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HomeMy WebLinkAboutKIN 94 025 Agree - T E. Brown · . · · . . THE CORPORATION OF THE TOWN OF KINCARDINE BY-LAW BY-LAW NO. 1994-25 A BY-LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT WITH THOMAS E. BROWN ARCHITECT INC. WHEREAS the Council for The Corporation of the Town Kincardine deems it advisable to enter into an agreement Thomas E. Brown Architect Inc. for the provision architectural services during the construction of the firehall¡ NOW THEREFORE the Council for The Corporation of the Town of Kincardine ENACTS as follows: of with of new 1. That The Corporation of the Town of Kincardine enter an agree~e~t with Thomas E. Brown Architect Inc. the prov1s1on of architectural services during construction of the new firehall. into for the 2. That the mayor and clerk be authorized to sign, on behalf of The Corporation of the Town of Kincardine, the agreement with Thomas E. Brown Architect Inc. which is attached to this by-law and to affix the Town's Corporate seal as and when required. 3. This by-law shall come into full force and effect upon its final passage. 4. This by-law may be cited as the "Thomas E. Architectural Services Agreement By-law". Brown READ a FIRST and SECOND time this 7th day of April 1994. READ a THIRD time and FINALLY PASSED this 21st day of April, 1994. ~~ø~· Mayor ~ Clerk I I • • Canadian Standard Form of Agreement Between Client and Architect DOCUMENT SIX 1989 Edition COMMITTEE OF CANADIAN ARCHITECTURAL COUNCILS CanaIan Standard Form of Agreement between Client and Architect DOCUMENT 6 1989 Edition This document has been endorsed by the following member associations of the Committee of Canadian Architectural Councils (CCAC): Architectural Institute of British Columbia Alberta Association of Architects Saskatchewan Association of Architects Manitoba Association of Architects Ontario Association of Architects Architects Association of New Brunswick Nova Scotia Association of Architects Architects Association of Prince Edward Island Newfoundland Association of Architects Royal Architectural Institute of Canada Enquiries should be directed to: Practice Affairs Committee of Canadian Architectural Councils 970 Richards Street Vancouver, B.C. V6B 3C1 (604) 669 -2249 Contents Agreement Between Client and Architect 1. Definitions 2. Responsibilities 2.1 Architect's Basic Services 2.2 Construction Cost and Estimates of Construction Cost 2.3 Client's Responsibilities 2.4 Architect's Additional Services 3. General Conditions 3.1 Copyright and Use of Documents 3.2 Authorship 3.3 Arbitration 3.4 Project Suspension or Abandonment 3.5 Termination 3.6 Law Governing This Agreement 3.7 Successors and Assigns 3.8 Extent of Agreement 3.9 Liability of the Architect 4. Fees and Reimbursable Expenses 5. Other Conditions of Services CCAC Copyright 1989 Must not be copied in whole or in part without the written permission of CCAC. Certain provisions of this document have been derived, with modifications, from AIA Document B141 copright© 1977 by the American Institute of Architects. All rights re- served. AIA ©. AIA copyrighted material has been reproduced with permission of the American Institute of Architects under permission number 83073. Further reproduc- tion is prohibited. • Canadian Standard Form of Agreement Between Client and Architect 1989 Edition Agreement made as of the 29th. day of March in the year of nineteen hundred and Ninety Four. Between the Client: The Corporation of The Town of Kincardine (Include name and address) 707 Queen Street Kincardine, Ontario N2Z 1Z9 and the Architect: Thomas E. Brown Architect Inc. (Include name and address) 394 King Street East Toronto, Ontario M5A 1K9 For the following Project: New Fire Department Headquarters (Include detailed description of project location and scope) Broadway Avenue Kincardine, Ontario The Client and the Architect agree as set forth in the following terms and conditions. • 1 Definitions Project Budget 1.1 The Project Budget is the Client's estimated total expenditure for the entire project. It includes the Construction Budget and all other costs to the Client for the project such as but not limited to professional fees, costs of land, and rights of way. Construction 1.2 The Construction Budget is the Client's estimated Construction Cost Budget including contingencies for cost increases. Construction 1.3 Construction Cost means the contract price(s) of all elements of the Cost project designed or specified by or on behalf of the Architect, including all applicable taxes whether recoverable or not. Where there is no contract price for all or part of the project, the Construction Cost shall be the estimated cost at market rates at the estimated time of Construction as determined by the Architect. Construction Cost does not include the compensation of the Architect and the Architect's consultants, the cost of the land, or other costs which are the responsibility of the Client. In the event that labour or material is furnished by the Client below market cost or when old materials are re -used, the Construction Cost for purposes of establishing the fee is to be interpreted as the cost of all materials and labour necessary to complete the Work as if all materials had been new and if all labour had been paid for at market prices at the time of construction or, in the event that the construction does not proceed, at existing market prices at the estimated time of construction. Contract 1.4 The Contract is the agreement between the Client and the Contractor for the provision of labour, materials and equipment for the execution of the Work by the Contractor and sets out their respective duties, responsibilities and obligations as prescribed in the Contract Documents and represents the entire agreement between the parties. The Contract supersedes all prior negotiations, representations or agreements, either written or oral, including the bidding documents. Contract 1.5 The Contract Documents consist of the executed agreement between the czcl Documents Client and the Contractor, the general conditions of the Contract, the plans, sketches, drawings, graphic representations, specifications and such other documents as are identified in the agreement and the general conditions as constituting part of the Contract Documents. Contractor 1.6 The Contractor is the person, firm, or corporation contracting with the Client to provide labour, materials and equipment for the execution of the Work. Subcontractor 1.7 A Subcontractor is a person, firm, or corporation contracting with the Contractor to perform a part or parts of the Work included in the Contract, or to supply products worked to a special design according to the Contract Documents. Substantial 1.8 Substantial Performance of the Work is as defined in the lien legislation Performance applicable to the place of the project. If such legislation is not in force or does not contain such definition, Substantial Performance shall have been reached when the Work is ready for use or is being used for the purpose intended and is so certified by the Architect. The Work 1.9 The Work means the total construction and related services required by the Contract Documents. Place of the 1.10 The Place of the Work is the designated site or location of the project of Work which the Work may be the whole or a part. Prime Rate 1.11 Prime Rate means the lowest rate of interest quoted by chartered banks to the most credit - worthy borrowers for prime business loans as determined and published by the Bank of Canada. • Responsibilities 2 The Architect's basic services consist of the five phases described in 2.1.1 Article 2.1 paragraphs 2.1.2 through 