Standard Terms and Conditions
The following provisions, terms and conditions shall apply hereto:
Agreement: This form; the Standard Form of Agreement between Client and Arch Engineers, including any and all Schedules annexed hereto and Contract Documents, referenced therein.
Additional Services: Services required of Arch Engineers, which are outside the scope of Services defined in this Agreement and for which Arch Engineers will be additionally compensated by the Client.
Consultant: Registered professional engineers, architects and other technical specialists, other than Arch Engineers, engaged by the Client directly.
Contractor: The Client, or another party contracting with the Owner for the provision of labour, materials and equipment for the execution of the Work.
Project Contract: The agreement between the Owner and the Contractor for the provision of labour, materials and equipment for the execution of the Work by the Contractor.
Engineering Documents: All documents relating to the Work issued by or through Arch Engineers which are incorporated into the Project Contract, and all variations and modifications thereto issued by or approved by Arch Engineers.
Project Contract Time: The period from the notice to proceed with the Work to the projected completion date for the Project Contract as agreed to between the Owner and the Contractor in the Project Contract.
Owner: Where different from the Client, Owner shall mean the party contracting with the Contractor for the execution of the Work.
Project: The Project described in the recitals to the Agreement.
Services: Arch Engineers’s Services as described and defined in this Agreement and the attached schedules.
Subconsultant: Any registered/licensed professional engineer, architect or other technical specialist engaged directly by Arch Engineers in connection with the Project.
Termination Expenses or Suspension Expenses: Expenses incurred by Arch Engineers which are directly attributable to termination or suspension of the Services by the Client for reasons other than default of Arch Engineers, and shall include Arch Engineers’s expenses reasonably and necessarily incurred in winding down Arch Engineers’s Services.
Value Added Taxes: Value Added Taxes means such sums as levied upon the Fees by a Federal, Provincial or Territorial Government and includes the Goods and Services Tax, the Harmonized Sales Tax, the Quebec Sales Tax, the Saskatchewan Sales Tax and any similar tax, the payment or collection of which is imposed by legislation.
Work: The totality of all labour, materials and equipment used or incorporated into the Project by the Contractor.
Project Data, Client’s Requirements and defining the Work
Arch Engineers shall carefully examine and analyse all information made available by the Client and will give prompt notice to the Client upon Arch Engineers becoming aware of any errors, inconsistencies omissions or other apparent deficiencies in the information and data and request clarification from the Client, proposing resolutions where appropriate, before proceeding with any Services dependent on the accuracy of such information and/or data.
Subject to Arch Engineers complying with paragraph 2.2 and Section 10; Arch Engineers shall be entitled to rely upon the accuracy and completeness of all information and data furnished by the Client, including information and data originating with the Client’s Consultants, whether such Consultants are engaged at the request of Arch Engineers or otherwise. Where such information or data originates either with the Client or with the Client’s Consultants, then Arch Engineers shall not be responsible to the Client for any consequences of any error or omission contained therein.
The Client shall arrange and make provision for Arch Engineers’ entry and ready access to public and/or private property as well as to the Project site, as necessary to enable Arch Engineers to perform the Services of this Agreement.
The Client shall designate in writing an individual to act as the Client’s representative, such person to have complete and exclusive authority to transmit instructions to and receive information from Arch Engineers.
The Client shall give due consideration to all sketches, drawings, reports, bids, proposals and other information provided to the Client by Arch Engineers and shall render decisions in a timely manner so as not to delay the work of Arch Engineers.
The Client shall give prompt written notice to Arch Engineers whenever the Client or the Client’s representative becomes aware of any defects or deficiencies in the Work or in the Engineering Documents.
Arch Engineers shall give prompt written notice to the Client upon Arch Engineers becoming aware of any defect, error or omission in the Services.
If the Client shall, or must ensure the Owner shall, obtain required approvals, licences and permits from municipal, governmental or other authorities having jurisdiction over the Project so as to not delay Arch Engineers in the performance of the Services being rendered under this Agreement.
The Client shall expressly undertake not to enter into contracts in connection with the Project with Contractors or Consultants (or with the Owner, when the Client is not the Owner) which describe duties and responsibilities of Arch Engineers which are inconsistent with the duties and responsibilities of Arch Engineers provided for in this Agreement, without first obtaining Arch Engineers’ written agreement thereto, and amending this Agreement accordingly.
The Services shall be performed in compliance with all applicable Laws, Standards and Codes. and will comply with the requirements of the Agreement.
Arch Engineers will (i) inform itself of the requirements of the Client regarding the Services and the Project by making inquiries, including consulting the Client as required throughout the performance of the Services; (ii) provide regular progress reports to the Client, in such form and with such frequency as may be reasonably requested by the Client.
Payment of Engineer’s Fee
Accounts unpaid by the Client when due are subject to monthly interest charges at the rate of 12.0% per annum. No deduction, holdback or set-off shall be made by the Client from the fee payable to Arch Engineers.
Standard of Care
Arch Engineers shall, at its own expense insure its operations under a policy of Comprehensive or Commercial General Liability, with an insurer licensed in the Province or Territory where the Project is located, in an amount not less than $2,000,000.00 per occurrence, insuring against bodily injury, personal injury, and property damage including loss of use thereof. Such insurance shall include blanket contractual liability.
Arch Engineers shall provide and maintain, at its own expense, Professional Liability Insurance in an amount not less than $[TBD] per claim and in the aggregate.
