Legacy Engineering, Inc.

STANDARD TERMS AND CONDITIONS

SECTION 1: BILLING NOTES

1.1    All hourly rates (for engineering and inspection) are portal-to-portal with a minimum of two (2) hours time for each specific testing type except for fire penetration & joint inspections and threshold inspections which are a minimum of three (3) hours time. Overtime applies to all services performed before 7 A.M. and after 5 P.M. Monday through Friday, weekends and recognized Holidays. Any services provided between the hours of 6 P.M. and 6 A.M., including weekends and recognized Holidays will be charged a minimum of four (4) hours time. Unit rates listed are for local projects only, mobilization and/or per diem charges will be assessed for out of town projects. A minimum charge of $50.00 will be assessed for all scheduled projects, which are cancelled while enroute or after our arrival at the project site. A minimum charge of $50.00 will be assessed for all testing/inspection reports. All standby time, waiting time and/or technician time will be assessed in 0.25-hour increments. An access fee of $25.00 will be charged for access into any gated or secured facility requiring credentials or special badging, including military bases, ports and/or airfields. For lump sum proposals, where the project length exceeds the original project schedule, Legacy reserves the charge based on either an hourly basis or the lump sum amount converted to a weekly sum.

SECTION 2: RESPONSIBILITIES

2.1    Legacy Engineering, Inc., (“Legacy”), has the responsibility for providing the services described under the Scope of Services section. The work is to be performed according to accepted standards of care and is to be completed in a timely manner. The term "Legacy" as used herein includes all of Legacy Engineering, Inc's agents, employees, professional staff, and subcontractors.

2.2    The Client or a duly authorized representative is responsible for providing Legacy with a clear understanding of the project nature and scope. The Client shall supply Legacy with sufficient and adequate information, including, but not limited to, maps, site plans, reports, surveys and designs, to allow Legacy to properly complete the specified services. The Client shall also communicate changes in the nature and scope of the project as soon as possible during performance of the work so that the changes can be incorporated into the work product.

2.3    The Client acknowledges that Legacy’s responsibilities in providing the services described under the Scope of Services section is limited to those services described therein, and the Client hereby assumes any collateral or affiliated duties necessitated by or for those services. Such duties may include, but are not limited to, reporting requirements imposed by any third party such as federal, state, or local entities, the provision of any required notices to any third party, or the securing of necessary permits or permissions from any third parties required for Legacy’s provision of the services so described, unless otherwise agreed upon by both parties.

2.4    Legacy will not be responsible for scheduling our services and will not be responsible for tests or inspections that are not performed due to a failure to schedule our services on the project or any resulting damages.

2.5             Client acknowledges its responsibility to accurately represent its progress on the project for which it has engaged Legacy as well as the location of the project. Legacy shall not be responsible for any fraudulent or negligent representations of Client as to project progress or location, and Client agrees to hold Legacy harmless and indemnify Legacy for any and all fees and costs incurred as a result of fraudulent or negligent misrepresentation by Client.

2.6       PURSUANT TO FLORIDA STATUTES §558.0035, ANY INDIVIDUAL EMPLOYEE OR AGENT OF LEGACY MAY NOT BE HELD INDIVIDUALLY LIABLE FOR NEGLIGENCE.

SECTION 3: STANDARD OF CARE

3.1    Services performed by Legacy under this Agreement will be conducted in a manner consistent with the level of care and skill ordinarily exercised by members of Legacy's profession practicing contemporaneously under similar conditions in the locality of the project. No other warranty, express or implied, is made.

3.2    The Client recognizes that subsurface conditions may vary from those observed at locations where borings, surveys, or other explorations are made, and that site conditions may change with time. Data, interpretations, and recommendations by Legacy will be based solely on information available to Legacy at the time of service. Legacy is responsible for those data, interpretations, and recommendations, but will not be responsible for other parties’ interpretations or use of the information developed.

3.3    Execution of this document by Legacy is not a representation that Legacy has visited the site, become generally familiar with local conditions under which the services are to be performed, or correlated personal observations with the requirements of the Scope of Services. It is the Client’s responsibility to provide Legacy with all information necessary for Legacy to provide the services described under the Scope of Services, and the Client assumes all liability for information not provided to Legacy that may affect the quality or sufficiency of the services so described.

3.4    Should Legacy be retained to provide threshold inspection services under Florida Statutes §553.79, Client acknowledges that Legacy’s services thereunder do not constitute a guarantee that the construction in question has been properly designed or constructed, and Legacy’s services do not replace any of the obligations or liabilities associated with any architect, contractor, or structural engineer. Therefore it is explicitly agreed that the Client will not hold Legacy responsible for the proper performance of service by any architect, contractor, structural engineer or any other entity associated with the project.

