Any Engineering/Consulting Opinions or Offers made via this website, email, or other media are made under the following terms and conditions. Proposals offered via this web portal are made with these terms in mind. R&RE reserves the right to review and negotiate our scope, fee, and schedule if other terms such as, Client-provided Professional Service Agreement, Task Orders, Purchase Orders, Work Orders, or contractor-type service agreements are offered.
1. STANDARD OF CARE: Repair & Restoration Engineering PLLC(R&RE) agrees to perform the services described in this proposal using the degree of care and skill ordinarily exercised by licensed/credentialed members of our profession practicing in the same or similar locality under similar conditions/circumstances. Prior to any direct or third-party claims against R&RE, the Claimant shall first provide written certifications, executed by at least two independent professional engineers practicing in the scope of work performed under this contract, specifying each and every act or violation of the Standard of Care expected by an engineer under similar circumstances. Such certifications shall be provided at least 30 days prior to the presentation of any claim/counterclaim. R&RE is an independent consultant and agrees to provide to the Client, for its sole benefit and exclusive use, consulting services described in our proposal. If services are rendered in absence of a signed proposal/contract, the contract terms and conditions included herein shall apply.
2. TIME OF PERFROMANCE: R&RE shall perform its services as expeditiously as is consistent with the Standard of Care as defined herein.
3. COMPENSATION AND EXPENSES: Lump Sum Fee - The total fee payable shall be the total sum stated herein, and payments shall be made periodically based upon R&RE’s percentage complete of the total fee as of the invoice date, or according to the schedule of payment by design phase if such schedule is expressly included herein. R&RE shall be compensated for all services provided regardless of whether the improvements designed are built, in whole or in part. Sales taxes, if applicable, are not included and shall be paid by the Client. Expenses will be marked-up by 15% on any time and expense contracts. Hourly rate for Time and Expense projects is $200 per hour.
4. INVOICES AND PAYMENTS: R&RE will prepare and present invoices in R&RE's standard format on a monthly basis, unless other arrangements are made in advance. Client may not change invoice format at the time of invoicing, if payment applications or other such invoices are to be required, Client must notify in advance and allow for fee adjustment to accommodate custom invoicing. Notarization fees will be added as expenses to any invoice that is requested to be notarized. Client shall pay R&RE for approved invoices within thirty (30) days after receipt of invoice from R&RE. If the Client fails to make any payment due R&RE for services and expenses within thirty (30) days after receipt of invoice from R&RE; R&RE may charge interest on the amounts due but unpaid at the lesser of the highest legal rate or twelve percent (12%) per annum.
5. COLLECTIONS: Any costs incurred by R&RE in collecting delinquent amounts including, without limitation, reasonable attorney's fees shall be reimbursed by the Client. If any portion of R&RE's invoice is disputed, the undisputed portion shall be paid by the Client by the due date, and Client shall contemporaneously advise R&RE in writing of the basis for any disputed portion of any invoice. R&RE reserves the right to declare a substantial breach of this Agreement upon the Client’s failure to make payment for services performed or Reimbursable Expenses incurred within ninety (90) days after Client’s receipt of invoice from R&RE.
6. RETENTION/RETAINAGE: No deductions, retention, retainer, or other withholding or short payment shall be made from R&RE's compensation on account of penalty, liquidated damages, or on account of the cost of changes in the Work except to the extent such costs are found by a court of competent jurisdiction to be caused by R&RE. R&RE reserves the right to declare a substantial breach of this Agreement upon the Client’s failure to make payment for services performed or Reimbursable Expenses incurred within seven (7) days after Client’s receipt of payment from the Owner of the Project.
7. TERMINATION: The obligation to provide further services under this Agreement may be terminated by either party upon seven days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. If the Client fails to pay R&RE in accordance with this agreement, such failure shall be considered nonperformance and cause for termination. In the event of any termination, R&RE will be paid for all services performed, and expenses incurred through the termination date and termination expenses, if applicable. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibility or liability between Client and R&RE shall survive the completion of the services and the termination of this Agreement. In the event of termination of services, R&RE shall have no liability to the Client for delay or damage caused the Client because of the termination of services and no liability to the Client for services performed but not paid for.
