TERMS AND CONDITIONS

 

The following Terms and Conditions will govern all services performed on behalf of Client and are hereby incorporated into the Drafting Fee Proposal.

1. Payment.  All fees and other charges will be billed to Client monthly and will be due and payable no later than 30 days after the date of invoice. Client will pay JBB Drafting and Design, LLC (“JBB Drafting + Design”) interest on past due amounts at the rate of 1.5 percent per month or the highest amount permitted by law, whichever is lower. In addition to all other remedies, JBB Drafting + Design may withhold delivery of services, reports, plans, specification, documents, or other deliverables if Client fails to pay an invoice when due. Payment to JBB Drafting + Design will not be withheld, postponed, or made contingent on the construction, completion, or success of the project or upon receipt by the Client of project funds, offsetting reimbursements, or credits from other parties. No withholding, deductions or offsets shall be made from JBB Drafting + Design’s compensation for any reason unless JBB Drafting + Design has been found to be legally liable for such amounts. Payment of JBB Drafting + Design’s fees shall be a condition precedent to bringing any action or suit against JBB Drafting + Design.

2. Contingency Fund.  Client and JBB Drafting + Design agree that changes may be required to the plans and specifications during the various phases of design, development, and construction, and therefore the cost of the project may exceed the estimated construction cost. Client will set aside a reserve in the amount of 10% of the estimated construction cost as a contingency reserve to be used, as required, to pay for any such changes. Client waives any claim against JBB Drafting + Design or JBB Drafting + Design’s subconsultants with respect to any increased costs to the extent of the contingency reserve due to such changes or due to claims made by the construction contractors relating to such changes.

3. Additional Services.  Any services not explicitly described as being performed by JBB Drafting + Design or its subconsultants are excluded. If agreed to in writing by Client and JBB Drafting + Design, JBB Drafting + Design will provide additional services and Client will pay JBB Drafting + Design for such additional services in accordance with JBB Drafting + Design’s current fee schedule or as otherwise agreed by Client and JBB Drafting + Design in writing. These Terms and Conditions will apply to all additional services provided by JBB Drafting + Design. In the case of additional services added to the Drafting Fee Proposal, JBB Drafting + Design’s liability shall be limited to the extent of the additional fee for the specific additional services added.

4. Professional Standards.  Subject to all conditions set forth herein, JBB Drafting + Design will only be liable for breaching its obligation to perform its services to the level of competency maintained by other practicing drafting professionals in the same or similar community performing the same services at the same time as they were performed by JBB Drafting + Design. JBB Drafting + Design makes no warranties, either express or implied. JBB Drafting + Design does not guarantee the completion or quality of performance of contracts by the construction contractor or subcontractors, or other third parties, nor accepts responsibility for their acts, omissions, or any safety precautions.

5. Independent Contractor.  The relationship of JBB Drafting + Design to Client shall at all times be that of an independent contractor. JBB Drafting + Design shall not be liable for the acts of Client or its agents in performing work.

6. Document Ownership.  JBB Drafting + Design holds copyright for all tracings, calculations, and other original documents produced by JBB Drafting + Design, and such documents shall be the property of JBB Drafting + Design, except when otherwise provided by law, governmental requirement, or by prior agreement. A limited license is granted to use the documents for the specific purposes and project covered by the Agreement. Reproduction of these documents either in hard copy or soft copy (including posting on the web) is prohibited without copyright permission. No right to create modifications or derivatives of JBB Drafting + Design documents is granted pursuant to this limited license. You may not remove any copyright or other proprietary notices contained in the documents and information. Any product, process, or technology described in the documents may be the subject of other Intellectual Property rights reserved by JBB Drafting + Design. The drawings, specifications, and reproductions thereof are instruments of service to be used only for the specific project covered by the Agreement between Client and JBB Drafting + Design. JBB Drafting + Design assumes no liability for misinterpretation, modification, or misuse by others of any instruments of service prepared by JBB Drafting + Design in accordance with its services.

7. Electronic Documents.  If JBB Drafting + Design provides Client any design documents, including but not limited to plans and specifications, in electronic form (“Electronic Documents”), acceptance and use of the Electronic Documents by Client shall be at Client’s sole risk and Client will:  (a) Waive and covenant not to sue JBB Drafting + Design alleging any inaccuracy or defect in the Electronic Documents; (b) Agree that JBB Drafting + Design makes no representation with regard to the compatibility of the Electronic Documents with Client’s software or hardware; and (c) to the fullest extent permitted by law, indemnify, hold harmless, reimburse and defend JBB Drafting + Design from, for and against any alleged claim, damage, liability, or cost, including but not limited to attorneys’ fees, that bay arise form Client’s use of the Electronic Documents or any subsequent modification of the Electronic Documents by any person or entity.

8. Schedule.  JBB Drafting + Design will perform its services with reasonable diligence consistent with sound professional practice as ordinarily provided by drafting firms practicing in the same or similar locality under the same or similar circumstances. Client will require its other consultants and contractors to incorporate into their schedules reasonable periods of time for JBB Drafting + Design to perform its services and will require that they coordinate their services with JBB Drafting + Design’s services. Client is aware that many factors outside JBB Drafting + Design’s control may affect JBB Drafting + Design’s ability to timely perform and complete its services and Client agrees that JBB Drafting + Design is not responsible for damages arising directly or indirectly from any delays, including but not limited to liquidated damages.