2.1.26 and include normal structural, Architect's mechanical and electrical engineering services. Basic Services The Architect shall study the program of requirements furnished by the 2.1.2 Schematic Client and shall study the characteristics of the site. Design Phase The Architect shall review and comment on the Client's Construction 2.1.3 Budget in relation to the program of requirements. The Architect shall review with the Client alternative approaches to the 2.1.4 design of the project and the types of construction contracts. Based on the mutually agreed upon program of requirements and 2.1.5 Construction Budget, the Architect shall review all applicable statutes, regulations, codes and by -laws and where necessary review the same with the authorities having jurisdiction and then prepare for the Client's review and approval schematic design documents to illustrate the scale and character of the project and how the parts of the project functionally relate to each other. The Architect shall prepare and submit to the Client an estimate of 2.1.6 Construction Cost based on current area, volume or other unit costs. Based on the approved schematic design documents and approved 2.1.7 Design estimate of Construction Cost, the Architect shall prepare, for approval Development by the Client, design development documents consisting of drawings and Phase other documents appropriate to the size of the project to fix and describe the size and character of the entire project as to the architectural, structural, mechanical, and electrical systems, materials and such other elements as may be appropriate. The Architect shall prepare and submit to the Client for approval a 2.1.8 revised estimate of the Construction Cost. The Architect shall continue to review all applicable statutes, regulations, 2.1.9 Q.) codes and by -laws in relation to the design of the project. ° - 0 Based on the approved design development documents and approved 2.1.10 Construction o estimate of Construction Cost, the Architect shall prepare, for approval Documents by the Client, construction documents consisting of drawings and Phase specifications setting forth in detail the requirements for the construction of the project. The Architect shall advise the Client of any adjustments to previous 2.1.11 estimates of Construction Cost indicated by changes in requirements or general market conditions. The Architect shall advise the Client on the Bidding Documents. The 2.1.12 Architect shall obtain instructions from the Client for the preparation of the necessary bidding information, bidding forms, conditions of the Contract and the form of Contract between the Client and the Contractor. The Architect shall review all statutes, regulations, codes and by -laws 2.1.13 applicable to the design and where necessary review the same with the authorities having jurisdiction in order that the required consents, approvals, licences and permits necessary for the project can be applied for and obtained. i • Bidding or 2.1.14 The Architect, following the Client's approval of the construction Negotiation documents and of the latest estimate of the Construction Cost, shall assist Phase and advise the Client in obtaining bids or negotiated proposals and in awarding and preparing contracts for construction. Construction 2.1.15 During the construction phase — contract administration, the Architect Phase — Contract shall be a representative of the Client, shall advise and consult with him Administration and shall have authority to act on his behalf to the extent provided in this agreement, and shall at all times have access to the Work wherever it is in preparation or progress. All instructions to the Contractor shall be forwarded through the Architect. 2.1.16 The Architect shall carry out the general review of the Work at intervals appropriate to the stage of construction which the Architect considers necessary to determine if the Work is in general conformity with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on -site reviews. The Architect shall keep the Client informed of the progress and quality of the Work and shall report to the Client any defects or deficiencies in the Work observed during the course of the site reviews. It is understood that the reviews being conducted by the Architect are for the following purposes: 1. To examine, evaluate and report to the Client upon representative samples of the Work; any comments on the balance of the Work made during the course of the site reviews are assumptions — based upon extrapolation. 2. To determine if the Work is in general conformity with the Contract Documents for the project. 2.1.17 The Architect shall not: 1. be responsible for deficiencies in the Work or for the acts or omissions of the Contractor, Sub - Contractors or any other persons performing any of the Work, or for the failure of any of them to carry out the Work in accordance with the Contract Documents. 2. have control, charge or supervision of, nor responsibility for construction means, methods, techniques, sequences, or procedures or for safety precautions and programs in connection with the Work. 2.1.18 The Architect shall determine the amounts owing to the Contractor based on observations at the site and on evaluations of the Contractor's application for payment, and shall issue certificates for payment in such amounts, proportionate to the amount of the Contract, for Work performed and products delivered to the Place of the Work as provided in the Contract Documents. The issuance of a certificate for payment shall constitute a representation by the Architect to the Client, based on the Architect's observations at the site as provided in paragraph 2.1.16 and on the data comprising the Contractor's application for payment, that the Work has progressed to the point indicated; that to the best of the Architect's knowledge, information and belief, the Work observed during the course of general review is in general conformity with the Contract Documents; and that the Contractor is entitled to payment in the amount certified. Such certification is subject to: (a) general review and evaluation of the Work as it progresses for general conformity as provided in paragraph 2.1.16. (b) the results of any subsequent tests required by or performed under the Contract Documents. (c) minor deviations from the Contract Documents correctable prior to completion, and (d) any specific qualifications stated in the certificate for payment. The issuance of the certificate for payment shall not be a representation that the Architect has made any examination to ascertain how and for what purpose the Contractor has used the monies paid on account of the contract price, or that the Contractor has discharged the obligations imposed on him by Law under the Workers' Compensation Act, or other applicable statute, non - compliance with which may render the Client personally liable for the Contractor's default. • The Architect shall be the interpreter of the requirements of the 2.1.19 Contract Documents and shall make findings as to the performance thereunder by both the Client and Contractor. The Architect shall render interpretations as may be required with reasonable promptness on written request of either the Client or the Contractor, and shall render written findings within a reasonable time, on all claims, disputes and other matters in question between the Client and the Contractor relating to the execution or progress of the Work or the interpretation of the Contract Documents. Interpretations and findings of the Architect shall be consistent with the 2.1.20 intent of and reasonably inferable from the Contract Documents and shall be in written