 | hour
Project Architect | Project Designer | Project Engineer - $500.00 | hour
Design Staff | Project Drafter | Engineering Staff - $150.00 | hour
Administrative Staff | Accounting - $75.00 | hour
BILLING AND PAYMENT TERMS
Client agrees to pay VBC | Studio’s invoice upon receipt. If payment is not received within thirty (30) days from the invoice date, Client agrees to pay a service charge on the past due amount at 1.5% per month or the maximum prevailing legal rate whichever is less, together with reasonable collections fees if applicable. Except as otherwise provided herein under “Claims,” VBC | Studio reserves the right to suspend all work until payment is received. No deduction shall be made from invoices on account of liquidated damages or other sums withheld from payments to Contractor or others. These payment terms may be amended in the Proposal.
PRELIMINARY ZONING ANALYSIS TERMS
Preliminary zoning analysis confirms bulk regulations such as building height, building area, FAR, open space, setbacks and other similar items. Such preliminary analysis will not include in depth bonus research or confirmation, variance research or recommendations, or sealed findings. These are available for fee upon request.
DOCUMENTS AND DOCUMENT DELIVERY
VBC | Studio, Architect, and Engineers will furnish to the Client the agreed upon number of reports and supporting documentation as outlined in the Proposal. These are instruments of service and are furnished for Client’s improvement of the Property noted in the Agreement. These instruments of service are not for advertising, general publication, or other type of distribution and are subject to the following restrictions:
All documents generated by VBC | Studio or Architect under this Agreement shall remain the sole property of VBC | Studio or Architect. Upon request and payment of all costs incurred, Client is entitled to digital and physical copies of all papers, document, drawings, and renderings. Client also agrees to obtain our written consent for any exception for use not as outlined herein. Any unauthorized use or distribution of the instruments of service shall be at the Client’s and the recipient’s sole risk and without liability of VBC | Studio or Architect. Upon receipt of payment for work completed, VBC | Studio, the Architect, and Engineers shall grant the Client a nonexclusive, irrevocable license to use the Design Drawings solely and exclusively for the purposes of constructing, using, maintaining, altering, improving and adding to the subject Property, provided that Client substantially performs its obligations, including payment of all sums when due hereunder. If VBC | Studio or the Architect rightfully terminate this Agreement for cause, then the license granted herein shall terminate. VBC | Studio, The Architect, and Engineers shall otherwise retain all common law, statutory and other reserved right and title to their design, design materials, documentation and standards, any associated imagery, and associated trademarks, including copyrights.
Client shall furnish documents or information reasonably within Client’s control and deemed reasonably necessary for proper performance of design or professional services rendered by VBC | Studio or Architect. Architect or Engineers may rely upon Client-provided documentation in performing the professional services required under this Agreement, however, Architect or Engineers assumes no responsibility or liability for their accuracy. Client-provided documents will remain the property of the Client.
VBC | Studio, Architect, and Engineers agree to deliver all presentation documents to the Client in digital PDF format. Materials printed as required for distribution and printed materials requested by the Client shall be provided on an expense reimbursable basis as described herein.
PROFESSIONAL LIABILITY | INSURANCE
VBC | Studio has agreed to engage the Architect and Engineers for the purposes of efficiency. VBC | Studio, as an entity, is providing professional services but cannot be a licensed design professional, nor a licensed architect, due to regulatory restrictions, but the Architect and Engineers employed by or engaged by VBC | Studio are licensed Architects and | or Design Professionals in the state in which the Project is located and hold all necessary and appropriate professional liability insurances. All such insurance coverage forms and amounts shall be provided. VBC | Studio maintains the insurances as noted below:
Comprehensive general liability insurance providing coverage for bodily injury, property damage, operations, independent contractors, and contractual liability with respect to liability assumed by VBC | Studio hereunder. The limits of coverage for such insurance shall not be less than $1,000,000.00 combined single limit per occurrence and $2,000,000.00 annual aggregate. Umbrella liability coverage shall not be less than $10,000,000.00 annual aggregate.
