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Abbie Jones Consulting, PSC
Terms and Conditions
This Agreement [AGREEMENT] is made by and between Abbie Jones Consulting. [CONSULTANT] and the undersigned [CLIENT]. The parties agree as follows:
1. SCOPE OF WORK; RELIANCE UPON DOCUMENTS
CONSULTANT shall perform such services as are described in this Agreement and any attachments hereto [THE WORK]. Unless agreed otherwise in writing between both parties, CONSULTANT may rely upon the accuracy of surveys, plans, and studies prepared by third parties and furnished by CLIENT, or third parties, to CONSULTANT, including the accuracy of the technical data, nontechnical data, interpretations or opinions contained therein.
2. FEES; INVOICES
The CLIENT shall pay CONSULTANT for the Work performed under this Agreement a sum to be calculated as described herein, on attachments to this Agreement or, if no such description is provided or any portion of the Work is not specifically provided for in said description, at the rates shown on CONSULTANT’s standard fee schedules which are in effect as of the time of execution hereof, or as may be otherwise specifically described herein. CONSULTANT will submit invoices to CLIENT no more than monthly and a final bill upon completion of the Work. Such invoices will show the appropriate line item charges. A more detailed separation of charges and back-up data will be provided at CLIENT’s request. Payment is due upon presentation of invoice and is past due fifteen (15) days from invoice date. CLIENT shall pay a late penalty of one and one-half percent (1½ %) per month (18% annually), on past due accounts.
If CONSULTANT personnel are called or subpoenaed for depositions, examinations, or court appearances in any dispute arising out of any project on which Work was performed in which CONSULTANT is not a party, CONSULTANT shall be reimbursed on a time and material basis in accordance with CONSULTANT’s then current, standard billing rates for such matters, including all out-of-pocket costs incurred in connection with such matters.
If the Project is delayed or if the CONSULTANT’s services for the Project are delayed or suspended for more than three months for reasons beyond the CONSULTANT’s control, the CONSULTANT may, after giving seven (7) days written notice to the CLIENT, terminate this Agreement, and the CLIENT shall compensate the CONSULTANT in accordance with the termination provision contained in this Agreement.
Owner agrees to be responsible for all fees of any collection agency, which may be based on a percentage at a maximum of 40% of the debt, and all costs and expenses, including reasonable attorney’s fees that we incur in such collection efforts.
3. ACCESS TO THE SITE
The CLIENT will provide for right of entry of CONSULTANT personnel and all necessary equipment in order to complete the Work. CLIENT represents and warrants that it has the authority to authorize CONSULTANT to perform the work.
While CONSULTANT will take all reasonable precautions to minimize any damage to CLIENT’s property, it is understood by the CLIENT that in the normal course of Work some damage may occur, the correction of which shall not be CONSULTANT’s responsibility.
4. CLIENT’S RESPONSIBILITIES
The CLIENT shall designate a person to act with authority on his behalf in respect to all aspects of the Project, shall examine and respond promptly to CONSULTANT’s submissions, and shall give prompt written notice to the CONSULTANT whenever he observes or otherwise becomes aware of any defect in or problem with the Project.
The CLIENT shall also provide to the CONSULTANT all criteria and full information as to his requirements for the Project, and shall:
• Guarantee access to and make all provisions for the CONSULTANT to enter upon public and private properties as necessary to accomplish the work;
• Provide such legal, accounting, independent cost estimating, and insurance counseling services as may be required for the Project;
• Unless otherwise specified in the AGREEMENT the furnish approvals and permits from all governmental authorities and/or agencies having jurisdiction over the Project;
• Provide the CONSULTANT with escorts and means of access to all areas of the Project; this being necessary for the orderly progress of the work, the CONSULTANT shall be entitled to rely upon the efficiency and completeness thereof; and
• Compensate the CONSULTANT for services rendered under this Agreement and pay all costs incidental to CLIENT furnished items.
5. UTILITIES
In the execution of its Work, CONSULTANT will take all reasonable precautions to avoid damage or injury to subterranean structures or utilities. The CLIENT agrees to hold CONSULTANT harmless for any damages to subterranean structures or utilities which are not called to CONSULTANT’s attention and correctly shown on the plans, or other documents, furnished by the CLIENT. Our general standard is ASCE SUE level C.
6. EXISTING AND/OR HIDDEN CONDITIONS:
A condition is hidden if it is concealed by existing finishes or features or if it cannot be investigated by reasonable visual observation. If the CONSULTANT has reason to believe that such a condition may exist, the CONSULTANT will notify the CLIENT who then shall authorize and pay for all costs associated with the investigation of such a condition and, if necessary, all costs necessary to correct said condition. If (1) the CLIENT fails to authorize such investigation or correction after due notification, or (2) the CONSULTANT has no reason to believe that such a condition exists, the CLIENT is responsible for all risks associated with this condition, and the CONSULTANT shall not be responsible for the existing condition nor any resulting damages to persons or property. Further, the CONSULTANT will not be required to execute any document that would result in certifying, guaranteeing or warranting the existence of conditions whose existence the CONSULTANT cannot reasonably ascertain.