or graphic form. The Architect shall not show partiality to either the Client or the Contractor and shall not be liable for the result of any interpretation or finding rendered in good faith in such capacity. The Architect shall have the authority to reject work which does not 2.1.21 conform to the Contract Documents. Whenever, in the Architect's opinion, it is necessary or advisable for the implementation of the intent of the Contract Documents, the Architect shall have authority to require special inspection or testing of the Work by others, whether or not such work has been fabricated, installed or completed. The Architect shall review or take other appropriate action with reason- 2.1.22 able promptness upon the Contractor's submittals such as shop 7 drawings, product data, and samples, for conformance with the general design concept of the Work as indicated in the Contract Documents. The Architect's review of a specific item shall not indicate acceptance of an ti assembly of which the item is a component. The Architect shall prepare change orders for the Client's approval and 2.1.23 Q) signature in accordance with the Contract Documents and shall have authority to order minor adjustments in the Work not involving an adjustment in the contract price or an extension of the contract time which are consistent with the intent of the Contract Documents. The Architect shall determine the date of Substantial Performance and 2.1.24 shall receive from the Contractor and forward to the Client for the Client's review the written warranties and related documents. The Architect shall determine the date when the Contract shall be deemed to be completed. The extent of the duties, responsibilities and limitations of authority of 2.1.25 the Architect as the Client's representative during construction shall not be modified or extended without written consent of the Client and the Architect. Before the end of the period of one year following the date of Substantial 2.1.26 Performance, the Architect shall review any defects or deficiencies which have been reported by the Client during that period, and the Architect shall notify the Contractor of those items requiring attention by the Contractor to complete the Work in accordance with the Contract. 0 • • Article 2.2 2.2.1 The Architect shall evaluate the Client's Construction Budget and shall Construction prepare estimates of the Construction Cost as previously set out in this Cost and agreement. Neither the Architect nor the Client has control over the cost Estimates of of labour, materials, or equipment, over the Contractor's methods of Construction determining bid prices, or over competitive bidding, market, or Cost negotiating conditions and therefore the Architect cannot warrant or represent that bids or negotiated prices will not vary from the estimate of Construction Cost. Variance from the Construction Budget or Project Budget established under this agreement shall not constitute grounds for the Client withholding fees due to the Architect. 2.2.2 If the bidding or negotiation phase has not commenced within three months after the Architect submits the construction documents to the Client, the Construction Budget shall be adjusted to reflect any change in the general level of prices in the construction industry between the date of submission of the construction documents to the Client and the date on which proposals are sought. 2.2.3 If the lowest bona fide bid or lowest negotiated proposal exceeds the latest approved estimate of Construction Cost as set out in paragraph 2.1.11 by more than 10 %, the Client shall: (a) give written approval of an increase in the Construction Budget, or (b) co- operate in revising the scope or quality of the Work as necessary to reduce the Construction Cost, or (c) authorize rebidding or renegotiating of the contract, or ( d) terminate if the project is abandoned, in accordance with paragraph 3.5.3. 2.2.4 If the lowest bona fide bid or lowest negotiated proposal exceeds the latest approved estimate of Construction Cost prepared as set out in c paragraph 2.1.11 by more than 10 %, unless there has been an increase in the Construction Budget or the project has been abandoned or terminated in accordance with paragraph 3.5.3, the Architect shall modify at no additional fee, the drawings and specifications, or provide other services tzt as necessary to reduce the Construction Cost to within 10% of the latest approved estimate unless the excess is due to extraordinary market conditions. The providing of such services shall be the limit of the Architect's responsibility, and having done so, the Architect shall be entitled to compensation for all other services performed, in accordance with the agreement, whether or not the construction phase is commenced. Article 2.3 2.3.1 The Client shall provide full information regarding requirements for the Client's project including a program, which shall set forth the Client's design Responsibilities objectives, constraints, and criteria, including spatial and functional requirements and relationships, flexibility and expandability, special equipment and systems and site requirements. 2.3.2 The Client shall provide to the Architect a Construction Budget. 1 0 • • The Client shall furnish information, surveys, reports and services as set 2.3.3 out below, the accuracy and completeness of which the Architect shall be entitled to rely on and contracts for the provision of such information, surveys, reports and services, whether arranged by the Client or the Architect, shall be considered direct contracts with the Client unless explicitly provided otherwise: (a) a legal description and a certified land survey of the site and adjoining properties as necessary showing the following information, as applicable: grades and lines of streets, alleys, pavements and adjoining property; rights of way; restrictions; easements; encroach- ments; zoning; deed restrictions; boundaries and contours of the site; locations, dimensions and data pertaining to existing buildings, other improvements, and trees; and full information concerning service and utility lines, both public and private, above and below grade, including inverts and depths; (b) subsurface investigation and report; (c) reports and appropriate professional recommendations of specialist consultants when required by the Architect; (d) inspections, laboratory and field tests and reports as required by the Architect, the authorities having jursidiction or the Contract Documents; and (e) all legal, accounting and insurance counselling services as may be necessary at any time for the project, including such auditing services as the Client may require to verify the Contractor's applications for payment or to ascertain how or for what purpose the Contractor uses the monies paid by or on behalf of the Client. The Client shall furnish required information, surveys, reports and 2.3.4 services as set out in paragraph 2.3.3 and such other information as may be required from time to time, examine documents submitted by the Architect and give the Architect decisions and approvals as necessary. Q.) The Client shall obtain all required consents, approvals, licences and 2.3.5 permits from authorities having jurisdiction. Q.) If the Client observes or otherwise becomes aware of any fault or defect 2.3.6 in the project or any nonconformity with the requirements of the Contract, he shall immediately notify the Architect. The Client shall promptly fulfill his responsibilities for the orderly 2.3.7 progress of the Architect's services and of the Work. The Client shall authorize a person to act on his behalf with respect to 2.3.8 the project when necessary. The authorization including the scope of authority shall be in writing. The Architect is able to provide additional services to the Client as listed 2.4.1 Article 2.4 below. Additional services are not included in the basic services, and shall Architect's only be provided if authorized by the Client and shall be paid for by the Additional Client as provided in this agreement. Services Providing analyses of the Client's needs and developing a program of 2.4.2 Predesign spatial and functional requirements for the project. Providing financial feasibility, Project Budget or other special studies. 