By visiting the website www.stackrockgroup.com, viewing, accessing or otherwise using any of the services or information created, collected, compiled or submitted to Stack Rock Group, you agree to be bound by the following Terms and Conditions. If you do not want to be bound by our Terms your only option is not to visit, view or otherwise use the services of Stack Rock Group. You understand, agree and acknowledge that these Terms constitute a legally binding agreement between you and Stack Rock Group and that your use of www.stackrockgropup.com or any if its services shall indicate your conclusive acceptance of this agreement.
Stack Rock Group reserves the right to modify these Terms and Conditions from time to time at our sole discretion and without any notice. Changes to our Terms and Conditions become effective on the date they are posted and your continued use of www.stackrockgroup.com or any of its services after any changes to Terms will signify your agreement to be bound by them.
ARTICLE 1 – Landscape Architectural Services
1.1 Standard of Care
The Landscape Architectural Services shall be performed with care and diligence in accordance with the professional standards appropriate for a project of the nature and scope of this Project.
The Landscape Architect shall coordinate the services of its consultants and shall cooperate with the Client’s representatives and separate consultants in the best interest of the Project.
The Landscape Architect represents that it and its consultants have and shall maintain throughout the performance of the services under this Agreement the requisite licenses, registrations, and/or certifications required for the performance of these services in the
jurisdiction in which the Project is located.
1.4 Scope of Services
The Scope of Landscape Architectural Services to be provided under this agreement is detailed in the included proposal.
1.5 Supplemental Services
Supplemental Services are detailed in Exhibit “B.” Supplemental Services are beyond the scope of the basic Scope of Services, and when requested in writing by the Client, shall entail additional compensation (either on the hourly basis stated in Exhibit “C” or on the basis of a negotiated sum) beyond the Compensation stated in the Preliminary Provisions.
1.6 Approval of Services/Changes to Approved Services
The Landscape Architect shall proceed with a phase or design package of the Landscape Architect’s services only after receiving the Client’s written approval of the services and deliverables provided in the previous phase and written authorization to proceed with the next
phase. Revisions to drawings or other documents shall constitute Supplemental Services when made necessary because of Client-requested changes to previously approved drawings or other documents, or because of Client changes to previous budget parameters and/or Program descriptions.
1.7 Opinions of Probable Construction Costs
Opinions of probable construction costs provided by the Landscape Architect are based on the designer’s familiarity with the landscape construction industry and are provided only to assist the Client’s budget planning; such opinions shall not be construed to provide a guarantee or warranty of the actual construction costs at the time construction bids are solicited or construction contracts negotiated. Unless expressly agreed in writing and signed by the parties, no fixed limit of construction costs is established as a condition of this Agreement by the furnishing of opinions of probable construction costs.
1.8 Construction Safety
The presence of the Landscape Architect, its employees, or consultants at the Project site shall not be deemed an assumption by the Landscape Architect of any obligations, duties, or responsibilities for safety, including but not limited to construction means, methods, sequences, techniques, or procedures necessary for performing, superintending, or coordinating the work of the Project in accordance with the Construction Documents or any regulatory health or safety requirements. The Landscape Architect, its employees, and consultants have no authority to exercise any control over any construction contractor, its employees, or subcontractors in connection with their work or health and safety programs and procedures.
ARTICLE 2 – Client’s Responsibilities
Stack Rock Group, Inc. will assist the client with defining the programming. This will be done in accordance with the procedures set forth in the Proposal. This will help the client to provide the detailed Project description and budget parameters. At the time of completion these items will be designated Exhibit “A” and attached hereto.
2.2.1 The Client shall provide site surveys and legal information, including as applicable: written legal description of the site, a land
survey by a professional land surveyor who is licensed or registered under the law of
the jurisdiction in which the property is located, rights-of-way, easements, encroachments, zoning, covenants, or deed or other restrictions.
2.2.2 The Client shall be responsible for all legal, accounting, and insurance services the Client may require or deem necessary in the interest of the Project.
2.3 Independent Testing
The Client shall provide independent testing services when deemed necessary to determine site conditions such as soil and subsoil conditions, water, pollution, and hazardous waste conditions.