8. INSURANCE: R&RE shall endeavor to maintain professional liability insurance covering claims arising out of the performance of professional services under the Agreement or the Project or caused by negligent errors, omissions or acts for which each may be liable. This insurance, as reflected in the parties’ certificates of insurance, shall be maintained in force for a period of One (1) year after the date of Substantial Completion of the Project, if reasonably available and commercially affordable, or as otherwise agreed to and documented by Client and R&RE. Unless otherwise agreed, R&RE and Client shall each provide insurance to protect themselves from: 1) claims under workers' or workmen's compensation acts; 2) from general liability claims for damages because of bodily injury, including personal injury, sickness, disease, or death of any employees or of any other person and from claims for damages because of destruction of property including loss of valuable papers and records coverage and including loss of use resulting therefrom; and 3) employment practices liability. The insurance coverage required by the above paragraphs shall be in not less than the limits required by law and as otherwise agreed.
9. INDEMNITY: R&RE shall not be responsible or held liable for any acts or omissions of Client, Client’s other consultants, Contractor or any of its subcontractors or suppliers of any tier or any other persons or entity performing any of the Work. R&RE agrees, to the fullest extent permitted by law, to hold harmless and indemnify Client from and against any and all claims, damages, fines, penalties, assessments, requirements or liabilities including, without limitation, claims for injury to persons or property, death, or economic loss, and costs including, without limitation, reasonable attorney's fees and defense and response costs that arise under the performance of the Scope to the extent such damages are caused by the negligence of R&RE. Client agrees, to the fullest extent permitted by law, to hold harmless and indemnify R&RE from and against any and all claims, damages, fines, penalties, assessments, requirements or liabilities including, without limitation, claims for injury to persons or property, death, or economic loss, and costs including, without limitation, reasonable attorney's fees and defense and response costs that arise under the Agreement for Professional Services to the extent such damages are caused by the negligence of the Client. Because repair and/or restoration of an existing building requires that certain assumptions be made regarding existing conditions, and because these assumptions may not be verifiable without expending inordinate amounts of time and money, or damaging otherwise adequate and serviceable portions of the building, Client agrees, to the fullest extent permitted by law to hold harmless and indemnify R&RE from and against any and all claims, damages or liabilities including, without limitation, claims for injury to persons or property, death, or economic loss, and costs including, without limitation, reasonable attorney's fees and defense costs arising out of any designs or deliverables of R&RE based in whole or in part upon any assumptions made by R&RE regarding existing conditions, excepting only those claims, damages, liabilities or costs to extent caused by the negligence or willful misconduct by R&RE.
10. LIMITATION OF LIABILITY: To the maximum extent permitted by law, Client agrees to limit R&RE’s liability for claims arising from the Agreement to the Sum of $50,000 or R&RE’s paid fee, whichever is greater. This limitation shall apply regardless of the cause of action or legal theory pled or asserted.
11. WARRANTY: No other warranty, express or implied, is promised or intended by the proposal for consulting services or by furnishing oral or written reports of the findings. The Client recognizes that subsurface conditions may vary from those encountered at the location where R&RE makes samples, surveys, tests, or explorations and that the data, interpretations, and recommendations of R&RE are based solely upon the data available to R&RE. R&RE will be responsible for those data, interpretations, and recommendations but shall not be responsible for the interpretations by others of the information developed.
12. SITE ACCESS: The Client agrees to arrange for Right-of-Entry to the property for the purpose of performing studies, tests and evaluations in connection with the agreed services.
