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Terms & Conditions

Childcare Design, LLC

Terms & Conditions

1) SERVICES TO BE PROVIDED. Childcare Design, LLC (“CDG”) is a Georgia architectural design firm providing architectural design services and related design, project management, and construction administration services. The Services (as defined below) are generally identified in a proposal (“Proposal”) submitted to a Client (“Client”) who is identified in such Proposal and/or named in a Request for Proposal (“RFP”) for the specific project (“Project”). These Terms and Conditions are an integral part of any CDG Proposal and are specifically incorporated herein by this reference. CDG agrees to provide the Services to Client for its sole benefit and exclusive use on the Project as stated herein and in a Proposal, and for the benefit and use of the Client’s Owner only as it pertains to this Project. There are no third-party beneficiaries to CDG’s performance of Services, except as permitted by CDG in writing.

2) STANDARD OF CARE. CDG will perform the Services generally in accordance with the Standard of Care (as defined below) for Registered Architects. Except where specified otherwise in a Proposal NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, IS MADE OR INTENDED AND THE SAME ARE SPECIFICALLY DISCLAIMED, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

3) RELIANCE ON INFORMATION PROVIDED TO CDG. Unless a Proposal states otherwise, CDG shall have the right to rely on the contents of Client, Owner, or third-party consultant documents provided to CDG -without independent verification and analysis by CDG. Client acknowledges that (i) the Work Product (as defined below) may be based in part or in whole on facts and/or assumptions provided to, but not independently, verified by CDG, (ii) Work Product will reflect CDG’s findings as to conditions that existed at the time the Services were performed and may not reflect conditions at a later time, and (iii) CDG makes no representations as to such conditions subsequent to the time the Services were performed or with respect to any facts or assumptions provided to but not independently verified by CDG.

4) WORK PRODUCT. CDG will furnish the Client with the Work Product as specified in a Proposal. All Work Product shall be CDG’s sole property, as author and owner, and CDG hereby reserves and shall retain all common law, statutory, and other rights thereto, including copyrights. CDG may retain copies of any or all Work Product and Client-provided documents. Client agrees that all Work Product furnished to Client or its agents or designees, if not paid for or if improperly used (as defined below), will be returned upon demand and will not be used for any purpose whatsoever. Client acknowledges that the Work Product is intended for the exclusive use and benefit of, and may be relied upon only by Client for the specific Owner and/or Project identified in a Proposal. If Client wishes to distribute any Work Product to any third party other than the Owner, Client and the third-party must first execute CDG’s Secondary Client Agreement. The Secondary Client Agreement shall provide that the limits of liability set forth herein in Section 9 shall be shared between or among Client and all Secondary Clients. CDG makes no representation as to the suitability of any Work Product for any such third party’s purposes. Client agrees to defend, indemnify, and hold CDG harmless from and against all Claims and Liabilities related to or arising from any unauthorized Use of the Work Product. Upon the Client’s request, Work Product may be provided on electronic media, including Revit and CAD format. The electronic copy is subject to all conditions contained in these T&Cs. Any modifications of the electronic copy by Client shall be at Client’s sole risk and without liability to CDG.

5) CLIENT’S ASSUMPTION OF DESIGN RISK AND ADDITIONAL SERVICE OPTIONS. If, as a cost-saving measure, Client does not request Additional Services, including any Additional Services specifically identified in Proposal, which CDG advises Client may be needed to properly perform the Services, or to achieve a better architectural product for the Owner, Client agrees that CDG is in no way liable for any Claim or Liability for a condition which such Additional Services might have prevented. Client agrees that CDG is not an insurer or guarantor of the appropriateness of the architectural and or structural design of a Project or the basic design concepts under which CDG was required to perform its Services.

6) INSURANCE. CDG maintains the following insurance coverages:
a) Workers’ Compensation Insurance – statutory amount.
b) Commercial General Liability Insurance – $1,000,000 per occurrence/$1,000,000 aggregate.
c) Automobile Liability Insurance – $1,000,000 combined single limit.
d) Professional Errors & Omissions – $1,000,000 per claim/$2,000,000 aggregate.

7) CLAIMS BASED ON STANDARD OF CARE. Client shall not be entitled to assert a Claim (as defined below) against CDG based on any theory of professional Terms and Conditions negligence or violation of the Standard of Care unless and until Client has obtained and provided CDG with a written opinion from a licensed, independent and reputable Architect, as appropriate for the Services in question, that CDG has violated the applicable Standard of Care.