2.4.3 Providing site evaluations, planning, or environmental studies. 2.4.4 'n 0 • • 2.4.5 Providing submissions required for approval by authorities having jurisdiction over the project including submission for zoning changes, variances from by -laws or site plan approvals necessary for proceeding with the project. 2.4.6 Providing services relating to future facilities, systems and equipment which are not intended to be constructed during the construction phase. 2.4.7 Providing services to investigate existing conditions or facilities such as preparing measured drawings or verifying the accuracy of drawings or other information furnished by the Client. 2.4.8 Providing detailed estimates of Construction Costs, detailed quantity surveys, inventories of material and equipment, or life cycle cost studies. 2.4.9 Providing interior design, graphic design, signage and other similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment. 2.4.10 Providing tenant layout and design services. 2.4.11 Making revisions to or providing additional drawings, specifications or other documents when such revisions or additions are: (a) inconsistent with written approvals or instructions previously given, (b) required by the enactment or revisions of statutes, regulations, codes or by -laws, (c) due to the interpretation of the authorities having jurisdiction differing from the Architect's interpretation of statutes, regulations, codes and by -laws in such a way as the Architect cannot reasonably anticipate, or (d) due to other causes beyond the control of the Architect. 2.4.12 Preparing models or architectural renderings specifically commissioned by the Client. m Bidding or 2.4.13 Preparing documents of alternative, separate or sequential bids or rzt Negotiation providing extra services in connection with bidding, negotiation, or construction prior to the completion of the construction documents phase. Construction 2.4.14 Preparing drawings, specifications and supporting data and providing other services in connection with contemplated change orders or change orders to the extent that the adjustment in the fee for basic services resulting from the adjusted Construction Cost is not commensurate with �o the services required of the Architect, provided such change orders are .� required by causes not solely within the control of the Architect. 2.4.15 Providing co- ordination of work performed by separate contractors or by the Client's own forces or making investigations, surveys, valuations, or detailed appraisals of existing facilities. 2.4.16 Providing services in connection with the Work of a construction manager, or separate consultants retained by the Client. 2.4.17 Providing services made necessary by the default of the Contractor, or by major defects or deficiencies in the Work of the Contractor, or by failure of performance by either the Client or Contractor under the Contract. co 1 . Providing continuous representation at the site. 2.4.18 (a) If the Client and Architect agree that continuous representation at the site is required, the Architect shall provide one or more project representatives to assist the Architect in carrying out such responsibilities. (b) Such project representatives shall be selected, employed, and directed by the Architect. Preparing a set of reproducible record drawings showing significant 2.4.19 Post changes in the Work made during construction based on marked -up Construction prints, drawings, and other data furnished by the Contractor to the Architect. The Architect shall not be held responsible for the accuracy of the information provided by the Contractor. Providing services after expiry of the period of one year following the 2.4.20 date of Substantial Performance. Providing special assistance in the utilization of any equipment or system 2.4.21 such as initial start -up or testing, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance and consultation during operation. Providing consultation concerning replacement of any work damaged by 2.4.22 Other Services fire or other cause during construction and furnishing services as may be required in connection with the replacement of such work. Advising the Client and preparing to serve or serving as witness in 2.4.23 connection with any public hearing, arbitration proceeding, or legal proceeding. Providing or arranging for services of consultants for other than the 2.4.24 basic architectural, structural, mechanical and electrical engineering services. Providing translation to a language other than the language of this 2.4.25 agreement. ° Providing or arranging for any services not otherwise included in this 2.4.26 agreement. 00 0 0 0 • • 3 General Conditions Article 3.1 3.1.1 Plans, sketches, drawings, graphic representations and specifications as Copyright and instruments of service are and shall remain the property of the Architect Use of whether the project for which they are made is executed or not. The Documents Client shall be permitted to retain copies, including reproducible copies, of plans, sketches, drawings, graphic representations and specifications for information and reference in connection with the Client's use and occupancy of the project. Except for reference purposes, the plans, sketches, drawings, graphic representations and specifications shall not be used for additions or alterations to the project or on any other project. As a condition precedent to the use of the plans, sketches, drawings, graphic representations and specifications for the project, all fees and reimbursable expenses of the Architect are required to be paid in full. When models or architectural renderings are specifically commissioned by the Client, the Client shall be entitled to keep the original model or architectural rendering. 3.1.2 Submissions or distribution of the Architect's plans, sketches, drawings, graphic representations and specifications to meet official regulatory requirements or for other purposes in connection with the project is not to be construed as publication in derogation of the Architect's rights. Article 3.2 3.2.1 The Architect shall be entitled at his expense to sign the building by Authorship inscription or otherwise on a suitable and reasonably visible part of the permanent fabric of the building. 3.2.2 The Architect shall be entitled to include as part of the Contract Documents a provision whereby a sign identifying the Architect may be erected on the project site. • Article 3.3 3.3.1 All matters in dispute under this agreement may, with the concurrence of Arbitration both the Client and the Architect, be submitted to arbitration under the laws of the Place of the Work. 3.3.2 The parties to the agreement may jointly appoint a single arbitrator, or if they fail to agree on such arbitrator, shall each appoint one nominee to a board of arbitration. These nominees shall together agree upon a third person to act as chairman; the three persons so selected shall constitute °p the board of arbitration. 