ANNEX A Standard Special Conditions For The Salvation Army

Transcription

1 ANNEX A Standard Special Conditions For The Salvation Army TO BE ATTACHED TO AIA B EDITION ABBREVIATED STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ARCHITECT 1. Contract Documents. This Annex supplements, amends, voids and supersedes various parts of this Agreement. Should any conflicts arise or exist between the terms of the standard AIA B Edition Agreement and this Annex A, the terms of this Annex A shall prevail. The Agreement between the parties consists of the Standard Form of the Agreement Between Owner and Architect, including any modification(s) thereto and all documents incorporated therein and this Annex A. 2. Incorporation of this Annex into Agreement. Article 12 of the AIA B Edition Standard Form of the Agreement Between Owner and Architect is hereby amended to provide that the Salvation Army Annex A, Standard Special Conditions shall be part of the Agreement. 3. Owner Identification. The Owner is the Salvation Army, A Georgia Corporation. The official representative of the Owner is the Territorial Property Council located in Atlanta, Georgia. The Territorial Property Council is the only representative authorized to commission work, approve documents, make decisions, issue directions or act in an official capacity on behalf of the Owner. All other officers, employees and local representatives of the Owner are limited to administrative duties. 4. Required Written Authorization for Work. Written authorization by the Territorial Property Council must be received before the Architect begins the schematic design phase and before the Architect proceeds from one design phase to the next. 5. Standard of Care. Architect s services under this Agreement shall be performed in conformance with the standards of care and quality practiced by design professionals experienced with projects similar to the Project for which this Agreement is entered into. Any designs, drawings or specifications prepared or furnished by the Architect which contain errors, conflicts or omissions shall be promptly corrected by the Architect at no additional cost to Owner. Owner s approval, acceptance or use of or payment for all or any part of Architect s services shall in no way alter Architect s obligations or Owner s rights hereunder. 6. Quality of Documents. Architect agrees that all Drawings and Specifications and other documents prepared by Architect for the Project which are utilized by Owner and/or Owner s contractor or contractors, shall be reasonably accurate and complete as is customary for typical construction documents. Architect shall notify Owner in a prompt and timely manner of any discovered discrepancies, inconsistencies or missing information necessary to provide reasonably accurate and complete documents. Failure to so notify the Owner will be considered a breach of the standard of professional practice set forth in Paragraph 5 of this Annex A. 7. Coordination Responsibilities. Architect shall be fully responsible for coordinating all Architect s Basic and Additional Services required under this Agreement regardless of whether performed by its own employees or by consultants or engineers hired by Architect to perform a portion of its services. The purpose of such coordination is to ensure that the services required Page 1 of 8 Revised 10/2008

2 are performed in a reasonably efficient, timely and economical manner. Architect shall engage state approved civil, structural, mechanical, and electrical engineers to provide engineering services necessary for the design of the Project. Architect may use for this purpose his/her own employees who are State approved engineers in the respective engineering disciplines. Architect shall be responsible to Owner for the services furnished to Architect by any of its consultants and engineers to the same extent as if Architect had furnished the service itself, including, but not limited to, all designs and all work approved, certified or accepted by Architect s engineers or consultants. Architect also agrees to coordinate its work with the work of its consultants and engineers and to resolve any inconsistencies that may arise between its work and the work of its consultants and engineers. All of Architect s contracts with its consultants and engineers shall be in writing, signed by both parties, and shall include the following provision: The Owner is an intended third party beneficiary of this agreement. 8. Schedule for Performance of Phases. The Architect shall perform Basic Services for each phase of design in the number of days specified below. The time commences upon Architect s receipt of written authorization to proceed from the Owner at each respective phase. The schedule does not include the time required for the Owner s review and approval of submissions and for required approvals by the various authorities having jurisdiction over the Project. Schematic Design ( ) Days Design Development ( ) Days Construction Documents ( ) Days 9. Fixed Limit of Design and Construction Cost. A fixed limit of Design and Construction Cost is hereby established in the amount of $ Dollars ($ ) without contingency. Architect agrees that this fixed limit of Design and Construction Cost is a condition of this Agreement and is a limitation imposed upon Architect. 10. Required Compliance with Applicable Laws and Codes. Architect shall provide a design which, when constructed in accordance with the Contract Documents, will comply with all applicable federal, state and local laws, statutes, ordinances, rules, regulations, orders and other legal requirements, including, but not limited to, all zoning restrictions or requirements of record, building Codes, occupancy requirements, environmental regulations, regulations and requirements regarding disabled persons accessibility, land use laws and all requirements, regulations and ordinances relating to the construction, use and occupancy of the Project existing on the date of this Agreement and which may be enacted prior to Owner s approval of the completed Contract Documents. Architect shall use its best efforts to avoid incorporating into the Project design elements that would give rise to Code interpretation questions and agrees to notify the Owner of any such elements and discuss them with the Owner prior to inclusion into the Project design. 11. Signatures and Seals on Construction Documents [Instruments of Service]. All Construction Documents [Instruments of Service], including, but not limited to, Specifications and Drawings, shall bear the signatures and seals of the Architect and each and every engineering discipline for their respective work in accordance with the applicable licensing laws in the jurisdiction of the project. Page 2 of 8 Revised 10/2008