8) CLAIMS. Any Claims, including claims based on breach of the standard of care, that Client may bring against CDG with respect to the Services must be commenced within one (1) year after the date of the specific Work Product which Client contends was improperly performed or which violated the applicable Standard of Care. The parties shall endeavor in good faith to resolve any such Claim within 30 days by communications among senior management. Prior to the initiation of any legal proceedings, the parties agree to submit all claims, disputes or controversies arising out of or in relation to the Services to nonbinding mediation. Mediation shall be conducted in the city and state where the Project is located, unless another location is mutually agreed upon, under the auspices of the American Arbitration Association (AAA) or such other mediation service or mediator upon which the parties agree. The party seeking to initiate mediation shall do so by submitting a formal written request to the other party. This provision shall survive the completion or termination of any Services, but under no circumstances shall either party call for mediation of any claim or dispute arising out of the provision of Services after such period of time as would normally bar the initiation of legal proceedings to litigate such a claim or dispute under the applicable law. Thereafter, if the dispute remains unresolved the Claim shall be settled by arbitration in accordance with the Arbitration Rules by proceeding to arbitration by the AAA , or by litigation. Any arbitrator will be selected by mutual agreement of the parties, provided, however, that if the parties cannot agree on the selection of an arbitrator, a party may demand that the arbitrator be selected in accordance with the Arbitration Rules, provided, that the arbitrator must be knowledgeable of and well versed in the Services which are in dispute. In the event of mediation or arbitration, each party shall share the mediator’s fee and any filing fees equally. In the event of litigation, each party will bear its own costs of the litigation, including attorney’s fees. The arbitrator may not award any remedy that a court having jurisdiction over the Claim could not award. The arbitrator will apply state law as it exists on the date on which the Claim arose in the state where the Project is located. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. § 2 et seq., and shall be entered as a final and binding judgment.

9) DAMAGES AND LIMITATION OF LIABILITY. THE INCLUSION OF A LIMITATION OF LIABILITY PROVISION UNDER THE TERMS SET FORTH BELOW IS A MATERIAL CONSIDERATION FOR CDG’S WILLINGNESS TO PERFORM THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY, IN THE AGGREGATE, OF CDG AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND CONSULTANTS TO THE CLIENT AND ANYONE CLAIMING BY, THROUGH, OR UNDERTHE  CLIENT, FOR ANY AND ALL INJURIES, CLAIMS, LOSSES, EXPENSES, OR DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO CDG’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 CDG FOR PERFORMANCE OF THE SERVICES. THE OWNER OF THE PROJECT FOR WHICH THE SERVICES ARE TO BE PERFORMED AND ALL THIRD-PARTY BENEFICIARIES TO THE SERVICES, IF ANY, ARE INTENDED TO BE AND HEREBY ARE BOUND BY THE TERMS OF THIS LIMITATION OF LIABILITY AND THE AGGREGATE LIMITATION OF LIABILITY CONTAINED HEREIN. THE DETERMINATION OF DAMAGES FOR WHICH CDG MAY BE LIABLE IS SET FORTH IMMEDIATELY BELOW, BUT IN NO EVENT SHALL EXCEED THE LIMITATION OF LIABILITY SET FORTH ABOVE. In the event that CDG fails to perform in accordance with the Standard of Care which is applicable to the Services, Client agrees that the damages for which CDG shall be liable shall be limited to that proportion of damages which is attributable to CDG’s percentage of fault. Further, in the event that CDG causes a deficient condition in the architectural portion of the Project in violation of the applicable Standard of Care, the liability of CDG, and Client’s exclusive remedy, for any and all damages which result therefrom is limited to the cost to either remedy the condition or to place the property or applicable portion thereof in the specified condition, as applicable, but in no event shall CDG be liable for the entire cost of replacing the property or portion thereof that is subject to the deficient condition; provided, in the event that CDG has performed its Services in violation of the applicable Standard of Care and any such deficient condition cannot be remedied for a reasonable cost, the aforesaid liability of CDG will be limited to the resultant diminution in value of the portion of the Project affected, but shall not exceed the total compensation received by CDG for performance of the services.

10) INDIRECT DAMAGES. NEITHER PARTY SHALL BE RESPONSIBLE TO THE OTHER OR TO ANY THIRD-PARTY FOR ANY ECONOMIC, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, INCOME, PROFITS, FINANCING OR REPUTATION) ARISING OUT OF OR RELATING TO THE PERFORMANCE OF THE SERVICES.

11) HOLD HARMLESS. To the fullest extent allowed by law Client and CDG mutually agree to indemnify and hold harmless the other party, their principals, officers, employees, and directors against any liability or damages, losse,s or expenses, including reasonable attorney fees, arising out of the Project to the extent caused by the negligence of the other party or other persons employed or utilized by the other party for whom the other party is legally responsible in connection with the Project and/or the performance of the Services. In no event shall the indemnification obligation extend beyond the date when the institution of legal or equitable proceedings for professional negligence would be barred by any applicable statute of repose or statute of limitations.