3.3.3 The award of the arbitrator or board of arbitration shall be final and binding upon the parties. w Article 3.4 3.4.1 If the project is suspended or abandoned in whole or in part for more Project than a total of 60 days whether consecutive or not, the Architect shall be Suspension or compensated within 30 days of the date that an invoice is rendered for all Abandonment services performed together with reimbursable expenses then due and all termination expenses as defined in paragraph 3.5.5. If the project is resumed after being suspended or abandoned in whole or in part for more than a total of 60 days whether consecutive or not, the Architect's fee shall be equitably adjusted. 0 • • Unless otherwise stated in this agreement, the Architect's services 3.5.1 Article 3.5 terminate one year after certification of Substantial Performance. For Termination services required following expiry of the period of one year after certification of Substantial Performance, the Client shall arrange with the Architect for services as provided under paragraph 2.4.20. This agreement may be terminated by either party upon seven days' 3.5.2 written notice should the other party fail substantially to perform in accordance with its terms through no fault of the party initiating the termination. This agreement may be terminated by the Client upon at least seven 3.5.3 days' written notice to the Architect in the event that the project is permanently abandoned. In the event of termination, the Architect shall be compensated within 3.5.4 30 days of the date that an invoice is rendered for all services performed to termination date, together with reimbursable expenses then due and all termination expenses as defined in paragraph 3.5.5. Termination expenses include expenses directly attributable to suspen- 3.5.5 sion, abandonment or termination for which the Architect is not otherwise compensated, and in addition, an amount computed as a percentage of the total fee for basic and additional services earned to the time of termination, as follows: (a) twenty percent if suspension or termination occurs during the schematic design phase; or (b) ten percent if suspension or termination occurs during the design development phase; or (c) five percent if suspension or termination occurs during any subsequent phase. Unless otherwise specified, this agreement shall be governed by the law 3.6.1 Article 3.6 of the Place of the Work. Law Governing This Agreement The Client and the Architect, respectively bind themselves, their 3.7.1 Article 3.7 partners, successors, assigns and legal representatives to the other party Successors and to this agreement and to the partners, successors, assigns and legal Assigns representatives of such other party with respect to all covenants of this agreement. Except as otherwise provided herein, neither the Client nor the Architect shall assign, sublet, or transfer an interest in this agree- ment without the written consent of the other. This agreement represents the entire and integrated agreement between 3.8.1 Article 3.8 the Client and the Architect and supersedes all prior negotiations, Extent of representations, or agreements, either written or oral. This agreement Agreement may be amended only by written instrument signed by both Client and Architect. 0 • Article 3.9 3.9.1 In consideration of the premises and of provision of the services by the Liability of the Architect to the Client under this agreement, the Client agrees that any Architect and all claims which he has or hereafter may have against the Architect in any way arising out of or related to the Architect's duties and responsibilities pursuant to this agreement (hereinafter referred to in this Article 3.9 as "claims" or "claim "), whether such claims sound in contract or in tort, shall be limited to the amount of $250,000.00 each claim and $500,000.00 for all claims during each period of coverage as provided by the Architect's professional liability insurance or indemnity against errors and omissions in effect at the date of execution of this agreement, including the deductible portion thereof, and to the extent only that such insurance or indemnity is available to the Architect to satisfy such claims. 3.9.2 The Architect's policy for professional liability insurance or indemnity for errors and omissions is available for inspection by the Client at all times upon request. Prior to the date of execution of this agreement, if the Client wishes to increase the amount of the coverage of such policy or to obtain other special insurance coverage, then the Architect shall co- operate with the Client to obtain such increased or special insurance coverage at the Client's expense. 3.9.3 It is agreed that: (a) the Client will not assert a claim against the Architect unless the Client has asserted such a claim within any required time limitation against all persons who might reasonably be liable therefor and (b) any waiver by the Client with respect to a claim in favour of any of such persons shall constitute a waiver by the Client in favour of the Architect with respect to any claim against the Architect. In this paragraph, "waiver by the Client" includes any agreement by the Client to a limitation, exclusion or release whether in whole or in part of the liability of another to the Client but does not include a fair agreement of settlement. Qci 3.9.4 It is agreed that the Architect shall not be liable for damages, interest, costs or any other expenses arising out of the failure of any manufactured product or any manufactured or factory assembled system of components to perform in accordance with the manufacturer's specifications, advertising, product literature or written documentation on which the Architect relied in the preparation of the design, construction or supplementary documents. 3.9.5 It is agreed that the Architect shall not be liable for any claim, action or suit arising out of or in connection with the inappropriate use of the project by the Client, the owner, any tenant or their respective agents, employees or consultants. 3.9.6 The Architect's liability for all claims of the Client arising out of this agreement shall absolutely cease to exist after a period of six (6) years from the date of: (a) Substantial Performance of the Work, (b) suspension or abandonment of the project, (c) termination of the Architect's services in this agreement, or (d) commencement of the limitation period for claims prescribed by any statute of the province or territory of the Place of the Work. whichever shall first occur, and following the expiration of such period, the Client shall have no claim whatsoever against the Architect. The Architect's liability with respect to any claims arising out of this agreement shall be absolutely limited to direct damages arising out of the Architect's services rendered under this agreement, and the Architect shall bear no liability whatsoever for any consequential loss, injury or damage incurred by the Client, including but not limited to claims for loss of profits and loss of markets. • • Fees and Reimbursable Expenses 4 The Client shall pay fees and reimbursable expenses to the Architect 4.1 monthly when invoices are rendered as set forth in this article. The Client shall pay an initial amount of N/A dollars 4.2 Retainer (8 ) upon execution of this agreement. The payment shall be credited to the Client's account as follows: The fee for the Architect's basic services shall be computed as follows; 4.3 Fee for Basic (Here, insert basis of fees, including fixed amounts, multiples, or Services percentages, and identify phases to which particular fee calculations apply, if necessary.) Seventy — five Thousand ($75,000.00) plus G.S.T. The fee for the Architect's basic services when based on a stipulated sum 4.4 or a percentage