9. Cost Estimates.  Any cost estimates provided by JBB Drafting + Design will be based on JBB Drafting + Design’s professional experience and judgment. However, Client agrees that JBB Drafting + Design has no control over market conditions or bidding procedures and, as a result, JBB Drafting + Design does not warrant that bids or construction costs will not vary from JBB Drafting + Design’s cost estimates.

10. Construction Support.  If specifically included in the scope of JBB Drafting + Design’s services, construction support services will be performed solely for the purpose of reviewing portions of the work for general conformance with the design concept set forth in the contract plans and specifications. These services are different from inspection or other quality-control services. Client shall coordinate the contractor’s involvement in any JBB Drafting + Design construction support services and shall provide JBB Drafting + Design all necessary contracts and documents to perform the same. JBB Drafting + Design will not provide any administration of the contract between the contractor and Client. JBB Drafting + Design is not a contractor and does not provide the services of a contractor under any circumstances. JBB Drafting + Design will not supervise, direct or have control over any contractor’s work, nor will JBB Drafting + Design have any responsibility for the means, methods, techniques, sequences, or procedures of construction selected by the contractor, nor will JBB Drafting + Design be responsible for the contractor’s safety precautions and programs in connection with the work, nor will JBB Drafting + Design be responsible for the contractor’s failure to perform the work in accordance with the requirements of the contract documents or applicable building or structural codes, nor will JBB Drafting + Design be responsible for the acts or omissions of the contractor or of any other persons or entities performing portions of the work, all of which are the sole responsibility of the contractor or its agents.

11. Submittal Review.  JBB Drafting + Design will review and render appropriate services on shop drawings, product data, samples, and other submittals required by the contract documents. Such review shall be solely for general conformance with the design concept and the information shown on the contract documents. JBB Drafting + Design’s review will not include review of the accuracy or completeness of details, such as quantities, dimensions, weights or gauges, fabrication processes, construction means or methods, compliance with applicable building or structural codes, or coordination of the work of other trades or construction safety precautions, all of which are the sole responsibility of the contractor. JBB Drafting + Design’s review will be conducted with reasonable promptness while allowing sufficient time in JBB Drafting + Design’s judgment to permit adequate review. Review of a specific item shall not indicate acceptance of an assembly of which the item is a part. JBB Drafting + Design will not review and will not be responsible for any deviations from the contract documents not clearly identified in writing on the submittal by the contractor, nor will JBB Drafting + Design be required to review partial submissions or those for which submissions for correlated items have not been received.

12. Property Release.  Client hereby irrevocably grants to JBB Drafting + Design, its employees, agents, licensees, independent contractors and assigns, permission to use, reuse, display, broadcast, perform, reproduce, distribute, transmit, reprint and commercialize, in any manner or media now known or later developed, photographs or artwork depicting property for which JBB Drafting + Design performs services (“Content”) for any purpose (excluding defamation) which may include, among others, advertising, promotion, marketing and packaging for JBB Drafting + Design’s products or services. Client agrees that the Content may be combined with other content, text, and graphics, and may be cropped, altered, or modified.

13. Copyright License.  Client hereby irrevocably grants to JBB Drafting + Design, its employees, agents, licensees, independent contractors and assigns the perpetual, assignable, royalty-free, worldwide right and license to use any Content, in whole or in part, including the rights to reproduce, sublicense, transfer, publish, distribute, publicly display, broadcast, download, transmit, modify and prepare derivative works, in any manner or media now known or later developed, for the marketing and sale of JBB Drafting + Design products or services and for any other business purpose or activity relating to JBB Drafting + Design. Client waives any right to inspect or approve JBB Drafting + Design’s use of the Content, including written copy that may be created in connection therewith.

14. Termination for Convenience.  Either JBB Drafting + Design or Client may terminate this Agreement at any time with or without cause upon giving the other party ten (10) calendar days’ prior written notice. Client will pay JBB Drafting + Design for all services rendered and all costs incurred up to the date of termination, along with all other reasonable termination costs, including but not limited to expenses directly attributable to termination for which JBB Drafting + Design is not otherwise compensated, plus an amount for JBB Drafting + Design’s anticipated profit on the value of the services not performed by JBB Drafting + Design. If no notice of termination is given, JBB Drafting + Design’s obligations created by this Agreement will be terminated upon completion of the services.

15. Notice of Deficiencies.  Client shall provide prompt written notice within thirty (30) days of when Client becomes aware or should have reasonably been aware of any fault or defect in the project, including errors, omissions, or inconsistencies in the services and work product provided by JBB Drafting + Design.

16. Additional Insured.  For both “Ongoing Operations” coverage and “Products/Completed Operation” coverage for up to a period of ten (10) years after project completion, Client will cause all of its general liability and excess insurers to name JBB Drafting + Design as an additional insured, and Client will require its consultants, contractors, and subcontractors performing services or work to name JBB Drafting + Design as an additional insured on their general liability and umbrella/excess insurance policies, and provide evidence of compliance in the form of a certificate, endorsement, or other means upon request.