Professional liability insurance with respect to liability assumed by VBC | Studio hereunder. The limits of coverage for such insurance shall not be less than $2,000,000.00 combined single limit per occurrence and $2,000,000.00 annual aggregate.
Worker’s Compensation as described by the state in which the Services are performed; or if Worker’s Compensation is not required by the law of the state, Employers Liability insurance with limits of at least $500,000.00 for each occurrence or disease. With the exception of Workers’ Compensation, the policies shall include Client as additional insured with respect to matters arising out of VBC | Studio’s performance, or the performance of VBC | Studio’s independent contractors of the Services under this Agreement and shall include a waiver of subrogation and waiver of insured vs. insured exclusion regarding Client. Upon execution of this Agreement VBC | Studio shall furnish to Client certificates of such insurance issued by the insuring carrier.
LIMITATION OF LIABILITY
In recognition of the relative risks and benefits of the project to both the Client and VBC | Studio, the risks have been allocated such that the Client agrees, to the fullest extent permitted by law, to limit the liability of the VBC | Studio and its subconsultants to the Client and to all construction contractors and subcontractors on the project for any and all claims, losses, costs, damages of any nature whatsoever and claim expenses from any cause or causes, so that the total aggregate liability of VBC | Studio and its subconsultants to all those named shall not exceed the value of VBC | Studio’s total fee for services rendered on this project. Such claims and clauses include, but are not limited to, negligence, professional errors or omissions, strict liability and breach of contractor warranty.
It is understood and acknowledged that the Services hereunder, which VBC | Studio will provide to Client through the Architect and Engineers, will be in the capacity of an independent contractor and not as an employee or agent of the Client. VBC | Studio and/or Architect shall control the conditions, time, details, and means by which the Services are performed, subject to this Agreement. The Client shall have the right to inspect the work as it progresses solely for the purpose of determining whether the work is completed according to the applicable specifications set forth in this Agreement.
VBC | Studio will defend, indemnify and hold harmless Client, its officers, directors, employees and agents from and against claims, damages, losses, fines, costs, liabilities and expenses, including but not limited to reasonable attorney’s fees and costs (collectively, “Claims”) in favor of any person, arising out of or resulting from (i) the failure of VBC | Studio to make prompt and proper payments to its subcontractors or suppliers for labor, materials or equipment; (ii) claims or liens filed; (iii) losses caused by work related to the Services not progressing in accordance with the agreed upon schedule due to VBC | Studio’s acts or omissions and the acts and omissions of those for whom VBC | Studio is legally responsible; (iv) material breach of any of VBC | Studio’s obligations, representations or warranties under this Agreement; (v) any violation of any federal, state or local law, rule, regulation or ordinance, including without limitation, any environmental laws by VBC | Studio or its consultants; or (vi) any violation of any permit or other approval of a public authority applicable to the work required for the Services, provided that the foregoing indemnity shall not apply to any Claims caused by the willful acts or gross negligence of Client and its agents, subcontractors and employees.
Client shall defend, indemnify and hold harmless VBC | Studio, its officers, directors and employees from and against Claims asserted by any third person or entity to the extent such Claims arise out of or result from (i) the use of the Design Drawings without retaining VBC | Studio; or (ii) the work of any third party professionals retained directly by Client including, but not limited to, civil engineers, geotechnical engineers or environmental engineers or consultants; or (iii) personal injury or property damage not caused in whole or in part by VBC | Studio or its consultants, but only to the extent caused by the willful misconduct or gross negligence of Client, its agents, subcontractors and employees.
Client may terminate this Agreement in the event VBC | Studio breaches any of its material obligations hereunder and does not cure such breach within fifteen (15) calendar days of receipt of written notice from Client, provided if VBC | Studio has begun to cure such breach within this time period and is making good faith efforts to cure, the cure period shall be extended for the period of time for VBC | Studio to fully cure the breach.
