EXHIBIT A
GENERAL TERMS AND CONDITIONS
The following General Terms and Conditions are applicable to Agreements between FERRANTELLO LAND SURVEYING P.C. and the Client, when attached to and made part of such Agreement or Proposals.
1.0 INVOICES, REIMBURSABLE EXPENSES, ESCALATION OF FEES
1.1 Invoices
FLSPC will submit invoices to Client on FLSPC standard invoice form, terms net zero (0). Partially completed items of work for which a fee has been specified will be billed based upon percentage of completion as estimated by FLSPC otherwise invoices will be based upon FLSPC Schedule of Standard Hourly Rates in effect at the time the work is performed. Past due balances are subject to interest of 1.5 percent per month (15%), or the maximum permitted under state law, whichever is less. FLSPC, after giving seven (7) days written notice, may suspend services under any Agreement until all past due accounts, including applicable interest, have been paid. In the event that the invoice is not paid voluntary and promptly, and must be referred to an attorney or agency for collection, the Client agrees to pay to FLSPC, reasonable collection and attorney’s fees equal to 25 percent (25%) of the total amount due at that time.
The minimum time segment for charging of survey field work is four (4) hours. The minimum time segment for charging of all other work is one-half hour. Where applicable, rental charges will be applied to the project to cover the cost of instrumentation and/or technical equipment.
1.2 Reimbursable
Reimbursable expenses are charged to the Client at cost plus twenty percent (20%).
1.2.1 Reproduction of plans, specifications and other documents, including plans and documents necessary for submission to regulatory agencies, but excluding documents reproduced for use by FLSPC and any of its consultants. FLSPC reproduction charges for documents reproduced by FLSPC are: photocopying: B&W (Black & White) $0.15/page; Color $2.20; job report backline/blueprint
paper – $0.45/sf (square foot); Sepia Paper – $1.00/sf; Mylar – $6.25/sf; Backline Presentation Paper – $3.00/sf; and Vellum Plots – $3.15/sf; E-Mail @ Time Rates.
1.2.2 Permit, Application and Filling fees advanced by FLSPC. In general, all processing fees including but not limited to permits and applications shall be the responsibility of the Client. .
1.2.3 The cost of equipment rental including where applicable equipment operators, and subcontracted services, such as authorized photogrammetric, testing services, geotechnical services, laboratory services, archeological services, and other specialized services by consultants, excluding those services which arc explicitly included in the FLSPC proposal. .
1.2.4 Expenses for the specific benefit of the Client consisting of travel, incidental expenses, and expendable materials and supplies purchased specifically for that project
1.2.5 If the services covered by this Agreement are subject to local or state taxes or fees (except state income taxes), such additional costs will be charged to the project and are subject to reimbursement as provided herein.
1.3 Escalation of Fees
1.3.1 Fees and schedule commitments are subject to renegotiations for unreasonable delay caused by the Client’s failure to provide specified facilities or Information, or for delays caused by unpredictable occurrences, or force majeure, such . us fires, floods, strikes, riots, unavailability of labor or materials or services, acts of God or of the public enemy, or acts or regulations of any governmental agency. Temporary work stoppage caused by any of the above may result in additional cost (reflecting a change in scope) beyond that outlined in this proposal;
1.3.2 FLSPC shall have the right to increase it’s compensation payable by the Client to FLSPC in the event that FLSPC must modify services, facilities or equipment to comply with laws or regulations that become effective after execution of this Agreement, provided that FLSPC give the Client thirty (30) days prior notice as to the cause for escalation and the additional amounts involved.
1.3.3 FLSPC. may make an annual adjustment to its Standard Hourly Rates on or about August of each year. Services performed on an hourly cost basis will be invoiced in accordance with the Rate Schedule in effect at the time such services are performed.
1.3.4 FLSPC reserves the right to make adjustments to fees after 1 year from submittal of proposal.
2.0 INSURANCE
FLSPC represents and warrants that it now has in full-effect and will maintain the following insurance’s for the duration of this project:
FLSPC will furnish to the Client certificates of insurance upon request Premiums for ‘insurance coverage in excess of these coverage’s when requested by the Client, will be charged to the project and are subject to reimbursement
2.1 Commercial General Liability Insurance covering as insured. FLSPC and as an additional insured Client with the following limits of liability: Personal Adv. Injury -General Aggregate Excess Liability- Umbrella and $1,000,000 for each occurrence $2,000,000 in the aggregate $4,000,000 for each occurrence $6,000,000 in the aggregate
2.2 Worker’s Compensation Insurance securing compensation for the benefit of FLSPC employees as required by the Worker’s Compensation Law. Premiums for additional insurance coverage required for work on or near the waterfront will be charged to the project and are subject to reimbursement
2.3 Comprehensive Automobile Liability Insurance covering owned, non-owned, and lured vehicles will be provided upon request
2.4 Professional Liability Insurance insuring against negligent acts, errors and omissions, by FLSPC. In the amount of $1,000,000 per claim with a $3,000,000 aggregate.