13. HAZARDS & OBSTRUCTIONS: R&RE’s field personnel are trained to initiate field-testing and/or sampling within a reasonable distance of each designated locations. Our field personnel will avoid hazards or utilities that are visible to them at the site. If we are advised or given data in writing that reveal the presence of potential presence of underground or over ground obstructions, such as utilities, we will give special instructions to our field personnel. R&RE is not responsible for any damage or losses due to undisclosed or unknown surface or subsurface conditions, owned by Client or third parties. Except as a result of our sole negligence, Client agrees to indemnify us from any such claim, suits or losses, including reasonable attorney's fees, resulting there from. It is acknowledged by both parties that R&RE’s scope of services does not include any services related to the presence at the site of asbestos, PCBs, lead, petroleum, hazardous waste, radioactive materials, mold, or air-borne micro toxins. The client acknowledges that R&RE is performing professional services for the Client and R&RE is not and shall not be required to become an “arranger”, “operator”, “generator”, or “transporter” of hazardous substances as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1990 (CERCLA).
14. CONSTRUCTION SITE OBSERVATIONS. During site visits or as a result of site observations of Contractor(s)' work in progress, R&RE will not supervise, direct or have control over Contractor(s)' work nor shall have authority over or responsibility for the means, methods, techniques, sequences or procedures of construction selected by Contractor(s), for safety precautions and programs incident to the work of Contractor(s) or for any failure of Contractor(s) to comply with laws, rules, regulations, ordinances, codes or orders applicable to Contractor(s) furnishing and performing their work. Accordingly, R&RE can neither guarantee the performance of the construction contracts by Contractor(s) nor assume responsibility for Contractor(s)' failure to furnish and perform their work in accordance with their contract.
15. SAMPLE DISPOSAL. We will retain test specimens or samples for a period of 30 days. After that time, samples will be disposed of unless prior arrangements have been made.
16. ENVIRONMENTAL INDEMNITY. If a third party brings suit or claim for damages against R&RE alleging personal injury or property damage from exposure to or release of toxic hazardous substances or constituents at or from the project site before, during or after the services of this Agreement, the Client agrees to the maximum extent permitted by law to defend us and pay on our behalf any judgment against us, including interest thereon, unless such damages are caused by our sole negligence.
17. OWNERSHIP OF DOCUMENTS: Reports, drawings, specifications and other documents prepared by R&RE pursuant to the Agreement are instruments of R&RE's professional services (“Instruments of Service”). R&RE shall be deemed the author of these documents and shall retain all common law, statutory, and other reserved rights, including the copyrights. Provided that Client is not in breach of the Agreement, Client is granted a limited, non-exclusive license to use R&RE’s Instruments of Service for the construction, use, replacement, and maintenance of the Project. The Client shall be permitted to retain copies, including reproducible copies, of the Instruments of Service for the purposes permitted by the non-exclusive license. The Instruments of Service shall not be used on any other project, or for completion of the Project by others, except as permitted by law in the event R&RE has been adjudged in default under the Agreement or except by separate written agreement of the parties with appropriate compensation to R&RE. Third parties such as the Contractor shall be permitted to obtain a copy of the Instruments of Service in electronic format in connection with the construction of the Project by executing R&RE’s standard agreement for such use. The Client or R&RE shall not make changes in each other's Drawings, Specifications and other documents without written permission of the other party.
18. OPINIONS OF COST. Any cost estimates stated in the findings shall not be considered as firm figures unless otherwise specifically stated in this agreement. When included in R&RE’s scope of services, opinions or estimates of probable construction cost are prepared on the basis of R&RE’s experience and qualifications and represent R&RE’s judgment as a professional generally familiar with the industry. However, since R&RE has no control over the cost of labor, materials, equipment or services furnished by others, over contractor’s methods of determining prices, or over competitive bidding or market conditions, R&RE cannot and does not guarantee that proposals, bids, or actual construction cost will not vary from Fee’s opinions or estimates of probable construction cost.
19. SEVERABILITY: If any one or more provisions of the Agreement, any portion thereof, or the application thereof to any person or circumstance, shall for any reason be held invalid, illegal or unenforceable in any respect, any such invalidity, illegality or unenforceability shall be deemed stricken and shall not affect any other provision of the Agreement or the application of such provisions to other persons or circumstances, and the balance of the Agreement shall be enforced to the greatest extent permitted by law. Limitations of liability and remedies and all indemnity obligations shall survive termination of the Agreement for any cause.