3 12. Provision of Documents at Each Phase of Design. Architect shall furnish to Owner, without additional cost, five (5) sets of the documents at each phase of design. Should Owner need or desire additional copies of the documents, Architect shall furnish such additional documents as requested by Owner and Owner shall compensate Architect for the actual cost of printing the additional copies of the documents. Each phase of design shall include information as listed in The Salvation Army s Southern Territory Facilities Design and Construction Manual. 13. Compliance with Lender Requirements. To the extent applicable, Owner may have to comply with Lender requirements and the parties acknowledge that Owner s approvals and other actions regarding Architect s services may be affected by Lender requirements. Architect shall comply with all reasonable requests by Owner or the Lender for reports, certificates, statements and further services which are not inconsistent with the terms and conditions of this Agreement. In the event any such request requires Architect to provide services not already part of the scope of services hereunder, however, Architect shall be entitled to compensation as an Additional Service. 14. Site Surveys and Legal Information. Articles 5.4 and 5.5 are amended to provide that while Owner shall furnish a legal description of the project site, Architect shall be required to obtain all other services described in the above articles including, without limitation, a complete and accurate survey, and geo-technical services. Architect shall provide Owner with copies of all surveys, test results and interpretive analyses of any such test results. Owner must approve the fees for these services in writing before the services are rendered and the fees shall be paid directly by Architect and reimbursed by Owner. 15. Required Tests and Inspections. Article 5.7 is amended to provide that Architect shall secure all tests and inspections required by law or Contract Documents including structural, mechanical, and chemical tests, air and water pollution, and tests for hazardous materials. Architect shall provide copies of the test results to the Owner along with an interpretive analysis of those results. Fees for such tests and inspections shall be paid directly by Architect and reimbursed by Owner. 16. Hazardous Materials. Architect shall not design, specify or incorporate any Hazardous Materials into the Drawings or Specifications for the Project and shall not approve any shop drawings specifying any Hazardous Materials so as avoid (1) violating the requirements of any existing laws, ordinances, Codes, rules, regulations, orders and decisions of all governmental authorities having jurisdiction over the Site, the Work or any part of either or (2) causing substantial damage or risk of substantial damage to the environment or (3) leaving any residue which could be hazardous to persons or property or cause liability to Owner. For purposes of this Agreement, the term Hazardous Materials shall include, but not be limited to, substances currently defined as hazardous substances or toxic substances in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 USC 9061, et. seq., the Hazardous Materials Transportation Act, 49 USC 1802, the Resource Conservation and Recovery Act, 42 USC 6910, et. seq. and all other environmental laws, rules and regulations, as these laws may be amended from time to time. 17. Progress Payments. Article of this Agreement regarding initial payment to the Architect is deleted in its entirety. Owner shall promptly review Architect s Application for Payment upon its receipt. If Owner, in good faith, disputes all or any portion of an Application for Payment, Owner shall notify Architect of its dispute within fifteen (15) days of its receipt of the Application. Such notification shall clearly identify that portion of the Application for Payment which Owner disputes or for which Owner claims a setoff and shall include a reasonably detailed explanation of the reasons for disputing the item(s) or for the setoff. Any Application for Page 3 of 8 Revised 10/2008