17. Waiver of Subrogation.  Client and JBB Drafting + Design waive all rights against each other for damages or loss to the extent covered by any available insurance. Client will require all of Client’s insurers to waive subrogation against JBB Drafting + Design, and Client will contractually require all of its contractors, consultants, and agents of any tier to have their respective insurers waive subrogation against JBB Drafting + Design.

18. Indemnity.  Subject to all provisions of this Agreement and to the fullest extent permitted by law, Client shall indemnify, hold harmless, reimburse, and defend (with counsel of JBB Drafting + Design’s choice) JBB Drafting + Design, its employees, officers, directors and agents from, for, and against all actual or alleged claims, losses, damages, costs, and expenses arising from or related to the work, the Project, or this Agreement (with the sole exception that Client will have no duty to indemnify JBB Drafting + Design from claims or losses to the extent those claims or losses are caused by the fault or negligence of JBB Drafting + Design or its employees as adjudicated by a court of competent jurisdiction). Under no circumstances shall JBB Drafting + Design be liable for any actual or alleged claims, losses, damages, costs, and expenses arising from or related to the work, fault, or negligence of it subconsultants.

19. Modifications.  No change, modification, or amendment to this Agreement will be valid unless agreed to by both of the parties hereto in writing.

20. Successors and Assigns.  This Agreement shall inure to the benefit of and shall be binding upon each of the parties hereto and such parties’ partners, successors, executors, administrators, and assigns.

21. Severability.  In the event any clause or portion thereof in this Agreement is deemed invalid or unenforceable by a court or arbitrator of competent jurisdiction, then that clause of portion thereof will be treated as if it were omitted at the time of execution, and the remaining terms of this Agreement shall survive and be enforceable.

22. Arbitration.  Client agrees that any claim, damage, or dispute arising out of these Terms and Conditions or any services performed by JBB Drafting + Design will be resolved by binding and confidential arbitration before a single arbitrator in the place where the project is located. The parties shall mutually select the arbitrator and the rules applicable to the arbitration process. Unless the parties mutually agree otherwise, the arbitration shall be administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the date of this Agreement. As a condition precedent to serving a demand for arbitration, Client agrees that it will obtain a written certificate executed by an independent design professional with similar experience on similar projects and licensed in the jurisdiction in which the project is located certifying that JBB Drafting + Design failed to meet the applicable standard of care. Client will provide JBB Drafting + Design with a copy of the certificate and all written analysis supporting the certificate’s findings at least 30 days before serving a demand for arbitration. Client and JBB Drafting + Design agree that any party hereto shall commence all claims and causes of action within the period specified by applicable law but in any case, not more than ten (10) years after the date of substantial completion of the project. Client and JBB Drafting + Design waive all claims and causes of action not commenced or noticed in accordance with the time periods in this section.

23. Governing Law.  The laws of the State of California will govern the validity of this Agreement, its interpretation, and performance. Any dispute arising in any way from this Agreement shall be subject to the jurisdiction of the courts of Placer County, California.

24. Client’s Terms.  Any terms and conditions set forth or referenced in Client’s purchase order, requisition, or other notice of authorization to proceed are inapplicable to the services provided under this proposal or any related agreement, except when specifically accepted or confirmed in writing and signed by JBB Drafting + Design.

25. No Third-Party Beneficiaries.  JBB Drafting + Design’s responsibilities under this Agreement run only to Client. JBB Drafting + Design’s responsibilities do not extend to any third party including, without limitation, the successors and assigns of Client, any Client’s association, or any individual unit owner associated with Client. To the fullest extent permitted by law, no party has any third-party beneficiary or other rights arising form or related to the services provided by JBB Drafting + Design.

26. Limitation of Liability.  Client agrees that, in recognition of the relative risks and benefits of the project, JBB Drafting + Design’s aggregate joint, several, and individual liability, whether for breach of contract, breach of warranty, negligence, professional malpractice, strict liability, or otherwise will be limited to an amount no greater than $1 million or JBB Drafting + Design’s fee, whichever amount is lesser. This provision will survive the termination or expiration of this Agreement.

27. Limitation of Remedy.  Client covenants that it will not, under any circumstances, bring a lawsuit, arbitration demand, or claim of any kind against JBB Drafting + Design’s individual employees, officers, directors, or agents, and that Client’s sole remedy will be against JBB Drafting + Design, LLC.

28. Waiver of Consequential Damages.  Neither JBB Drafting + Design nor any of its officers, directors, employees, or agents will be liable for any indirect, punitive, consequential, liquidated, or exemplary damages of any nature, including but not limited to fines, penalties, or lost profits, whether said claim is based upon contract, warranty, tort (including negligence and strict liability), indemnity, or any other theory of law, and the Client expressly waives all rights and remedies with respect to the same.

29. Entire Agreement.  This Agreement contains all terms and conditions agreed on by the parties hereto, and no other agreements, oral or otherwise, regarding the subject matter of this Agreement, shall be deemed to exist, or bind any of the parties hereto.