3.0 CLIENTS RESPONSIBILITIES
3.1 The Client shall provide all criteria and full information as to Client’s requirements for the Project; designate a person to act with authority on Client’s behalf in respect to all aspects of the Project; examine and respond promptly to FLSPC submissions, and give prompt written notice to FLSPC whenever he observes or otherwise becomes aware of any defect in the work.
3.2 The Client shall provide right of entry for FLSPC personnel and equipment necessary to complete the work.
3.3 While FLSPC will take all reasonable precautions to minimize any damage to the property, it is understood by Client that in the normal course of work some damage may occur, the correction of which is not part of this agreement
3.4 The Client shall be responsible for payment of all fees in connection with the Project Payment of Ices by Client is NOT contingent upon receipt of Agency Approvals.
4.0 COMMENCEMENT AND COMPLETION OF WORK
4.1 FLSPC shall commence work on this project after receipt of a signed Proposal which establishes our Agreement for Professional Services at a schedule agreed upon by FLSPC and Client.
4.2 Proposals that have been submitted but not signed will be considered as being accepted if the client verbally instructs FLSPC to proceed;
4.3 Should the performance or completion of the work by FLSPC hereunder be delayed by flood, earthquake, fires, strikes, governmental orders or any other similar or dissimilar causes beyond the control of FLSPC or due to changes, delays, acts or omissions, by Client, contractors or their agents and representatives, then the time for performance or completion by FLSPC hereunder shall be extended for the period of such delays.
5.0 CHANGED CONDITIONS
Certain conditions may arise during the performance of our services which may differ significantly from those assumed to exist when the Scope of Services was prepared. If, in the opinion of FLSPC, if this Agreement is no longer adequate in light of occurrences or discoveries that were not originally contemplated by or known to us, we have right to renegotiate the Agreement by first identifying the Changed Condition and informing the Client. The Client and FLSPC shall promptly and in good faith enter into renegotiation of the Agreement to help us to meet the Client’s needs. If renegotiated terms cannot be agreed to, the Client agrees that FLSPC has an absolute right to terminate this Agreement.
6.0 COMPLIANCE WITH CODES AND STANDARDS
FLSPC services shall be consistent with sound engineering and surveying practices and shall incorporate those publicly announced federal, state and local laws, rules, regulations, codes and standards that are applicable at the time FLSPC rendered their services. In the event of change in a law, rule, regulation, code, standard or similar document FLSPC shall assess its impact. If, in FLSPC professional opinion, the impact is such to significantly reflect FLSPC fees, costs or anticipated completion date, a Changed Condition shall be deemed to exist and shall be dealt with pursuant to Section 5. In any event, the Client waives any claim against FLSPC and agrees to defend, indemnify and hold FLSPC harmless for any claim or liability for injury or loss allegedly arising from FLSPC failure to abide by federal, state and local laws, rules, regulations, codes and standards that were not in effect or publicly announced at the time when FLSPC otherwise would have incorporated their intent into the work. The Client further agrees to compensate FLSPC for any time spent or expenses incurred by FLSPC in defense of any such claim, in accordance with FLSPC prevailing fee schedule and expense reimbursement policy and the statements for legal services rendered to FLSPC.
7.0 MAINTENANCE OF PROFESSIONAL STANDARDS AND ETH1CS
The Client recognizes that FLSPC services in all cases must be rendered in accordance with prevailing professional standards and ethics, as well as certain laws or regulations that apply specifically to FLSPC or to the engineering and surveying professions. Services performed by FLSPC under this Agreement will be conducted in a manner consistent with the level of care and skill originally exercised by members of the profession currently practicing under similar conditions. NO OTHER WARRANTY, EXPRESSED OR/IMPLIED, IS MADE If a situation emerges that causes FLSPC to believe compliance with the Client’s wishes could result in FLSPC violating an applicable provision or aspect of professional standards or ethics, laws of regulations, FLSPC shall so advise the Client. The Client and FLSPC shall immediately enter into discussions to arrive at a mutually satisfactory solution. Failing achievement of a solution, either party may terminate this Agreement in accordance with termination provisions stated herein.