of Construction Cost shall be apportioned to the phases of service as follows: (Include any additional phases as appropriate). Schematic Design Phase percent ( 121/2%) Design Development Phase percent ( 121/2%) Construction Documents Phase percent (50 %) Bidding or Negotiation Phase percent ( 5 %) Construction Phase — Contract Administration percent (20 %) When the fee for the Architect's basic services is based on a percentage of the Construction Cost, the basis for the apportioning of the applicable percentage of the fee for the phases of services stated above shall be calculated on the following: Schematic Design Phase: the mutually agreed Construction Budget at the commencement of the phase. Design Development Phase: the approved estimate of Construction Cost at the commencement of the phase. Construction Documents Phase: the approved estimate of Construction Cost at the commencement of the phase. Bidding or Negotiation Phase: the approved estimate of the Construction Cost at the commencement of the phase. Construction Phase — Contract Administration: the actual Construction Cost. When revisions or additions are made to the program of requirements or previously approved documents prepared by the Architect in any of the phases of services stated above and such revisions or additions require basic services beyond those already provided in this phase or any previous phase, the fee for such services shall be increased based on additional services or as otherwise mutually agreed for any of the applicable phases. Fee payments during any phase of the Architect's services shall be in 4.5 ° proportion to the services performed within that phase. For the Architect's basic services relative to the portions of the project that are designed but then deleted or otherwise not built, the fee shall be in proportion to the extent of such services in accordance with paragraph 4.4 and shall be based on the lowest bona fide bid or negotiated proposal or, if no such bid or negotiated proposal is received, the most recent estimate of Construction Cost approved by the Client. • Fees for 4.6 Fees for the Architect's additional services, excluding those provided by Additional the Architect's consultants, shall be computed as follows: Services (Here, insert basis of fees, including rates and /or multiples of direct personnel expenses for officers, directors, partners, principals and employees, and identify officers, directors, partners, principals, and classify employees, if required. Identify specific services to which particular fee calculations apply, if necessary.) Principal $150.00/hr. Senior Architect $100.00 /hr. Intermediate Architect $ 75.00 /hr. Secretarial $ 40.00 /hr. 4.7 Fees for additional services provided by the Architect's consultants shall m be as invoiced by the consultant according to the hourly fee rates or multiples of direct personnel expense set out below plus 25 of the consultants' invoiced amounts. (Identify specific types of consultants in Article 5, if required.) Direct Personnel 4.8 Direct personnel expense means the salary of the Architect's or the j Expense consultants' personnel engaged on the project plus the Architect's or the consultants' portions of the cost of mandatory and customary contributions and benefits related thereto which include employment taxes and other statutory benefits, insurance, sick leave, holidays, vacations, pensions, and similar contributions and benefits. Reimbursable 4.9 Reimbursable expenses are the actual expenditures of the Architect, Expenses employees, and the consultants in the interest of the project plus % of such actual expenditures. They include expenditures for the following: N/A (a) travel, e.g., for transportation, lodging and meals, with car expense computed at N/A per kilometer; N/A (b) communication and shipping, e.g., for long distance telephone calls, telegrams, telex, courier service, postage and electronic conveyances; N/A (c) reproduction of plans, sketches, drawings, graphic representations, specifications and other documents, excluding reproductions for the Architect's and the consultants' office use; (d) preparation of renderings, models, and mock -ups requested by the Client; 1 (e) fees, levies, duties or taxes for permits, licences or approvals from authorities having jurisdiction; (f) data processing and photographic services relative to additional services of the Architect; (g) overtime work authorized in advance by the Client to the extent that the cost of such work exceeds normal direct personnel expenses; N /A(h) insurance requested by the Client in excess of that normally carried by the Architect and the consultants. ti • • Unpaid accounts shall bear interest at 2% per annum above the Prime 4.10 Interest Rate 30 days after the date that the invoice for fees and reimbursable expenses has been rendered by the Architect. (Federal and Provincial statutes and regulations at the Client's and Architect's principal places of business, the location of the project and elsewhere may affect the validity of this provision. Specific legal advice should be obtained with respect to deletion, modification, or other requirements such as written disclosures or waivers.) No deductions shall be made from amounts payable to the Architect on 4.11 Deductions account of penalty, liquidated damages, or other sums withheld from payments to Contractors, or on account of the cost of changes in the Work other than those for which the Architect is proven to be legally responsible. If the scope of the project or of the Architect's services is changed 4.12 Changes and materially the fees shall be equitably adjusted. Adjustments If and to the extent that the contract time initially established in the 4.13 Contract for construction is exceeded or extended through no fault of the Architect, fees for any basic services required for such extended period of the contract administration shall be computed as set forth in paragraphs 4.6 and 4.7 for additional services. If the Architect's services for the schematic design phase, the design 4.14 development phase, and the construction documents phase have not been completed within 12 months after the date of this agreement, or for the remaining phases within 24 months after the date of this agreement, through no fault of the Architect, the amounts, rates, and multiples set forth in this article applicable to the respective phases of service shall be subject to review and adjustment. Hourly rates of fees in paragraphs 4.6 and 4.7 are subject to review and 4.15 adjustment annually or as follows: 0o (Here, insert effective dates or time periods for periodic adjustments in hourly rates or multiples, along with any limitations.) 00 0 w v The fees and reimbursable expenses are subject to adjustment in the 4.16 event of the imposition of new or additional taxes in respect of the services included in this Agreement. The Architect shall maintain, by generally accepted accounting methods, 4.17 Accounting records of reimbursable expenses, expenditures pertaining to the Records Architect's additional services and services for which the fee is computed as a multiple of direct personnel expense. These records shall be available to the Client at mutually convenient times. 