4 Payment that is not disputed by Owner in the manner and within the time period set forth herein shall be paid by Owner within thirty (30) days of receipt. Article is amended to allow the Owner thirty (30) days to make payment on properly submitted and correct applications for payment. The provision in Article providing for the accrual of interest is deleted. The Owner shall make every effort to achieve timely payments as agreed upon. Any payment made by Owner shall not act as Owner s waiver of any claims that may be asserted against Architect for the performance of defective or deficient services. Owner shall not be required to make payment to Architect for any amount disputed in good faith by Owner in the manner and within the time period set forth herein until the matter in dispute has been resolved by the parties. Any amount so disputed shall not be deemed to be an amount due Architect under this Agreement until the matter is resolved by the parties. If the parties ultimately resolve that the Architect is owed all or some portion of the previously disputed amount, then such amount shall be paid to Architect within ten (10) days after the resolution of the matter. 18. No Payment for Travel. Unless otherwise agreed to by Owner, there shall be no charge for time spent in travel. 19. Prior Written Approval Required for Additional Services. Architect shall not perform or be reimbursed for any Additional Services unless Owner expressly authorizes the performance of the Additional Services in writing prior to Architect commencing the performance of those Additional Services. Owner agrees to put any such authorization in writing in a timely manner. 20. Duty to Notify. Architect shall promptly notify Owner of any problems which come to his/her attention that may cause a delay in the completion of the Project or any portion thereof, or in the performance of Architect s services. Architect acknowledges that time is of the essence in this Agreement. 21. Indemnification. Architect shall protect, defend, indemnify and hold harmless Owner from and against any claims, actions, demands, losses, damages, costs and expenses, including, but not limited to attorney s and consultant s fees, in the event that a claim or mechanic s lien is asserted by one of Architect s consultants or engineers for non-payment by Architect to that consultant or engineer after Owner has made payment to Architect on account of that consultant s or engineer s work. To the fullest extent permitted by law, Architect shall indemnify and hold Owner harmless from and against all claims, actions, demands, damages, losses, costs and expenses, including, but not limited to, injury to or death of any persons, damage to property, economic and consequential damages and attorney s and consultant s fees, asserted by third parties against Owner arising out of negligent acts, errors or omissions or breach of the obligations set forth in this Agreement by Architect, any consultant or engineer of Architect, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. However, Architect shall not be required to indemnify Owner from the consequences of Owner s own negligence. Paragraph of AIA B101 is hereby deleted. 22. Owner s Review and Approval of Documents. Notwithstanding anything to the contrary contained in the Agreement, Owner s review and approval of any and all documents or other matters required in and under the Agreement shall be for the purpose of providing Architect with information as to Owner s objectives and goals with respect to the Project and not for the purpose of determining the accuracy and completeness of such documents. In no way will Owner s review and approval alter Architect s responsibilities under this Agreement with respect to such documents. Owner assumes no responsibility whatsoever for the architectural or engineering design of the Project. Page 4 of 8 Revised 10/2008

5 23. Records Available for Review. Records which provide the basis for Architect s compensation and Reimbursable Expenses relating to the Project and records of accounts between Architect and Owner shall be maintained on a generally recognized accounting basis. Upon the request of Owner, Architect shall make those records available for audit by Owner or its authorized representative during normal business hours at Architect s principal place of business for a period of one (1) year following completion and final acceptance of the Project. 24. Ownership of Drawings, Specifications & Contract Documents. The Schematic Design shall be the property of the Owner and may be used for publication in the Owner s manuals and public relations documents or other similar uses as required by the Owner. Such use shall be without any additional compensation to the Architect. Owner is granted an irrevocable license to use the Drawings, Specifications and other documents prepared by Architect and/or its consultants and engineers, for this Project and for future work at the property which is the site of the Project, including, but not limited to, subsequent remedial work on the Project. Architect shall not use or allow to be used the Drawings, Specifications and reports or the unique design aspects of this Project for any other project, without the express written consent of Owner. Architect may re-use standard specification texts and details. Owner agrees that no documents shall be used for other purposes for other projects without the written consent of and/or compensation to the Architect. 25. Determination of Substantial and Final Completion. Owner shall determine the date of Substantial Completion, after consultation with Architect. Architect shall determine the date of Final Completion. 26. As-Built Documents. At the completion of the Project, Architect shall, without cost to the Owner, furnish and deliver to Owner two (2) complete sets of Record, As Built Construction Documents, one in hard copy and the other in electronic form, showing actual locations of all utilities and altered to conform to all changes made in the project during its construction as well as one (1) bound set of Specifications complete with all Addenda and Change Orders. 27. Insurance. Architect shall procure and maintain in effect during the term of this Agreement and through final completion and acceptance of the Project and shall provide Owner with certificates reflecting the insurance coverages described below, which insurance shall be placed with insurance companies authorized to do business in the State in which the project is located and rated A minus or better by the current edition of Best s Key Rating Guide or otherwise approved by Owner: a. Professional Liability Errors and Omissions Insurance, including contractual liability coverage with limits of not less than $1,000, aggregate. Architect shall maintain this coverage in effect during the term of this Agreement and for two (2) years after the Date of Substantial Completion. Upon Owner s request, Architect shall give prompt written notice to Owner of any and all claims made against this policy during the period in which this policy is required to be maintained pursuant to this Agreement; and b. Worker s Compensation Insurance with statutory benefits and limits which shall fully comply with all State and Federal requirements and provide Broad Form All States and Voluntary Compensation Endorsements and have limits not less than $500, per accident, $500, per disease and $500, policy limit on disease; and c. Comprehensive Automobile Liability Insurance with limits not less than $1,000, combined single limit per occurrence for bodily injury and property damage, naming Owner as an additional insured; and Page 5 of 8 Revised 10/2008