8.0 OWNERSHIP OF DOCUMENTS
8.1 All reports, studies, plans and specifications, logs, field data, field notes, laboratory test data, calculations, estimates and other documents prepared by FLSPC as instruments of services, shall remain the property of FLSPC.
8.2 Client agrees that all reports and other work furnished physical, digital and other to the Client or his agents, which are not paid for, will be resumed upon demand and will not be used for any purpose whatsoever.
9.0 DEFECTS IN SERVICES
The Client and (the Client’s personnel, contractors and subcontractors) shall promptly report to FLSPC any defects or suspected defects in FLSPC work or services, in order FLSPC may take prompt, effective measures which in FLSPC opinion will minimize die consequences of a defect in service.
10.0 INDEMNIFICATION AND LIMITATION OF LIABILITY
10.1 FLSPC agrees to hold the Client harmless from and against all claims arising out of the negligent professional acts, errors and omissions of FLSPC in connection with the performance of the work described in this Agreement,
10.2 FLSPC shall not be responsible for the acts or omissions of the Client, contractor or any third parties in connection with or arising out of the project. The Client hereby holds harmless and indemnifies FLSPC against all claims, damages, costs, suits, expenses, and attorney’s fees which may be incurred by FLSPC which arise out of the foregoing. Expenses shall include, but not be limited to time charges by FLSPC partners and employees at FLSPC then standard hourly fees.
10.3 The Client agrees FLSPC aggregate liability to the Client and to all construction contractors and subcontractors on the project, due to FLSPC professional negligent acts, errors or omissions, shall not exceed FLSPC total fee for services rendered on the project
10.4 The Client shall make no claim for professional negligence, either directly or in a third-party claim, against FLSPC unless the Client has first provided FLSPC with a written certification executed by an independent design professional currently practicing in the same discipline as FLSPC and licensed in the state in which the project for which FLSPC services were rendered is located This certification shall: a) identify the name and license number of the certifier; b) specify each and every act or omission that the certifier contends is a violation of the standard of care expected of a design professional performing professional services under similar circumstances; and c) state in complete detail the basis for the certifier’s opinion that each such act or omission constitutes such a violation. This certificate shall be provided to FLSPC not less than thirty (30) calendar days prior to the presentation of any claim or the institution of any arbitration or judicial proceeding.
10.5 The Client recognizes that topographical mapping prepared from aerial photography is subject to any inherent margin of error. Client agrees that FLSPC shall not be liable for any site work changes due to differences between actual site conditions and conditions depicted on topographic mapping used to prepare plans for the Project.
11.0 DISPUTES
11.1 In the event that a dispute should arise relating to the performance of the services to be provided under this Agreement, and should that dispute result in litigation in which FLSPC prevails, it is agreed that FLSPC shall be entitled to recover all reasonable costs incurred as a result of the claim, including staff time, court costs, attorney’s fees and other claim-related expenses.
11.2 Notwithstanding the foregoing, FLSPC shall have the right to submit any controversy or claim arising out of or relating to this contract, or the breach thereof, to binding arbitration administered by the American Arbitration Association in accordance with the Construction Industry Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
11.3 The Client recognizes FLSPC right not to release documents until the Client has made the account receivables current, excluding only any billed fees in dispute, providing the Client has notified FLSPC in writing within thirty (30) days of the invoice date identifying the portion of the fees in dispute and the reason for the dispute. All undisputed fees on the disputed invoice shall be paid in accordance with these terms.
12.0 TERMINATION
12.1 This Agreement may be terminated by either party upon ten (10) calendar days written notice in the event of substantial failure by the other party to perform in accordance with the terms thereof. Such termination shall not be effective if that substantial failure has been remedied before expiration of the period specified in the written notice. In the event of termination, FLSPC shall be paid for services performed to the termination notice date plus reasonable termination expenses.
12.2 This Agreement may be terminated by FLSPC, pursuant to Section 5 and 7 thereof, upon ten (10) calendar days written notice.
12.3 In the event of termination, or suspension for more than three (3) months, prior to completion of all work contemplated by this Agreement. FLSPC may complete such analysis and records as are necessary to complete its flies and may also complete a report on the services performed to the date of notice of termination or suspension. The expenses of termination or suspension shall include all direct costs of FLSPC in completing such analyses and reports. A final invoice will be calculated on the first or fifteenth of the month (whichever comes first) following the end of the cancellation period the (effective date of cancellation).
12.3.1 Where method of contract payment is lump sum, the final invoices will be based on the percentage of work completed to the effective date of cancellation, plus 3 percent (3%) of the billings to such date as a closeout cost.