7. OWNERSHIP AND REUSE OF DOCUMENTS
All reports, drawings, specifications, boring logs, field data, field notes, laboratory test data, calculations, survey data, estimates and other documents prepared by CONSULTANT, as instruments of service for this project, shall remain the property of CONSULTANT. CLIENT agrees that all reports and other work furnished to the CLIENT or its agents, which are not paid for, will be returned upon demand and will not be used by the CLIENT for any purpose whatsoever. All documents are for the exclusive use and benefit of the CLIENT only. Others who use the documents do so at their own peril. CONSULTANT consents that its information and reports may be furnished to and used by others participating in the financing and/or development of the project underlying the Work (and for reports involving real property transactions, other parties of the transaction), but only in the same manner and extent as if such others were the addressee and the CLIENT. The terms, conditions, and limitations of liability contained in the Agreement shall apply to others to whom CLIENT furnishes such information and reports. No one other than the CLIENT is authorized to rely, in any way, on any information or reports issued pursuant to this Agreement. Information contained in signed or sealed drawings should be deemed to be superior to electronic information.
8. DISPUTES
In the event that a dispute should arise relating to the obligations of the parties under this Agreement, the prevailing party shall be entitled to recover all reasonable costs incurred in connection with such dispute, including staff time, court costs, attorney’s fees and other related expenses.
9. PROFESSIONAL RESPONSIBILITY
CONSULTANT represents that the Work shall be performed in a manner consistent with that level of care and skill ordinarily exercised by other professionals under similar circumstances at the time services are performed. No other representation to the CLIENT, expressed or implied, and no warranty or guarantee is included or intended hereunder, or in any work performed under this Agreement.
CLIENT recognizes that subsurface conditions may vary from those encountered at the location where borings, surveys, or explorations are made by CONSULTANT and that the data interpretations and recommendations of CONSULTANT’s personnel are based solely on the information available to them. CONSULTANT will be responsible for those data interpretations, and recommendations, but shall not be responsible for the interpretation by others of the information developed.
10. LIMITATION OF LIABILITY
A. In no event shall CONSULTANT be liable for property damage, bodily injury, third party liability or any other claim, cost or expense directly or indirectly arising out of, resulting from, or relating to site conditions or substance whose presence poses an actual or potential threat to human health.
B. For claims not excluded by Paragraph A, the CLIENT agrees to limit CONSULTANT’s liability for any and all claims, losses, costs, or damages whatsoever on any project arising from this Agreement and/or performance of the Work by CONSULTANT under any theory of recovery, such that the total aggregate liability of CONSULTANT shall not exceed $50,000 or CONSULTANT’s total fee for the services rendered on the project, whichever is less. The CLIENT further agrees to require of any contractor and subcontractors an identical limitation of liability to CONSULTANT, which liability may arise on account of CONSULTANT’s performance of services or its acts, errors and omissions.
As used in this article 9, the term CONSULTANT shall include any parent, subsidiary or affiliated companies of CONSULTANT and any directors, officers and employees of any of the same.
11. TERMINATION OF SERVICES
This Agreement may be terminated by the CLIENT or by the CONSULTANT upon not less than seven days written notice should the other party fail to substantially perform in accordance with the terms of this Agreement through no fault of the party initiating termination. If this Agreement is terminated by the CLIENT, the CONSULTANT shall be paid for services performed to the termination notice date, including reimbursable expenses due plus termination expenses. Termination expenses are defined as reimbursable expenses directly attributable to termination, plus 15% of the total compensation earned to the time of termination to account for the CONSULTANT’s rescheduling adjustments, reassignment of personnel and related costs incurred due to termination.
12. REIMBURSABLE EXPENSES
Reimbursable expenses include actual expenditures made by the CONSULTANT, his employees, or his SUB-CONSULTANTS on behalf of the Project. Reimbursable expenses include, but are not necessarily limited to, the following: (a) expenses of transportation and living when traveling in connection with the Project; long distance calls; overnight mail; telecopies; (b) expenses of printing, reproduction, postage and handling of drawings and specifications, including duplicate sets at the completion of each phase of the Project for the CLIENT’s review and approval. These reimbursable expenses shall be billed as a multiple of 1.0 times the cost incurred by the CONSULTANT. Fees paid by CONSULTANT for (c) testing and/or for securing approval of authorities having jurisdiction over the Project and (d) expenses related to SUB-CONSULTANTS and specialists when authorized by the CLIENT, shall be billed as a multiple of 1.20 times the cost paid by the CONSULTANT.