3.5 Client acknowledges that as an independent, third-party service provider, Legacy must maintain certain statutory, regulatory, and professional standards that may cause disputes to arise between Client and Legacy as to whether Client’s work complies with applicable codes, statutes, and building standards. Client agrees to hold Legacy harmless for any such disputes that may arise and any and all damages or claims that may arise as a result of such dispute.

SECTION 4: SITE ACCESS AND SITE CONDITIONS

4.1   Client will grant or obtain free access to the site for all equipment and personnel necessary for Legacy to perform the work set forth in this Agreement whether such work is to be performed in-person or virtually. Such free access shall include such follow-up inspections as Legacy may deem necessary to ensure quality control and compliance with appropriate codes and/or statutes. The Client will notify any and all possessors of the project site that Client has granted Legacy free access to the site. Legacy will take reasonable precautions to minimize damage to the site, but it is understood by Client that, in the normal course of work, some damage may occur, and the correction of such damage is not part of this Agreement unless so specified in the Proposal. Client is responsible for the identification of any sub-surface objects prior to any work.

4.2    The Client is responsible for the accuracy of locations for all subterranean structures and utilities. Legacy will take reasonable precautions to avoid known subterranean structures, and the Client waives any claim against Legacy, and agrees to defend, indemnify, and hold Legacy harmless from any claim or liability for injury or loss, including costs of defense, arising from damage done to subterranean structures and utilities not identified or accurately located. In addition, Client agrees to compensate Legacy for any time spent or expenses incurred by Legacy in defense of any such claim with compensation to be based upon Legacy's prevailing fee schedule and expense reimbursement policy. 

SECTION 5: SAMPLE OWNERSHIP AND DISPOSAL

5.1    Soil or water samples obtained from the project during performance of the work shall remain the property of the Client.

5.2    Legacy will dispose of or return to Client all remaining Geotechnical soil and rock samples 60 days after submission of report covering those samples. Further storage or transfer of samples can be made at Client's expense upon Client's prior written request.

5.3    Samples which are contaminated by petroleum products or other chemical waste will be returned to Client for treatment or disposal, consistent with all appropriate federal, state, or local regulations.

SECTION 6: BILLING AND PAYMENT

6.1    Legacy will submit invoices to Client monthly or upon completion of services. Invoices will show charges for different personnel and expense classifications.

6.2    Payment is due upon receipt and is past due 31 days from invoice date. Client agrees to pay a finance charge of one and one-half percent (1 ½ %) per month, or the maximum rate allowed by law, on past due accounts.

6.3    If Legacy incurs any expenses to collect overdue billings on invoices, the sums paid by Legacy for reasonable attorneys' fees, court costs, Legacy's time, Legacy's expenses, and interest will be due and owing by the Client.

6.4             In the event of non-payment by Client, Legacy shall have the right to withhold the issuance of a certificate of compliance unless and until all past-due invoices have been paid. Additionally, Client agrees to hold Legacy harmless and indemnify Legacy for any and all fees and costs incurred as a result of litigation related to Legacy’s withholding of a certificate of compliance for non-payment.

SECTION 7: OWNERSHIP AND USE OF DOCUMENTS

7.1    All reports, boring logs, field data, field notes, laboratory test data, calculations, estimates, visual data (whether confidential or otherwise), and other documents prepared by Legacy, as instruments of service, shall remain the property of Legacy.

7.2    Client agrees that all reports and other work furnished to the Client or his agents, which are not paid for, will be returned upon demand and will not be used by the Client for any purpose.

7.3    Legacy will retain all pertinent records relating to the services performed for a period of five years following submission of the report, during which period the records will be made available to the Client at all reasonable times.

7.4    All reports, boring logs, field data, field notes, laboratory test data, calculations, estimates, visual data (whether confidential or otherwise), and other documents prepared by Legacy, are prepared for the sole and exclusive use of Client, and may not be given to any other party or used or relied upon by any such party without the express written consent of Legacy.

SECTION 8: DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS

8.1    Client warrants that a reasonable effort has been made to inform Legacy of known or suspected hazardous materials on or near the project site.

8.2    Under this agreement, the term hazardous materials include hazardous materials (40 CFR 172.01), hazardous wastes (40 CFR 261.2), hazardous substances (40 CFR 300.6), petroleum products, polychlorinated biphenyls, and asbestos.

8.3    Hazardous materials may exist at a site where there is no reason to believe they could or should be present. Legacy and Client agree that the discovery of unanticipated hazardous materials constitutes a changed condition mandating a renegotiation of the scope of work. Legacy and Client also agree that the discovery of unanticipated hazardous materials may make it necessary for Legacy to take immediate measures to protect health and safety. Client agrees to compensate Legacy for any equipment decontamination or other costs incident to the discovery of unanticipated hazardous waste.