20. INTEGRATION: This Agreement, the attached documents and those incorporated herein constitute the entire Agreement between the parties and cannot be changed except by a written instrument signed by both the parties.
21. TESTING, TEST SAMPLES, AND LOCATIONS: Samples of the substrate being inspected and/or associated system(s) may be taken during the work performance. R&RE can provide temporary repairs at a sample and destructive testing location; however, the Client will be responsible for providing permanent repairs to comply with the manufacturer's warranty requirements is in effect. R&RE will in no way be responsible for leaks or any damages caused by our testing and/or sampling methods as requested and agreed to by the client and/or due to the failure of the Client to provide permanent repairs to the sample and test locations following completion of our work. R&RE recommends that the Client hire a contractor approved by the material manufacturer to install and repair guaranteed/warranted systems and to provide permanent repairs to the sample and test locations. Unless otherwise noted, the accuracy of all sample and test locations will be commensurate only with placing and approximate measurements or estimates. The accuracy of our findings will only apply to the areas tested.
22. CONFIDENTIALITY: R&RE shall hold confidential all business or technical information obtained from the Client or its affiliates or generated in the performance of the Scope of Work under this agreement and identified in writing by the Client as "confidential." R&RE shall not disclose such information without the Client's consent except to the extent required for 1) Performance of the services under this agreement; 2) Compliance with professional or ethical standards of conduct for the preservation of public safety, health, and welfare; 3) Compliance with any court order or other governmental directives; and/or 4) Protection of R&RE against claims or liabilities arising from the performance of services under this agreement. R&RE's obligation hereunder shall not apply to information in the public domain or lawfully acquired on a non-confidential basis from others.
23. SAFETY: R&RE has adopted safety policy procedures for its personnel in the performance of our services. R&RE is not responsible or liable for injuries or damage incurred by third parties, not employees of or engaged by R&RE. It is understood that R&RE will not be responsible for the job or site safety of the project. Job and site safety will be the Client's sole responsibility unless contracted to others.
24. SUCCESSORS AND ASSIGNS: Client and R&RE, respectively, bind themselves, their partners, successors, assigns, and legal representatives to the other party to the Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of the Agreement. Neither party to the Agreement shall transfer, sublet or assign any rights under or interest in the Agreement (including, without limitation, monies that are due or monies that may be due) without the prior written consent of the other party. Subcontracting by R&RE shall not be considered an assignment for purposes of the Agreement, and nothing contained in this paragraph shall prevent R&RE from employing such independent professional associates and consultants as R&RE may deem appropriate to assist in the performance of services hereunder. Nothing under the Agreement shall be construed to confer any rights or benefits in the Agreement to anyone other than Client and R&RE, and all duties and responsibilities undertaken pursuant to the Agreement shall be for the sole and exclusive benefit of Client and R&RE and not for the benefit of any other party.
25. FORCE MAJEURE: In the event that R&RE is prevented, directly or indirectly, from completing performance of any of its obligations under the Agreement by adverse weather, war, attack, labor unrest or shortage, civil unrest or other occurrence beyond the control of R&RE, then R&RE shall be excused from any further performance of its obligations under the Agreement. In the event of a force majeure delay which does not result in termination of the Agreement, the Project schedule shall be equitably adjusted before resumption of services.
26. DISPUTE RESOLUTION: If a dispute arises out of or relates to this contract or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try to settle the dispute by mediation administered by the American Arbitration Association under its Construction Industry Mediation Procedures before resorting to arbitration or litigation.
27. GOVERNING LAW: This Agreement shall be governed in all respects by the laws of the Commonwealth of Virginia. When work is performed on a project outside of Virginia, the Agreement shall be governed by the laws of the State, Commonwealth, or District in which the Property is located.
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