13. INSURANCE
CONSULTANT represents and warrants that it and its agents, staff and consultants employed by it is and are protected by worker’s compensation insurance and that it has such coverage under public liability and property damage insurance policies which CONSULTANT deems to be adequate. Certificates for all such policies of insurance shall be provided to CLIENT upon request in writing. CONSULTANT shall not be responsible for any loss, damage or liability arising from any acts by CLIENT, its agents, staff or other consultants employed by CLIENT.
14. INDEMNIFICATION
The CLIENT shall indemnify and hold CONSULTANT harmless from and against any and all losses, claims (including third party claims), damages, judgments, fees, fines, penalties and other amounts (including, without limitation, any with respect to sickness, bodily injury, wrongful death and property damage), including attorney’s fees and court costs, arising directly or indirectly out of or alleged to have arisen out of the performance of Work under this Agreement or any breach by CLIENT of its obligations hereunder, which indemnity shall not be limited by reason of the existence or nonexistence of any insurance. The CONSULTANT is not obligated to indemnify the Client in any manner whatsoever for the Client’s own negligence. As used in this paragraph, the term CONSULTANT shall mean to include any parent, subsidiary or affiliated companies of CONSULTANT and any directors, officers and employees of any of the same.
15. ASSIGNS
Neither the CLIENT nor CONSULTANT may delegate, assign or transfer its duties or interest in this Agreement without the written consent of the other party.
16. RIGHT TO STOP WORK
Stopping the construction work is an extreme action which should be taken only by the CLIENT after giving serious consideration to the effects of such an order. Under no circumstances will CONSULTANT take the initiative in issuing this order. CONSULTANT will only provide data and recommendations.
17. FIELD MONITORING AND TESTING
If the Scope of Work may include construction administration, but not construction field monitoring and/or testing, CONSULTANT shall visit the project site at intervals appropriate to the stage of construction or as agreed to in writing by the CLIENT and CONSULTANT, in order to observe the progress and quality of the CLIENT’s work completed by the contractor. Such visits and observations are not intended to be an exhaustive check or a detailed inspection of the contractor’s work but rather are to allow CONSULTANT to become generally familiar with the work in progress and to determine in general if the work is proceeding in accordance with the contract documents.
CONSULTANT shall not supervise, direct or have control over the CLIENT’s work nor have any responsibility for the construction means, methods, techniques, sequences or procedures selected by the contractor nor for the contractor’s safety precautions or programs in connection with the work. These rights and responsibilities are solely those of the contractor in accordance with the contract documents. CONSULTANT shall not be responsible for any acts or omissions of the contractor, subcontractor, any entity performing any portion of the CLIENT’s work, or any agents or employees of any of them. CONSULTANT does not guarantee the performance of the contractor and shall not be responsible for the contractor’s failure to perform its work in accordance with the contract documents or any applicable laws, codes, rules or regulations.
18. SAFETY
Should CONSULTANT provide observations or monitoring services at the job site during construction, CLIENT agrees that, in accordance with the generally accepted construction practice, the contractor will be solely and completely responsible for working conditions on the job site, including the safety of all persons and property during the performance of the work, and for compliance with OSHA regulations. These requirements will apply continuously and will not be limited to normal working hours. Any monitoring of the contractor’s procedures conducted by CONSULTANT does not include review of the adequacy of the contractor’s safety measures in, on, adjacent to, or near the construction site.
19. CHANGES IN THE SCOPE OF SERVICES
The CLIENT may request changes in the Scope of Services of the Agreement to be performed hereunder. Such changes, including any increase or decrease in the amount of the CONSULTANT’s compensation, which are mutually agreed upon by and between the CLIENT and the CONSULTANT shall be incorporated into this Agreement by written amendment. Any changes made to the construction documents by the CLIENT, or by the CLIENT’s representatives, are strictly prohibited without the knowledge and written consent of the CONSULTANT. The CONSULTANT shall be released from any liability resulting from damages, injuries, and or death resulting from the unauthorized alteration of construction documents.
20. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL
This agreement shall be governed by the laws of the State of Kentucky and the United States. Venue for any dispute resolution proceeding arising out of our related to this Agreement shall only be in a court of competent jurisdiction in Fayette, Kentucky. To the full extent allowed by applicable law, CONSULTANT and CLIENT hereby waive the right to trial by jury in connection with any litigation or judicial proceeding relating to or concerning, directly or indirectly, this Agreement or the Work.
21. EXTENT OF AGREEMENT
This Agreement and attached exhibits, if any, represent, the entire agreement between CLIENT and CONSULTANT and supersedes all prior negotiations, representations and agreements, either oral or written. No modification to the terms hereof shall be made unless agreed to in writing by both parties.
22. SEVERABILITY
In the event any provision, or any portion of any provisions of this Agreement is held invalid, the other provisions of this Agreement and the remaining portion of said provision, shall not be affected thereby and shall continue in full force and effect.