12.3.2 Where method of contract payment is based on time and materials, the final invoice will include all services and direct expenses associated with the project up to the effective date of cancellation, plus 3 percent (3%) of the billings so such date as a closeout cost
12.3.3 Where method of contract payment is cost plus a fixed fee, the final invoice will include all costs to date of termination and a pro-rated share of the fixed fee plus 3 percent (3%) of the billings to such date as a closeout cost. The closeout cost referred to in 12.3.1 , 12.3.2 and 12.3.3 herein is not to be considered as a penalty, but represents an allowance for demobilization of personnel and equipment and costs not available on short notice.
13.0 GOVERNING LAW
The laws of the state in which the office of FLSPC, performing the work under this Agreement, is domiciled will govern the validity of this Agreement, its interpretation and performance, and remedies for contract breach or any other claims related to this Agreement.
14.0 ASSIGNS.
The Client may not delegate, assign, sublet or transfer his duties, obligations or interest in this Agreement without the Written consent of FLSPC.
Surveying Notes:
Surveys/Mapping mentioned above shall be prepared to assist in obtaining permits, certificates of occupancy and final approvals from local municipalities and agencies. Any other use of said surveys/mapping shall not be authorized, certified nor guaranteed by the surveyor. Completeness and accuracy of all work to be performed shall be subject to accessibility, visibility, and condition of structures at time of survey. Surveyor shall not be responsible for measuring/mapping structures/features that are buried/backfilled. Completeness and accuracy of all work to be performed shall be subject to accessibility, visibility, and condition of items to be measured and/or observed at time of survey. Surveyor shall not be responsible for measuring/mapping sub-surface structures/features. Any delay in progress of work and/or additional site visits required due to site conditions unsuitable for surveying services or visibility, accessibility, and condition constructed elements shall be billed at current time rates. Title Surveys shall be certified to the client, the client’s title insurance company and lending institution only.
A “Construction Staking Diagram” shall be provided to the contractor/builder subsequent to the setting of stakes for construction purposes. It is mandatory that the contractor/builder review the “Construction Staking Diagram” and inspect the physical stakes set on site and report any discrepancies, errors, or other concerns prior to excavation and/or construction. Replacement of lost or damaged stakes shall be billed at current time rates. Above described services do not include unless clearly specified above. Additional items, certifications and/or specifications, such as ALTA/NSPS certification, that may be required by the client, title insurer, or lending institution. Investigation and as-constructed mapping of underground storm water drainage and sanitary/sewer system structures. Location of underground utilities and structures, if any. Location of vegetation and trees. Identification of wetlands, soil conditions, and other geological features. Hydrological surveying such as measurements of tidal water locations and elevations; soundings; and other measurements related to water features.
Preparation of boundary/title survey.
Utility and Subsurface Notes:
Above described services do not include unless clearly specified above. Locations, sizes, types, and status of underground utilities shall be based on underground utility mark-out to be provided by the contractor/builder and will not be guaranteed as to accuracy and/or completeness by the surveyor. Verification of all underground structures and utilities is mandatory prior to excavation and/or construction activities.
Locations, types, and sizes of constructed underground drainage structures, sanitary septic systems, sanitary sewer house connections, and water services shall be based on actual field measurements made available at time of “Final Survey” and/or information to be provided by the contractor.
Drainage and sanitary structure “As-Built” information to be shown on the “Final Survey” shall be based on actual field measurements available at time of field survey; utility mark-out, if any, provided by the client/contractor; and construction documents provided by the contractor.
Client responsible for all fees associated with contracting an independent utility detection company, if required.
Existing site improvements, topography, and conditions as shown on mapping prepared by another professional may be relied upon for all proposed work described above. Ferrantello Group PC shall not be liable for any claims or damages that may arise due to errors or omissions on above stated mapping.
Surveys, site plans, and other information provided by the client shall be relied upon for above stated tasks. Ferrantello Group PC shall not be liable for any claims or damages that may arise due to errors or omissions related to said surveys, site plans, and other provided information.
Locations, types, and sizes of constructed underground drainage structures, sanitary septic systems, sanitary sewer house connections, and water services shown shall be based on actual field measurements made available at time of survey and/or utility mark-outs and other information provided by the client/contractor.
Locations, sizes, types, and status of underground utilities based on underground utility mark-outs and information provided by others will not be guaranteed as to accuracy and/or completeness by the surveyor. Verification of all underground structures and utilities is mandatory prior to excavation and/or construction activities.