The Landscape Architect shall be entitled to rely on the accuracy and completeness of the information, test results, and work product provided by the Client and the Client’s consultants. The Landscape Architect shall not be responsible for calculations, specifications, or designs based on erroneous, inaccurate, or incomplete information provided by the Client.
2.5 Client’s Representative
The Client shall designate a representative with authority to act on the Client’s behalf with regard to the Project. If for any reason Client’s designated representative is replaced during
the progress of the Project, the Landscape Architect shall have the right to renegotiate its compensation in response to the change.
Client’s decisions, approvals, reviews, and responses shall be communicated to the Landscape Architect in a timely manner so as not to delay the performance of the Landscape Architectural Services. Comments, if from a committee client or multiple interested entities,
must be a consolidation of all comments in order to provide clear direction to the Landscape Architect and to avoid delays.
2.7 Notice of Nonconformance
If the Client observes or becomes aware of any errors or omissions or inconsistencies in any documents provided by the Landscape Architect or any fault or defect in the Project, the Client shall promptly give written notice thereof to the Landscape Architect.
2.8 Project Permit and Review Fees
The Client shall pay all fees required to secure jurisdictional approvals for the Project.
ARTICLE 3 – Ownership of Documents
3.1 The Landscape Architect shall be deemed the author and owner of all deliverables provided to the Client, including but not limited to plans, drawings, specifications, Construction Documents, displays, graphic art, photographs, and other images and devices of any medium, including electronic data or files, which are developed, created, or derived pursuant to this
Agreement by the Landscape Architect (collectively, the “Design Materials”).
3.2 Subject to payment by the Client of all fees and costs owed to the Landscape Architect, the Landscape Architect grants to the Client a nonexclusive license to reproduce the Design Materials solely for the construction and use of the Project. Termination of this Agreement prior to the completion of the Project shall terminate this license; all Design Materials and copies thereof in the Client’s possession or control shall be returned to the Landscape Architect within 21 days of the notice of termination.
3.3 The Client, to the fullest extent permitted by law, shall indemnify and hold harmless the Landscape Architect for any costs, including legal fees or defense costs, liability or loss, which result from any unauthorized modification of the Design Materials or the use of the Design Materials for any purpose other than the Project.
3.4 In the event this Agreement is terminated prior to the completion of the Project, the Landscape Architect shall have no liability to the Client or to anyone claiming through the Client for any claims, liabilities, or damages resulting from the use, misuse, or modification of the Design Materials without the Landscape Architect’s approval, and the Client agrees to indemnify and defend the Landscape Architect against all such claims.
ARTICLE 4 – Landscape Architect Compensation
4.1 Compensation for the Scope of Services described in section 1.4 of Exhibit “B” to be performed under this Agreement shall be the stipulated sum indicated in the Preliminary
Provisions plus Reimbursable Expenses as defined below. Supplemental Services, described in section 1.5 of Exhibit “B,” when requested in writing by the Client, shall be compensated on an hourly basis at the rates provided in Exhibit “C” or on the basis of a negotiated fee provided in an amendment to this Agreement.
4.2 Reimbursable expenses are expenditures for the Project made by the Landscape Architect, its employees, and consultants in the interest of the Project plus an administrative fee of 10%. Reimbursable expenses include but are not limited to the following:
4.2.1 Travel expenses in connection with the Project; living expenses in connection with out-of-town travel, long-distance communications;
4.2.2 Costs of reproductions, faxes, postage and handling, messenger and overnight delivery services;
4.2.3 If authorized in advance by the Client, overtime-related employee expenses;
4.2.4 Costs of renderings, photographs, models, and mock-ups requested by the Client;
4.2.5 Expense of professional liability insurance dedicated exclusively to the Project, or additional insurance coverage or limits requested by the Client in excess of that normally carried by the Landscape Architect and its consultants;
4.2.6 Costs of printing and delivering bid packages;
4.2.7 Services of professional consultants which cannot be quantified at the time of contracting; and
4.2.8 Other, similar direct Project-related expenditures.
4.3.1 For residential projects an initial payment equal to 50% of contract amount shall be made upon execution of this Agreement; this amount shall be credited to the Client’s account at final payment.
4.3.2 Monthly payments to the Landscape Architect shall be based on (1) the percentage of the Scope of Services completed in accordance with the Schedule of Services provided in Exhibit “D” herein and shall include payments for (2) Supplemental Services performed, and (3) Reimbursable Expenses incurred.