Prior to the date of the execution of this Agreement, if the Client wishes to increase the amount of any coverage, or to obtain other special insurance coverage for this Project, then Arch Engineers shall cooperate with the Client to obtain such increased or special insurance coverage at the Client’s expense.
Limitations on Liability of Engineer
Arch Engineers will re-perform at Arch Engineers’ own cost those Services which constitute errors, omissions or negligent acts on the part of Arch Engineers or anyone for whom Arch Engineers may be responsible at law.
In consideration of the provision of the Services rendered by Arch Engineers to the Client under this Agreement, the Client agrees that any and all claims which the Client has or hereafter may have against Arch Engineers, Arch Engineers’ servants, employees, subconsultants or representatives, in respect of the Services, howsoever arising, whether in contract or in tort, shall be absolutely limited to a fixed monetary cap calculated by reference to the total amount of Arch Engineers’ fees paid by the Client to Arch Engineers under the terms of this Agreement as follows:
Fees under $20,000 a maximum liability of $200,000.
Fees between $20,001 – $50,000 a maximum liability of $500,000.
Fees exceeding $50,001 a maximum liability of $1,000,000
Arch Engineers’ liability with respect to any claims arising out of this Agreement shall be absolutely limited to direct damages arising out of the Services, and Arch Engineers shall bear no liability whatsoever for any consequential loss, injury or damages incurred by the Client, including but not limited to loss of profit, revenue, production, business, contracts or opportunity and increased cost of capital, financing or overhead.
It is further agreed that Arch Engineers shall not be liable for damages, interest, costs or any other expense arising out of the failure of any manufactured product or any manufactured or factory assembled system or components to perform in accordance with the manufacturer’s specifications, advertising, product literature or written documentation on which Arch Engineers reasonably relied during the preparation of the design or the Engineering Documents.
In those instances where Arch Engineers makes reasonable use of third party software and other intellectual property in the course of providing the Services, the limitation of liability that exists between the third party provider and Arch Engineers shall, with the necessary changes, apply equally between Arch Engineers and the Client.
For the purposes of the limitation provisions contained in the Agreement of the Parties herein, the Client expressly agrees that it has entered into this Agreement with Arch Engineers, both on its own behalf and as an agent on behalf of its employees and principals. The Client expressly agrees that Arch Engineers’ employees and principals shall have no personal liability to the Client in respect of a claim, whether in contract, tort and/or any other cause of action in law. Accordingly, the Client expressly agrees that it will bring no proceedings and take no action in any court of law against any of Arch Engineers’ employees or principals in their personal capacity.
Where the Client is any form of municipal, local, provincial or federal government or agency, the Client expressly agrees that if the services provided by Arch Engineers or its principals, employees and subconsultants are the type that if provided by the officers or employees of the Client would bring into play statutory indemnification protection for the benefit of the Client or its officers and employees, the Client will indemnify Arch Engineers and its principals and employees to the same extent and under the same circumstances as the statutory indemnification would extend to the Client and its officers and employees. Examples of the services that are to be covered by this provision include but are not limited to the following:
review of rezoning applications;
review of land use plans;
review of subdivision submissions;
review of building permit applications;
review for building code compliance;
review of stormwater management, flood routing, or drainage plans; and
review of environment management plans.
Occupational Health and Safety Act
It is agreed that Arch Engineers shall not be responsible for any Contractor’s means, methods, techniques, sequences, procedures or the safety and coordination of the Work. The Contractor shall be solely responsible for ensuring that any and all Occupational Health and Safety Acts and regulations are complied with. In particular, Arch Engineers shall not be required to accept the role or obligations of Prime Contractor with respect to such Acts.
Termination or Suspension by the Client
The Client will not be required to make any further payments to Arch Engineers on account of the Fee until the Services are completed. Upon completion of the services the Client and Engineer will make such settlement for the cost of the Services rendered and disbursements incurred by Arch Engineers pursuant to this Agreement and remaining unpaid, taking into account the cost (if any) to the Client to complete the Services.
The Client may suspend or terminate this Agreement without cause by giving 30 days written notice to Arch Engineers. Upon receipt of such written notice, Arch Engineers shall perform no further Services other than those reasonably necessary to suspend or close out the Project. In such event, Arch Engineers shall be paid by the Client for all Services performed and for all disbursements incurred pursuant to this Agreement, plus expenses incurred by Arch Engineers which are directly attributable to termination or suspension, including expenses reasonably and necessarily incurred in winding down Arch Engineers’ Services under this Agreement as authorized by the Client.
Termination by Arch Engineers
If a claim, dispute or controversy cannot be resolved by the project personnel, senior executives of the Client and Engineer, upon the request of either party, shall meet as soon as conveniently possible, but in no case later than thirty (30) days after such a request is made, to attempt to resolve such claim, dispute or controversy. If after meeting the senior executives determine that the claim, dispute or controversy cannot be resolved on terms satisfactory to both parties, either party may commence legal proceedings to resolve the claim, dispute or controversy.
All notices required by this Agreement to be given by either Party shall be deemed to be properly given and received within three business days if made in writing to either Party by certified mail, facsimile or personal delivery, addressed to the regular business address of such other Party. Notices sent by email shall not be deemed properly given and received unless proof of receipt can be furnished by the sender.
Successors and Assignment
If a Party to this Agreement who is an individual should desire to bring in a partner or partners, or if a Party which is a partnership should desire to bring in a new partner or partners to share the benefit and burden of this Agreement, he or they may do so provided the additional parties covenant directly in writing with the other parties to be bound by the provisions of this Agreement.
Except as aforesaid, neither Party may assign this Agreement without the consent in writing of the other.