- Professional Services: CLIENT requests ENGINEERS and ENGINEERS agree only to perform the professional services described herein subject to the terms and conditions hereinafter set forth. ENGINEERS makes no warranty, expressed or implied, with respect to its professional services to be rendered pursuant to this Agreement, including findings, designs, plans and specifications, or recommendations, except that they will be performed in accordance with generally accepted professional practices.
- Scope of Work: ENGINEER’S scope of work shall be that as defined and limited to the services and work identified on ENGINEER’s service invoice.
- Reliance on Provided Information: Representatives of Pool Engineering Inc. do not inspect the project site and will rely on information provided by the client in order to determine the adequacy of the provided work products for the actual site conditions. Should site conditions vary from that covered by ENGINEER’s work product, it is the responsibility of the client, contractor or owner to notify Pool Engineering Inc. and obtain applicable solutions prior to construction.
- Responsibility for Geotechnical Information: Client shall acknowledge that Pool Engineering Inc. recommends that the client, property owner and/or pool contractor retain a licensed geotechnical consultant to obtain geotechnically related design criteria for the proposed pool site. It is the responsibility of the client, property owner and/or pool contractor to require that the licensed geotechnical consultant confirm that the pool structural plans provided meet the requirements of the project site and the geotechnical report. When a geotechnical report has not been provided to PEI, it is the owner and/or contractor’s responsibility to verify that the site geotechnical conditions are suitable for construction of the proposed pool based on the presumptive soil conditions stated on the PEI plans being used.
- Unavoidable Delay: ENGINEERS shall not be responsible for delays caused by factors beyond ENGINEERS’ control, including but not limited to, strikes, lockouts, accidents, acts of God, weather, surface or subsurface ground conditions, or by reason of action, inaction, delay, or changes in rules, regulations or policies of any governmental agency, district, utility company, or CLIENT, its agents or any other person.
- Underground Improvements/Obstacles: The existence, location, type and size of any underground utilities, improvements and/or obstacles WILL NOT be determined by ENGINEERS. ENGINEERS make no promise, representation, or warranty, expressed or implied, as to the existence, location, type or size of any underground utility, improvement or obstacle. CLIENT agrees to include as a condition of any construction contract relating to the project the requirement that the contractor verify the existence, location, type and size of any underground utilities, improvements or obstacles, whether shown on any construction plan or not, and if such requirement is not included in such construction contract, or if the contractor fails to verify the existence, location, type and size of any underground utilities, improvements or obstacles, ENGINEERS shall not be liable for any delays, expenses or liability suffered by CLIENT, and CLIENT agrees to defend and indemnify ENGINEERS against any loss, damage, liability and costs, including attorneys’ fees, suffered or claimed by any other person by reason of the existence of any underground utility, improvement or obstacle, and any additional cost incurred by ENGINEERS shall be deemed extra work for which ENGINEERS will be paid pursuant to Paragraph 7.
- Work Product: All plans, drawings, designs, specifications, field notes, documents, papers and other work product of ENGINEERS, and all copies thereof, are and shall remain the sole property of ENGINEERS. Upon premature termination of this Agreement, or if ENGINEERS has not been paid in full for such work, ENGINEERS shall have no obligation to provide any work product or information to CLIENT. All ENGINEERS work product shall be considered the intellectual property of ENGINEER.
- Intended Use: All final plans, drawings, designs, specifications, or other documents and copies thereof, prepared by ENGINEERS shall be used only in connection with the project for which they are prepared. CLIENT agrees to defend and indemnify ENGINEERS against all loss, damage, liability, and costs, including attorneys’ fees, arising out of any other use or the reuse of the plans, drawings, designs, specifications, or other documents by CLIENT or any other person unless such use or reuse has been first expressly authorized in writing by ENGINEERS. CLIENT is granted a limited non-exclusive and non-transferable license to construct only one of the intended projects at the intended site [TL3] using the provided construction drawings. In the event any deviations from or changes to the final plans, drawings, designs, notes, specifications, or other documents are made by CLIENT or by any person other than ENGINEERS, CLIENT assumes any and all risk and liability arising out of or resulting from such deviations or changes, and CLIENT agrees to indemnify ENGINEERS against all loss, damage, liability and costs, including attorneys’ fees, as a result of such deviations or changes.
- Changes: It is agreed that changes in the Scope of Work requested by CLIENT or by reason of revisions or changes in any applicable law, regulation, policy, standard or personnel of any governmental agency, district or utility company having jurisdiction over all or any part of the project after the date of this Agreement shall constitute Extra Work, and ENGINEERS shall be compensated for said Extra Work as agreed between ENGINEERS and CLIENT or on a time-and-materials basis pursuant to ENGINEERS’ then effective rate schedule. CLIENT also understands and agrees that the costs of ENGINEERS’ services are subject to change due to conditions encountered during the course of furnishing services, including but not limited to changes in the Scope of Work, delays, unanticipated or additional requirements imposed by government agencies, districts, utility companies, or other persons, acts of God, or actions of other parties.
- On-Site Construction Observation Limitations: Except for the interpretation of ENGINEERS’ plans and specifications, CLIENT agrees that ENGINEERS will not perform on-site engineering or construction observation with respect to this project unless specifically provided for by separate Agreement. Unless otherwise specifically provided by separate Agreement, such construction observation will be performed by others, and CLIENT agrees to defend and indemnify ENGINEERS against any and all liability arising from or relating to the performance of construction observation by such other persons.