6 d. Commercial General Liability Insurance. A broad form Commercial General Liability Insurance Policy, naming Owner as an additional insured, including, without limitation, a waiver of subrogation endorsement in favor of the additional insured and appropriate endorsements adding the following coverages: Premises and Operations Liability; Explosion, Collapse and Underground Damage Liability; Personal Injury Liability (with employee and contractual exclusions deleted); Broad Form Property Damage Liability; Broad Form Contractual Liability supporting Architect s indemnification agreements in favor of the additional insured; Independent Contractor s Protective Liability; and Completed Operations and Products Liability. The policy shall remain in effect for a period of not less than two (2) years following the date of final payment for all services provided under this Agreement. The Commercial General Liability Insurance Policy must be written with a combined single limit of liability of not less than $1,000, for each occurrence of bodily injury and/or property damage and an annual aggregate of liability of not less than $1, for bodily injury and /or property damage and an annual aggregate of liability of not less than $1,000, for Completed Operations and Products Liability. 28. Additional Insurance Requirements. Architect shall not make changes in or allow the required insurance coverages to lapse without Owner s prior written approval thereto. All policies for insurance must be endorsed to contain a provision giving Owner thirty (30) day prior written notice by certified mail of any cancellation of any policy or any material change in coverage. Should a notice of cancellation be issued for non-payment of a premium or any part thereof, or should Architect fail to provide and maintain certificates as set forth herein, Owner shall have the right, but not the obligation, to pay such premium to the insurance company or to obtain such coverage and to deduct such payment from any sums that may be due or become due to Architect, or to seek reimbursement for said payments from Architect. Any sums paid by Owner shall be due and payable immediately by Architect upon notice from Owner. Receipt and review by Owner of any copies of insurance policies or insurance certificates shall not relieve Architect of its obligation to comply with the insurance provisions of this Agreement. The insurance provisions of this Agreement shall not be construed as a limitation on Architect s responsibilities and liabilities pursuant to the terms and conditions of this Agreement. 29. Consultant s and Engineer s Insurance. Architect shall require any consultants and engineers with which it works on this Project to comply with the insurance requirements of Architect under this Agreement unless Architect and Owner mutually agree to modify these requirements for consultants or engineers whose work is of a relatively small scope. Architect shall contractually obligate its consultants and engineers to advise Architect promptly of any changes or lapses of the requisite insurance coverages and Architect shall promptly advise Owner of any such notices it receives from its consultants or engineers. Architect shall contractually obligate its consultants and engineers to indemnify and hold Owner harmless from any and all claims for non-payment from the consultant s and engineer s employees, subcontractors, suppliers or consultants to the same extent that Architect is required to do so as provided in this Agreement. Architect assumes all responsibility for monitoring its consultant s and engineer s contracts and insurance certificates for compliance with the insurance and other provisions of this Agreement until final completion and acceptance of the Project. 30. Suspension of Work. Upon written notice to Architect, Owner may order that Architect suspend all or any part of the services to be provided under this Agreement. In that event, and so long as the suspension is not due to a cause for which Architect is responsible, Owner shall pay Architect all monies otherwise due hereunder up to and including the date of the suspension. Owner shall not be liable for suspension/termination expenses. Owner shall not have any obligation to pay or Page 6 of 8 Revised 10/2008