8.4    Legacy agrees to notify Client when unanticipated hazardous materials or suspected hazardous materials are encountered. Client agrees to make any disclosures required by law to the appropriate governing agencies. Client also agrees to hold Legacy harmless for any and all consequences of disclosures made by Legacy which are required by governing law. In the event the project site is not owned by Client, Client recognizes that it is the Client's responsibility to inform the property owner of the discovery of unanticipated hazardous materials or suspected hazardous materials.

8.5    Notwithstanding any other provision of the Agreement, Client waives any claim against Legacy, and to the maximum extent permitted by law, agrees to defend, indemnify, and save Legacy harmless from any claim, liability, and/or defense costs for injury or loss arising from Legacy's discovery of unanticipated hazardous materials or suspected hazardous materials including any costs created by delay of the project and any cost associated with possible reduction of the property's value. Client will be responsible for ultimate disposal of any samples secured by Legacy which are found to be contaminated.

SECTION 9: RISK ALLOCATION

9.1    Client agrees that Legacy's liability for any damage on account of any breach of contract, error, omission, or other professional negligence will be limited to a sum not to exceed Legacy’s fee for the site where the alleged breach of contract, error, omission, or other professional negligence took place. If Client prefers to have higher limits on contractual or professional liability, Legacy agrees to increase the limits up to a maximum of $1,000,000.00 upon Client’s written request at the time of accepting our proposal provided Client agrees to pay an additional consideration of four percent of the total fee, or $400.00, whichever is greater. Client acknowledges the additional charge for the higher liability limits is because of the greater risk assumed and is not strictly a charge for additional professional liability insurance.

SECTION 10: INSURANCE

10.1  Legacy 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 Legacy has such coverage under public liability and property damage insurance policies which Legacy deems to be adequate. Certificates for all such policies of insurance shall be provided to Client upon request in writing. Within the limits and conditions of such insurance, Legacy agrees to indemnify and save Client harmless from and against loss, damage, or liability arising from negligent acts by Legacy, its agents, staff, and consultants employed by it. Legacy shall not be responsible for any loss, damage or liability beyond the amounts, limits, and conditions of such insurance or the limits described in Section 9, whichever is less. The Client agrees to defend, indemnify and save Legacy harmless for loss, damage or liability arising from acts by Client, Client's agent, staff, and other Legacy’s employed by Client.

SECTION 11: DISPUTE RESOLUTION

11.1 All claims, disputes, and other matters in controversy between Legacy and Client arising out of or in any way related to this Agreement will be submitted to mediation, before and as a condition precedent to, other remedies provided by law, including the commencement of litigation. 

11.2 If a dispute arises related to the services provided under this Agreement and that dispute requires litigation instead of mediation as provided above, then: 

(a) the claim will be brought and tried in judicial jurisdiction of the court of the county where Legacy's principal place of business is located, and Client waives the right to remove the action to any other county or judicial jurisdiction, and 

(b) the prevailing party will be entitled to recovery of all reasonable costs incurred, including staff time, court costs, attorneys’ fees, and other claim related expenses. 

SECTION 12: TERMINATION

12.1  This agreement may be terminated by either party upon seven (7) days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof. Such termination shall not be effective if that substantial failure has been remedied before expiration of the period specified in the written notice. In the event of termination, Legacy shall be paid for services performed to the termination notice date plus reasonable termination expenses.

12.2  In the event of termination, or suspension for more than three (3) months, prior to completion of all reports contemplated by the Agreement, Legacy may complete such analyses and records as are necessary to complete its files and may also complete a report on the services performed to the date of notice of termination or suspension. The expense of termination or suspension shall include all direct costs of Legacy in completing such analyses, records and reports.

SECTION 13: ASSIGNS

13.1  Neither the Client nor Legacy may delegate, assign, sublet or transfer their duties or interest in this Agreement without the written consent of the other party.

SECTION 14. GOVERNING LAW AND SURVIVAL

14.1  The laws of the State of Florida will govern the validity of these Terms, their interpretation and performance.

14.2  If any of the provisions contained in this Agreement are held illegal, invalid, or unenforceable, the enforceability of the remaining provisions will not be impaired. Limitations of liability and indemnities will survive termination of this Agreement for any cause. 

SECTION 15. INTEGRATION CLAUSE

15.1 This Agreement represents and contains the entire and only agreement and understanding among the parties with respect to the subject matter of this Agreement, and supersedes any and all prior and contemporaneous oral and written agreements, understandings, representations, inducements, promises, warranties, and conditions among the parties. No agreement, understanding, representation, inducement, promise, warranty, or condition of any kind with respect to the subject matter of this Agreement shall be relied upon by the parties unless expressly incorporated herein.

15.2  This Agreement may not be amended or modified except by an agreement in writing signed by the party against whom the enforcement of any modification or amendment is sought.

Rev. 3/24/2023