VBC | Studio may terminate this Agreement in the event Client breaches any of its material obligations hereunder and does not cure such breach within fifteen (15) days of receipt of written notice from VBC | Studio. In the event of such termination, Client shall pay VBC | Studio for Services performed, and expenses incurred prior to the date of such termination.
Upon termination of this Agreement for any reason, Client shall make all payments owed for work performed until the time of termination to VBC | Studio. VBC | Studio shall deliver to Client all work in process, drafts, and other materials developed in connection with the Services. Upon termination VBC | Studio further shall deliver to Client any other materials, documentation or information necessary for Client to complete, or have completed, the Services.
OWNERSHIP OF DESIGN
Upon receipt of payment for work completed, VBC | Studio, the Architect, and Engineers shall grant the Client a nonexclusive, irrevocable license to use the Design Drawings solely and exclusively for the purposes of constructing, using, maintaining, altering, improving and adding to the subject Property, provided that Client substantially performs its obligations, including payment of all sums when due hereunder. If VBC | Studio or the Architect rightfully terminate this Agreement for cause, then the license granted herein shall terminate. VBC | Studio, The Architect, and Engineers shall otherwise retain all common law, statutory and other reserved right and title to their design, design materials, documentation and standards, any associated imagery, and associated trademarks, including copyrights.
VBC | Studio and Architect shall employ the skill and standard of care expected of architects experienced in the administration of projects similar to the Project, including without limitation, in researching zoning and other regulations affecting the property and designing the Project such that it conforms to such regulations. Application of regulation by various governing authorities is not always equivalent or analogous and guidance may be differing and/or conflicting as to process or regulatory interpretations. VBC | Studio and Architect will consult with government review bodies in order to guide the documentation and application process and shall make the application in an efficient manner, providing revisions or edits if necessitated to conform with applicable codes, laws or regulations based on regulatory or governmental review. Client acknowledges that delays may occur due to such conflicting guidance or opinions in the normal course of business and that VBC | Studio and Architect do not offer legal services, including but not limited to the interpretation of law, and therefore VBC | Studio and Architect shall rely upon Client’s disclosure of Client’s property rights and is not responsible for any delay, extra costs, or other damages which may occur as a result of their reliance upon Client’s disclosure.
In the event of a dispute between the parties that results in Client withholding approval of all or a portion of a payment in good faith and, only such portion of a payment as may reasonably be necessary to protect Client from loss or damage based on actual circumstances, then in such instance Client shall provide written notice to VBC | Studio of (i) the reason for withholding, and (ii) the remedial action necessary to cure such condition and VBC | Studio shall have fifteen (15) days in which to resolve the condition, or if the condition cannot be resolved in fifteen days, then such time as may be reasonably required to resolve the condition as agreed by the parties. VBC | Studio shall continue to perform the work hereunder until the reasons for withholding are resolved, in which event Client shall promptly pay to VBC | Studio all amounts previously withheld in accordance with the Payment Terms herein. In the event the parties are unable to resolve the dispute after a period of fifteen (15) days, then the parties agree to submit such dispute to arbitration. Any arbitration shall be conducted by an arbitrator experienced in Architecture or Engineering field and the arbitrator’s decision shall be considered final and binding and judgment may be entered thereon. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation of all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorney’s fees. The non-prevailing party shall pay all costs incurred in defending the claim including all reasonable attorney’s fees.
Client agrees to advise VBC | Studio of any hazardous substance or condition known or that reasonably should be known by Client, existing in, on, under or near the site that present a potential danger to human health, the environment, or equipment. Client’s obligation to disclose hazardous substances or conditions “near” near the Project site is limited to those sites identified in the Phase I Environmental Assessment prepared for Client by Earth Engineering, Inc., a copy of which Client shall provide to VBC | Studio for review upon execution of this Agreement.