12) PROJECT SITE RESPONSIBILITY. If CDG performs Construction Administration Services as identified in a Proposal, the Client will arrange for right-of-entry to the Project Site as needed and will execute any necessary site access agreement. The Services do not include supervision or direction of the means, methods, or actual work of contractors, other professionals, or consultants not retained by CDG. It is agreed that CDG is not responsible for the safety or security of individuals on the Project Site and that CDG does not have the right or duty to stop the work of others.

13) UNANTICIPATED CONDITIONS. Should CDG encounter conditions during the Project that were not reasonably anticipated and/or which increase the risk involved in CDG’s performance of the Services, upon notice to Client, CDG, in its sole discretion, may
i) continue to perform the Services to completion,
ii) suspend activities and prepare a Change Order Request prior to proceeding or
iii) terminate all Services. Such termination shall not be a breach by CDG.

14) OPINIONS OF COST. If CDG is asked to provide opinions of cost for installation of materials, or construction of systems based upon CDG’s experience on similar projects such opinions are not intended for use in the Client or Owner’s firm budgeting or negotiation unless specifically agreed otherwise in advance by CDG in writing. The client understands the actual cost of work depends on many factors beyond CDG’s control and may vary significantly from CDG’s opinions.

15) TESTIMONY. Should CDG or any employee of CDG be required by any party, including Client, or Owner, or compelled by law to provide testimony (either as a fact or expert witness), produce documents, or provide other evidence in a proceeding with respect to the Project or the Services to which CDG is not a party, Client shall compensate CDG for its preparations, document retrieval and reproduction, and testimony at 3.0 times the rate shown on its then current Fee Schedule. The client also agrees to reimburse CDG for idle time spent on the location of the testimonial as needed for prompt participation, reasonable travel, lodging, and meal expenses that are incurred in conjunction with providing the above testimony, and other related services.

16) EXCUSABLE DELAY. CDG shall not be in breach of its obligations to provide Services nor liable for damages due to delay or failure to perform any obligation if such delay or failure results from circumstances beyond the control of CDG. In the event of such delay, the time for CDG’s performance shall be extended for the duration of the delay.

17) ADVERTISING. Client agrees that CDG in any manner may advertise and publish the fact that CDG has agreed to furnish Client with Services, as well as use any trademark, service mark, and trade names of Client in CDG’s advertising and promotional materials, websites, client lists, etc. Client agrees that CDG may include representation of the design of the Project, including photographs or renderings of the exterior and interior, among promotional and professional materials. CDG agrees not to publish any confidential or proprietary information provided by Client if the Client has previously advised in writing of the specific information considered to be confidential or proprietary.

18) TERMINATION. Either party may terminate CDG’s Services without cause upon 30 days’ prior written notice. In such event, Client shall take possession of the Work Product paid for and belonging to Client, and CDG shall be paid for all Services performed to the date of termination. In the event the Client requests termination without cause, CDG shall also be paid a fee of twenty percent (20%) of the remaining un-executed proposal amounts due to CDG as the reasonable expenses and costs incurred in Project close out. The Client or Owner’s failure to make payments in accordance with this Agreement shall be considered substantial nonperformance and sufficient cause for CDG to suspend or terminate services. Either the Architect or the Owner may terminate this Agreement after giving no less than seven days’ written notice if the Project is suspended for more than 90 days, or if the other party substantially fails to perform in accordance with the terms of this Agreement. CDG’s obligation to perform Services will terminate automatically and without notice upon the insolvency of, or upon the filing of a bankruptcy petition by or against Client or Owner.

19) SUSPENSION.  If the Owner suspends the Project for more than 90 cumulative days for reasons other than the fault of the Architect, the Architect may terminate the proposal contract by giving not less than seven (7) days written notice.

20) PAYMENT TERMS. Client agrees to pay each and every one of CDG’s invoices upon receipt, time being of the essence. All invoices must be paid within 30 days of receipt of the invoice. Client agrees that notwithstanding the presence of a pay-when-paid clause in any other Order issued by Client, this provision shall control. If Client reasonably objects to all or any portion of an invoice, Client shall notify CDG in writing within 10 days from the date of receipt of CDG’s invoice, give reason for the objection, and pay that portion of the invoice not in dispute. Failure of the Client to provide such written notice within the allowed 10-day period shall be deemed to be a waiver of all objections to that invoice. CDG may suspend any and all of the Services if payment of any invoiced amount not reasonably in dispute is not received by CDG within 60 days from the date of CDG’s invoice.
All outstanding balances unpaid after 30 days shall bear interest at a rate of 1.5% per month (annual rate of 18%) beginning accrual on day 31, without exception. No deductions shall be made from the Architect’s compensation on account of liquidated damages, contract extras, or other losses until the Architect has been held legally liable for said losses.