4.3.3 Payments are due and payable upon receipt of the Landscape Architect’s invoice. Invoiced amounts unpaid 30 days after the invoice date shall be deemed overdue and shall accrue 2% interest per month. Pursuant to section 7.2, herein, at the Landscape Architect’s option, overdue payments may be grounds for suspension of services or termination of this Agreement.
4.4 Extended Services
If through no fault of the Landscape Architect the Scope Services described in section 1.4 (Exhibit “B”) have not been completed within the term indicated in the Schedule of Services provided in Exhibit “D,” the compensation for services rendered after that time period shall be
renegotiated or shall be on the basis of the hourly rates provided in Exhibit “C” hereof.
4.5 Hourly Rates
The Landscape Architect may provide Additional Services beyond those listed in the Scope of Services by a negotiated sum or on an hourly basis. The Landscape Architect’s hourly rates are as follows:
Hourly rates specified above are valid for one (1) year from the date listed on the Scope of Services and shall be increased five percent (5%) on the first day of the subsequent year to reflect market conditions, employee benefits and salary compensation.
ARTICLE 5 – Insurance, Indemnification, Consequential Damages
The Landscape Architect shall secure and maintain insurance coverage indicated as follows:
$1,000,000.00/$2,000,000.00 per claim/aggregate
Commercial General Liability
$1,000,000.00 per occurrence
Comprehensive Automobile Liability
$1,000,000.00 per accident
$500,000.00 statutory limits
Client and Landscape Architect each agree to indemnify and hold harmless the other, and their respective officers, employees, agents, and representatives, from and against liability for all claims, losses, damages, and expenses, including reasonable attorneys’ fees, to the extent such claims, losses, damages, or expenses are caused by the indemnifying party’s negligent acts, errors or omissions. In the event claims, losses, damages, or expenses are caused by the joint or concurrent negligence of Client and Landscape Architect, they shall be borne by each party in proportion to its negligence.
5.3 Consequential Damages
The Landscape Architect and the Client waive consequential damages for claims, disputes, or other matters in question which arise out of or are related to this Agreement, including but not limited to consequential damages due to the termination of this Agreement by either party in accordance with the provisions of Article 7 hereof.
ARTICLE 6 – Dispute Resolution
6.1 If a dispute arises out of or relates to this Agreement, the parties shall endeavor to resolve their differences first through direct discussions between the parties or their representatives who shall have authority to settle the dispute. If the dispute has not been settled within 14 days of the initial discussions, the parties shall submit the dispute to mediation in accordance with section 6.2.
6.2 If the dispute is not settled pursuant to section 6.1, before recourse to any other dispute resolution procedure, the parties shall endeavor to settle the dispute by mediation under the current Construction Industry Mediation Rules of the American Arbitration Association. The location of the mediation shall be the location of the Project. A request for mediation may be filed with the American Arbitration Association or any other mediation service acceptable to both parties. The parties agree to conclude the mediation within 60 days of filing the request.
6.3 Unless otherwise agreed in writing, the Landscape Architect agrees to continue to perform its services during any dispute resolution proceedings. If the Landscape Architect continues to perform, the Client shall continue to make payments in accordance with this Agreement for amounts not in dispute.
6.4 Appropriate provisions for consolidation shall be included in other contracts relating to
the Project so that all parties necessary to resolving a claim are parties to the same dispute resolution proceeding.
6.5 Unless otherwise agreed, the cost of mediation shall be shared equally by the parties.
6.6 Nothing in these provisions shall limit rights or remedies not expressly waived under applicable lien laws.
ARTICLE 7 – Suspension/Termination
7.1 This Agreement may be terminated by either party on 7 days’ written notice should the other party fail substantially to perform in accordance with its terms through no fault of the party initiating the termination, provided the defaulting party has not cured or in good faith diligently commenced to cure the breach during the 7-day notice period.
7.2 The Client’s failure to make payments to the Landscape Architect in accordance with the provisions of this Agreement shall be deemed a substantial failure to perform and a cause for termination; however, in this circumstance the Landscape Architect, at its option, may elect to suspend its services on 7 days’ notice to the Client. The Landscape Architect shall have no liability to the Client for any delays caused by a suspension under this provision.