5 Other Conditions of Services 01 v4 01 v This agreement entered into as of the day and year first above written. Q Client The Corporation of The Town of Kincardine by Witness Architect omas E. B•• chitect Inc. arialli MiLtaAAdia -III' ,Pk by � / /,� Witness l � �i,J, �/'� "" • 1989 Edition I I I Guide to Canadian Standard Form of Agreement Between Client and Architect • J I 1989 Edition Background Relation to Construction Contract This Guide is intended to assist both Client and Architect in Consistency between the Client- Architect agreement and the completing the form and also to provide a better understand- Construction Contract is essential. This agreement is written ing of some of the more important parts of the document. to be used with CCDC documents for Stipulated Price Questions and suggestions are welcomed by the local pro- Contract or Cost Plus Contract. Paragraphs 2.1.15 to 2.1.25 of vincial architects' associations. this agreement are very closely related to CCDC documents This 1989 edition of the Canadian Standard Form of and numerous other parts of the agreement are worded Agreement Between Client and Architect is a revision of the assuming the use of the CCDC documents. If the CCDC 1984 edition with changes in content based on experience documents are to be significantly amended, or if another with the previous edition, recognition of Clients' concerns form of construction contract is to be used (or if another form and the recommendations of members and committees of the of Client- Architect agreement is to be used), legal advice provincial architects' associations. should be obtained. Where the use of this agreement is not practical or where the project is of limited scope, an Abbreviated Form of Basic and Additional Services Agreement between Client and Architect should be used. The Architect's basic services are defined in Article 2.1 of the agreement and are those for which: the Client and Architect Modifications have agreed are necessary for the implementation of the pro - Generally, modifications can be accomplished by striking out ject; the degree of the Architect's involvement with regard to portions which are inapplicable and inserting any revised or input and time can be estimated; and the fee arrangements additional provisions under Article 5. The use of legal assis- have been agreed. tance in doing this is encouraged. The Architect's additional services are defined in Article 2.4 of the agreement and are those for which the degree of involvement by the Architect with regard to input and time cannot be clearly defined or estimated or the need for which is not determined at time of signing the agreement. Fees for ' additional services are frequently invoiced on the basis of agreed hourly rates. • • Authorities Having Jurisdiction Information, Surveys, Reports and Services The Architect as part of basic services reviews all statutes, When the Architect makes arrangements on behalf of the regulations, codes and by -laws applicable to the design of the Client for the provision of information, surveys, reports and project; where necessary reviews the same with the services by others as described in paragraph 2.3.3, he should authorities having jursidiction; and incorporates the required do so in co- ordination with the Client and by written information pertaining to the construction in his documents instruction outling the extent of services, the parties to the so that the required consents, approvals, licences and permits agreement, the invoicing procedure and the position of the necessary for the project can be obtained. However, the Architect as an agent for the Client. Client shall acknowledge that as the project progresses the interpretation of the authorities having jurisdiction of such Person to Act for the Client statutes, regulations, codes and by -laws may change and differ The agreement requires the Client, whether an individual or from the Architect's interpretation in such way as the an organization, to authorize a person to act on his behalf Architect cannot reasonably anticipate, and the provision of when necessary and to state the extent of the authorization in such services shall constitute additional services as defined writing. The Architect, and ultimately the Contractor, needs under Article 2.4.11. to rely on such a person to render decisions on behalf of the It is the Client's responsibility to obtain the necessary con- Client or, when decisions are outside his authority, to obtain sents, approvals, licences and permits and alternatively, the such decisions from the organization so that the orderly Client may request the Architect's assistance as an additional progress of the Architect's services and of the Work can be service: maintained. As this area of the Architect's services in relationship to the Client's responsibilities can sometimes be difficult to Client's Budget Contingencies define clearly, it is recommended that a thorough review of In their review of the budget (see paragraphs 2.1.3, 2.1.8, the Architect's services and Client's responsibilities be carried 2.1.11, and 2.2.1) the Architect and Client should make cer- out to clarify the obligations of both parties. tain that it includes reasonable contingencies for bidding, in Even though all of the requirements of the authorities case the lowest acceptable bid is higher than the Architect's having jurisdiction have been complied with in the estimate; for changes in the Work, because they are Architect's documents, the Architect cannot guarantee the unpredictable and to a degree inevitable; and for other costs issuance or the time involved to obtain such consents, as indicated in Article 2.3, since the need for some of these approvals, licences or permits. (such as special inspection and testing) is not only unpredict- able, but may not become known until the project is under General Review and Certification construction. General review of the Work, certification for payments, and other services during construction are areas of the Architect's Estimates of Construction Cost services in which many of the most serious legal difficulties Great care should be exercised not only in the preparation of have occurred; therefore, it is in the interest of both Client estimates of Construction Cost but also in all communications and Architect that the substance of these clauses in particular about estimates. The term "estimates of Construction Cost" should be clearly understood and respected. is used in this agreement because inevitably it is the term that It is especially important that the Architect should provide will be used in discussion with the Client. It must be sufficient general review so that he can responsibly certify remembered, however, that to many people the word payments and performance. The Architect who does not have "estimate" means "quotation ". Paragraph 2.2.1 makes it clear the mandate to provide such services should obtain legal that the "estimate of Construction Cost" is not a quotation advice about certifying payments and performance and and Architects should make certain that their Clients should caution his Client. Article 2.1.16 defines "general understand the term correctly. review ". In instances when the Architect elects to specifically The professional liability insurers have pointed out that define the number of site visits, the following first paragraph when the Architect reviews the Client's budget and provides may be substituted in this Article: - the Client with estimates of Construction Cost, he is exposed to liability which may not be covered by insurance. 