21) GOVERNING LAW. CDG’s performance of Services shall be governed by the laws of the State of Georgia. Each of the parties acknowledges that it has had an opportunity to review these Standard Terms and Conditions and negotiate CDG’s performance of Services.

22) PRIORITY. The parties agree that the provisions of the T&Cs shall control and govern over any Orders or Contracts provided to CDG by Client and that Orders may be issued by Client to, and accepted by, CDG without altering the terms hereof, regardless of any contrary language appearing therein, unless the parties specify in writing that such contrary term(s) apply to the Services which are the subject of such Orders.

23) SURVIVAL. All of Client’s obligations and liabilities, including, but not limited to, its indemnification obligations and limitations, and CDG’s rights and remedies with respect thereto, shall survive completion of the Services. If CDG provides Services to Client that the parties do not confirm through execution of a written acceptance of a Proposal or other writing the obligations of the parties to indemnify each other and the limitations on liability established in these Standard Terms and Conditions apply to such Services as if the parties had executed an agreement in writing.

24) SEVERABILITY. In the event any T&C provision is deemed invalid or unenforceable, the remaining provisions shall continue in full force and effect, and the invalid or unenforceable provision shall be interpreted and enforced as closely as possible to the intent of the parties.

25) ASSIGNMENT. CDG’s provision of Services may not be assigned by either party without the prior written permission of the other however Client specifically acknowledges and agrees that CDG may subcontract portions of the Services to specialty consultants, other architectural consultants, its affiliated companies, and/or utilize employees of its affiliated companies in performing the Services without the written approval of Client.

26) ENTIRE AGREEMENT. These Terms and Conditions are an integral part of any CDG proposal and CDG’s performance of Services and constitute the entire agreement between the parties and supersede any previous written or oral contracts, promises, or negotiations and can be changed only by a written instrument signed by both parties.

27) DEFINITIONS. These terms will have the following meanings when used herein and in any Proposal:
a) AAA – American Arbitration Association.
b) Arbitration Rules – The Commercial Arbitration Rules of the AAA.
c) Claim(s) – All claims, causes of actions, suits, arbitrations, administrative proceedings, and demands for any and all damages, injunctive or any other relief based upon any cause of action whatsoever.
d) Deliverables – The information to be produced and transmitted by CDG to the Client as generally defined within the agreed-upon Proposal.
e) Indemnitee(s) – Calbert Design Group, LLC, CDG, its subsidiaries, affiliates, and subcontractors, including its respective officers, directors, employees, principals, partners, agents, successors, and assigns.
f) Information to be provided to CDG by Client – The specific information which must be provided to CDG in a timely manner to enable CDG to produce and transmit the deliverables defined in a Proposal.
g) Liability(ies) – All liabilities, damages, losses, costs, expenses, settlements, judgments, awards, and governmental penalties and sanctions, including reasonable attorneys’ and experts’ fees, including those attributable to bodily injury (including death), personal injury and property damage.
h) Mediation Rules – The Commercial Mediation Rules of the AAA.
i) Order(s) – any order or other form writings issues or signed by the parties, such as purchase orders, contracts, or work orders.
j) Services – Architectural design services and related drafting, project management, contract administration, and other consulting services as specifically outlined in a Proposal.
k) Standard of Care – The degree of skill and care ordinarily exercised under similar conditions by reasonably prudent architects performing similar services and practicing in the same or similar locality at the time of the performance as applicable for the specific architectural design or contract administration services identified in a proposal.
l) Use or Used – Any distribution, publication, use, or reuse of Work Product.
m) Work Product(s) – All documents and deliverables including any Architectural Design Documents, Schematic Design Documents, Concept Design Documents, Conceptual Design Narratives, Design Development Documents, Construction Documents including but not limited to layouts, drawings, floor plans, specifications, milwork designs, finish schedules, details, calculations, and progress drawings whether a work-in-progress or final and whether paid for or not, including, but not limited to, analyses, drawings, specifications, reports and related documents generated by CDG in performance of Services.

28) WEBSITE ADVERTISING. 

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Rebecca Calbert has over 35 years of professional experience designing education, mixed-use, commercial, retail, multi-family housing, and laboratory buildings while working at various Award Winning Architectural firms in the Metro Atlanta area. She now combines her extensive design and construction experience with her passion for children’s built environments.  Blending functional requirements and style aesthetics to complement and support the design needs of children and their families is only the beginning. Rebecca’s approach to child-centric design juggles the many priorities of building owner/operators with building cost, construction feasibility, and child and community safety.


Awards/Honors:

American Institute of Architects, Service to the Profession Award, 2009.
Niles Bolton Associates, Mark Mueke Award, 2007.

A limited portfolio of example projects can still be found on CalbertDesign.com 

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2950 Cherokee St NW, Suite 600

Kennesaw, GA 30144

Rebecca@ChildcareDesign.com

404.689.5001