7.3 If the Client suspends the Landscape Architect’s services for any reason, the Landscape Architect shall be compensated for all services performed to that date, and the Landscape Architect shall have no liability to the Client for any delays caused by the Client’s decision to suspend the services.
7.4 When suspended services are resumed, the Landscape Architect shall be compensated for expenses incurred by the interruption and resumption of the Landscape Architectural Services, and the Landscape Architect Compensation and the Schedule of Services for the services remaining to be performed shall be equitably adjusted.
7.5 A suspension of services by either party for more than 30 days may, at the Landscape Architect’s option, be deemed grounds for termination of the Agreement.
7.6 If termination is not due to the fault of the Landscape Architect, the Client shall pay, in addition to Compensation and Reimbursable Expenses due at the time of the termination, all actual costs and expenses reasonably incurred by the Landscape Architect in connection with such termination. In addition, the Client shall comply and cooperate in accordance with the provisions of Article 3, Ownership of Documents, herein.
7.7 The Client may terminate this Agreement for convenience and without cause with 7 days’ notice to the Landscape Architect providing, in addition to the compensation, expenses, and compliance with the Ownership of Documents provisions indicated in section 7.6, above, the Client pays to the Landscape Architect an amount representing the anticipated profit on the Scope of Services not performed under this Agreement because of the Client’s decision to terminate for its convenience.
ARTICLE 8 – Other Terms and Conditions
8.1 Force Majeure
Either party shall be relieved of its obligations hereunder in the event and to the extent that performance hereunder is delayed or prevented by any cause beyond its control and not caused by the party claiming relief hereunder, including, without limitation, acts of God, public enemies, war, insurrection, acts or orders of governmental authorities, fire, flood, explosion, or the recovery from such cause (“Force Majeure”). The parties agree to make all reasonable efforts to mitigate the delays and damages of Force Majeure.
Notices required pursuant to this Agreement shall be sufficient if delivered personally or by registered or certified mail, return receipt requested at the addresses indicated on the first page of this Contract.
Neither party shall assign their interest in this Agreement without the express written consent of the other, except as to the assignment of proceeds.
8.4 Third Party Relationships
Nothing in this Agreement shall create a contractual relationship with, an obligation to, or a cause of action in favor of any third party against either the Client or the Landscape Architect.
If any term or provision of this Agreement shall be found to be invalid or unenforceable, the remaining provisions shall, to the fullest extent permitted by law, remain in full force and effect.
Captions of articles, sections, paragraphs, or subparagraphs of this Agreement are for convenience and reference only.
8.7 Governing Law
This Agreement shall be governed by the law in effect at the Landscape Architect’s principal place of business.
8.8 Complete Agreement
This Agreement represents the entire understanding between the Client and the Landscape Architect and supersedes all prior negotiations, representations, or agreements, whether written or oral. This Agreement only may be amended in writing signed by both the Client and the Landscape Architect.
8.9 Allocation of Risk
To the fullest extent permitted by law, the total liability, in the aggregate, of Landscape Architect and Landscape Architect’s officers, directors, employees, agents, and consultants to Client and anyone claiming by, through or under Client, for any and all injuries, claims, losses, expenses, or damages whatsoever arising out of or in any way related to Landscape Architect’s services, the Project or this Agreement, from any cause or causes whatsoever, including but not limited to, negligence, strict liability, breach of contract or breach of warranty shall not exceed the total compensation received by Landscape Architect under this Agreement, or the total amount of $50,000.00, whichever is greater.
8.10 Consequential Damages
Neither the Client nor the Landscape Architect shall be liable to the other or shall make any claim for any incidental, indirect or consequential damages arising out of, or connected in any way to the Project or this Agreement. This mutual waiver includes, but is not limited to, damages related to loss of use, loss of profits, loss of income, loss of reputation, unrealized savings or diminution of property value and shall apply to any cause of action including negligence, strict liability, breach of contract and breach of warranty.
8.11 Third Parties
Nothing contained in this Agreement shall create a contractual relationship with, or a cause of action in favor of, a third party against either the Client or Landscape Architect. Landscape Architect’s services hereunder are being performed solely for the benefit of the Client, and no other entity shall have any claim against Landscape Architect because of this Agreement or Landscape Architect’s performance of services hereunder.