2.1.16 "The Architect shall carry out the general review of the Work at intervals appropriate to the stage of construction in accordance with the schedule of site visits hereto attached. It is agreed that the Architect shall not be required, unless specifically requested by the Client, to carry out site visits at intervals other than those set out in the schedule of site visits. However, the Architect shall keep the Client informed of the progress and quality of the Work and shall report to the Client any defects or defi- ciencies in the Work observed during the course of the site review." , 1 I IF • Fixed Budget Limit limited partnership or corporation (general, close, or profes- The agreement does not include a condition in Article 2.2 for sional), etc. Where appropriate, a copy of the resolution a fixed limit of Construction Cost. The establishment of such authorizing the individual to act on behalf of the firm or a limit is felt to be unsatisfactory for most projects as it tends entity should be attached. to invite unrealistic expectations by the Client and may expose the Architect to unreasonable risks. If the agreement Article 4: Fees and Reimbursable Expenses is amended requiring the Architect to keep the Construction Cost within a fixed limit, i.e., with no budget flexibility to Paragraph 4.2 Retainer allow for cost increases, the agreement shall: Insert the amount of the retainer, if any, and indicate (a) require the Client to include contingency amounts in his whether it will be credited to the first, the last, or proportion - Construction Budget in order to accommodate design ately to all of the payments on the Client's account. changes, price escalation before bidding, and cost increases during construction; and Paragraph 4.3 Fee for Basic Services (b) permit the Architect to determine what materials, equip- If the Fee is to be: ment, component systems, and types of construction are to be included in the Contract Documents, to make rea- (a) Multiple of Direct Personnel Expense sonable adjustments in the scope of the project, and to Insert: "Fees for services rendered by principals and em- include alternative prices in the bidding documents to ployees shall be based on a multiple of direct personnel adjust the Construction Cost to the fixed amount. expense in the same manner as described in paragraph 4.6 and for the services of the Architect's consultants as Termination Expenses described in paragraph 4.7." The agreement provides in Article 3.5 that in the event of suspension, abandonment, or termination the Client will pay (b) Professional Fee Plus Expenses the Architect: Insert: "Fees shall be based on a professional fee of (a) fees for services performed to the date of suspension, dollars ($ ) plus fees for services abandonment, or termination; rendered by principals and employees in the same man - (b) reimbursable expenses then due; ner as described in paragraph 4.6, and for the services of (c) expenses directly attributable to suspension, abandon- the Architect's consultants as described in paragraph ment, or termination for which the Architect is not other- 4.7." wise compensated (which includes the Architect's cost of terminating his own legal and contractual commitments (c) Fixed Fee relating to the project); and Insert: "Fees shall be a fixed fee of dollars (d) an additional amount which represents compensation ($ )." for loss of anticipated fees, the amount to be calculated as a percentage of the fee for basic services earned to the (d) Percentage of Construction Cost date of termination. Insert: "Fees shall be based on one of the following per- centages of Construction Cost, as defined in paragraph The Law Governing the Agreement 1.3. The agreement states that the law of the Place of the Work governs the agreement. It may be necessary to modify this if For portions of the project to be awarded under: the project named in the agreement involves construction A single, stipulated sum construction contract: work at more than one location. percent ( %) Separate, stipulated sum construction contracts: Completing the Agreement Form percent ( %) A single, cost -plus construction contract: Cover Page percent ( %) Date: The date represents the first date as of which the Separate, cost -plus construction contracts: agreement is entered into. It may be the date that an oral percent ( %) agreement was reached, the date the agreement was submitted to the Client, the date authorizing action was taken Paragraph 4.4 by the Client, or the date of actual execution. No professional If applicable, insert the percentages of the fees payable for services under this agreement should be performed prior to each separate phase of services. the date indicated. For example: Identification of Parties: Parties to this agreement should be identified in the capacity in which the agreement is to be Schematic Design Phase: twelve and a half percent (12 1/2x) executed, including the name of the firms and capacity of Design Development Phase: twelve and a half percent (121%) Construction Documents Phase: fifty percent (50%) persons signing, the address of the principal office and a Bidding or Negotiation Phase: five percent (57c) designation of the legal status of both parties: sole proprietor- Construction Phase — Contract Administration: twenty percent (20%) ship, partnership, joint venture, unincorporated association, Total one hundred percent (100%) • Paragraph 4.6 Fees for Additional Services Here insert the following types of provisions: If billing rates are used, insert: Additional phases, such as predesign, site analysis or post - "1. Principals' time at the fixed rate of dollars construction, and the services provided in each; ($ ) per hour. For the purposes of this agreement, Identification of additional services, if any, included under the Principals are: (list principals) the fee for basic services; 2. Supervisory time at the fixed rate of dollars Other additional services, and any special fee arrange- ($ ) per hour. For the purposes of this agreement, ments for them; supervisory personnel include: (describe supervisory Description of consultants, if any, provided under the fee personnel by job title, such as Project Architect) for basic services; 3. Technical personnel time at the fixed rate of Preparation of multiple sets of construction documents for dollars ($ ) per hour. For the purposes of this separate contracts; agreement, Technical Level I personnel include: (describe Procedure for award of Construction Contract (i.e., by job title, such as Senior Designer, Specifier, etc.)." bidding or negotiation); Construction delivery process (single or separate con - If a multiple of direct personnel expense is used, insert: tracts, stipulated sum or cost -plus contracts); "Principals' and employees' time at a multiple of Fixed limit of Construction Cost; ( ) times their direct personnel expense as defined in Fixed Time of performance; paragraph 4.6." Modifications to any services or conditions; Modification to insurance coverage; If a multiple of direct salaries is used, the term "direct Other additional conditions; salaries" should be substituted for direct personnel expense Note that any changes in the duties of the Architect during above, and this term should be defined. the construction phase — contract administration must be considered with extreme care and correlated with the terms Paragraph 4.7 of the general conditions of the Construction Contract. Insert the multiplier applied to consultant billing used to cover the costs of administration and co- ordination, respon- Execution of the Agreement sibility for consultants' work, and profit. In executing the Agreement, the parties should indicate the capacity in which they are acting. Paragraph 4.9 Reimbursable Expenses Insert the multiplier, if any, applied to reimbursable expenses used to cover the costs of administration. Insert the car expense amount in (a). Paragraph 4.14 Insert the amount of time after which the fees shall be subject to renegotiation or adjustment. If the firm requires periodic adjustments in hourly rates and multiples, this should be stated, along with any limitations on the amount of upward adjustment which may be made in paragraph 4.15.