- On-Site Engineering Limitations: ENGINEERS are not responsible for the completion or the quality of performance of contract(s) by, or the acts, errors or omissions of, the construction contractor(s), subcontractor(s), materialmen or other third parties. ENGINEERS do not assume responsibility for methods or equipment used by any contractor, for safety of construction work, or for compliance by any contractor with applicable laws and regulations. It is further understood and agreed that any on-site engineering during construction, or construction observation provided by ENGINEERS pursuant to the express written agreement of ENGINEERS, shall be for the purpose of determining compliance with the technical provisions of the project specifications, and shall not constitute any form of guarantee with respect to the performance of work by any contractor.
- Safety: CLIENT agrees that the construction contractor(s) will be required to assume sole and complete responsibility for job site conditions during the course of construction of the project, including the safety of all persons and property; that this requirement shall be made to apply continuously and not be limited to normal working hours, and CLIENT further agrees to defend and indemnify ENGINEERS against any and all liability in connection with the performance of construction activities on this project excepting liability arising from the sole negligence of ENGINEERS.
- Permits and Access: CLIENT agrees to pay the costs of checking and inspection fees, zoning, annexation and other applicable fees, assessment fees, soils engineering fees, soils testing fees, and all other professional service fees, permits, bond premiums, title company charges, blueprints and reproductions, and all other charges and expenses necessary for performance relating to the Scope of Work.
- Limitation of Liability: Notwithstanding any other provision of this Agreement to the contrary, CLIENT agrees to limit ENGINEERS’ liability to CLIENT for damages caused by ENGINEERS’ negligent acts or omissions, regardless whether such professional negligence is the sole or contributing cause to CLIENT’s damages, to a total amount not-to-exceed $5,000 or all fees paid to ENGINEERS relating to the Scope of Work, whichever is greater.
- Mediation; Arbitration of Fee Disputes: CLIENT and ENGINEERS agree that any claim, dispute or controversy relating to the subject matter of this Agreement shall be submitted to non-binding mediation by The American Arbitration Association (“AAA”) prior to the initiation of arbitration or litigation, unless both parties in writing agree otherwise. The cost of said mediation shall be paid one half by each party.
- Should mediation fail to resolve the claim, dispute, or controversy, if the dispute relates to fees and/or costs claimed by ENGINEERS in an amount less than $5,000, such dispute shall be submitted to binding arbitration by one arbitrator pursuant to the then applicable AAA Construction Industry Arbitration Rules, and such arbitration shall be held at Orange County, California. The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
- Disputes relating to fees and/or costs claimed by ENGINEERS in excess of $5,000, and any other claim, dispute or controversy relating to the subject matter of this agreement, shall not be submitted to arbitration, but may be litigated by either party.
- Further, mediation and arbitration shall not apply to any dispute with respect to which ENGINEERS elect to enforce a design professional or mechanics’ lien, nor shall any obligation to arbitrate prohibit ENGINEERS from commencing legal action to enable ENGINEERS to record a Notice of Pending Action, for an order of attachment, receivership, injunction or other provisional remedy.
- Attorneys Fees: Should arbitration or litigation be commenced between the parties hereto concerning any provision of this Agreement, or the breach thereof, or the rights and duties of either party with respect thereto, the prevailing party shall be entitled to reasonable attorneys fees.
- Default: Notwithstanding CLIENT’S continuing obligation to pay the indebtedness within 30 days of the date of the billing, and interest charges thereon, ENGINEERS shall also have the default in payment a material breach of this agreement and shall have the right to immediately stop work, or, at ENGINEERS’ option, to continue performing work and thereafter at any time stop work unless CLIENT shall have paid said delinquent amounts including interest charges, and any subsequently incurring delinquent amounts, and interest charges. CLIENT understands and agrees that stopping work includes withholding delivery of documents, applications or other work product to CLIENT, any agency, or other person, and CLIENT agrees that the stopping of work by ENGINEERS for nonpayment by CLIENT shall not result in liability on the part of ENGINEERS and CLIENT releases ENGINEERS from any claim for damages or liability by reason of work stoppage.
- Integration and Waiver: ENGINEERS’ waiver of any breach of this Agreement by CLIENT shall not constitute a waiver of any subsequent breach or breach of any other provision of this Agreement. This Agreement constitutes the entire agreement between CLIENT and ENGINEERS, superseding any prior or contemporaneous agreements.
- Assignment: This Agreement shall not be assigned by either party without prior written consent of the other, but ENGINEERS reserves the right to subcontract any and/or all of the work relating to the project to any duly licensed persons, firms or corporations.
- Termination: In the event all or any portion of the work prepared or partially prepared by ENGINEERS be suspended, abandoned, or terminated for any reason, CLIENT shall pay ENGINEERS for all fees, charges and services paid or performed by ENGINEERS prior to such suspension, abandonment or termination.
Each party shall be privileged to terminate this Agreement by giving written notice within one working day of this agreement. In the event of termination by either party, ENGINEERS shall be paid in full for all expenses incurred and for all services performed to the date of termination.