7 reimburse Architect for lost profits and/or unabsorbed overhead or any other consequential or incidental damages. If the Project is suspended in whole or in part for more than three (3) months and then resumed, Architect shall be compensated for reasonable costs of re-familiarizing itself with the Project. 31. Termination for Convenience. Owner may terminate this Agreement for the convenience of Owner upon seven (7) days advance written notice to Architect, in which case Owner shall pay Architect for all monies otherwise due hereunder up to and including the date of termination. Owner shall not be liable for termination expenses. Owner shall not have any obligation to pay or reimburse Architect for lost profits and/or unabsorbed overhead or any other consequential or incidental damages. 32. Drawings Delivered Upon Termination. In the event of a suspension of work or termination for convenience, upon request of Owner and payment of all sums due pursuant to either Paragraph 30 or 31, Architect shall promptly deliver to Owner reproducible drawings and computer tapes, disks and/or flash drives of all documents completed or in progress on the date of the suspension or termination. Architect shall not be reimbursed for reproduction costs associated with maintaining or storing Drawings, Specifications or computer tapes, disks or flash drives for its own use. 33. Termination for Cause. In the event that the Architect fails to perform in accordance with the terms and conditions of this Agreement, or fails to make progress in his/her required services in a reasonable manner, or if the Architect s conduct impairs or prejudices the interests of Owner, Owner may terminate this Agreement by sending a written Notice of Termination which shall be effective seven (7) days after its date of transmittal if Architect does not cure such default within that seven (7) day period or does not within that seven (7) day period enter into an agreement with the Owner regarding how the default shall be cured and the time frame within that cure must be effected. Upon such termination, all Drawings, Specifications and Contract Documents relating to the design or administration of the Construction Contract shall be surrendered forthwith by Architect to Owner. Owner has the right, but not the obligation, to take over the work to be done hereunder and prosecute the same to completion by contract or otherwise. In the event of a termination for cause by Owner, Architect shall be entitled to be compensated for all services as shall have been satisfactorily performed by the Architect prior to receipt of the written Notice of Termination from Owner, together with Reimbursable Expenses incurred, up to the effective date of the termination. Owner shall not be liable for termination expenses. However, Owner shall be entitled to offset any amounts due and owing to Architect pursuant to this Paragraph against the amount of any and all damages incurred by Owner as a result of Architect s breach and if the damages incurred by Owner exceed any amounts due to Architect under the terms of this Agreement, Architect shall pay to Owner the damages incurred that exceeded any amount owed under this Agreement. Owner s right of offset, however, shall not prejudice the right of Owner to recover additional damages or to exercise any other remedy at law or in equity. In no event shall Architect be entitled to receive termination expenses, unabsorbed overhead or lost profit or any other incidental or consequential damages if terminated for cause. If Architect disagrees with Owner s termination, the issue shall be resolved pursuant to the dispute resolution process detailed herein. If Owner terminates this Agreement for cause and the termination is later found or agreed to have been improper, then the termination will be construed as a termination for convenience pursuant to Paragraph 31 above. 34. Dispute Resolution. All claims, disputes and other matters in question between the parties to this Agreement arising out of or relating to this Agreement or the breach thereof or the Project shall be initially submitted to mediation. The party asserting the dispute must serve written Page 7 of 8 Revised 10/2008

8 notice of the dispute upon the other party within the time limits set in this Agreement and if there are no time limitations set in the Agreement for that notice, within ten (10) days of the event giving rise to the dispute. Within fifteen (15) days of receipt of that written notice of dispute, the parties will jointly select a single mediator to resolve the dispute. Within thirty (30) days of the receipt of written confirmation from the mediator that he/she can mediate the dispute, the parties shall exchange all documents relevant to the dispute. The mediation will be conducted and concluded within the next sixty (60) days. The mediation shall be conducted in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect at the time of the mediation although the dispute shall be mediated by a private mediator, not the American Arbitration Association. The parties shall share the mediator s fee equally. The mediation shall be conducted in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached at mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. Any disputes that are not resolved by mediation shall be decided in a court of competent jurisdiction in the city, county and state where the project is located. The applicable statutes of limitation and repose for the state in which the project is located shall apply. 35. Continuing Obligations During Dispute Resolution. Architect shall continue to proceed diligently with the performance of its services under this Agreement pending resolution of any disputes between Owner and Architect, even if the disputes involve the determination of the scope of Basic Services to be performed by Architect or whether or not Architect is entitled to additional compensation for any work requested. During the pendency of the dispute resolution process, Owner agrees to pay Architect in accordance with this Agreement for all services rendered by Architect that are not the subject of the dispute being resolved. 36. Waivers. No consent or waiver by Owner or Architect shall be effective unless it is in writing and then only to the extent specifically stated therein. Failure on the part of any party to this Agreement to enforce any act or failure to act of the other party or to declare the other party in default hereunder, irrespective of how long such failure continues, shall not constitute a waiver of the rights of such party hereunder. 37. Choice of Law. The laws of the State of Georgia shall govern this Agreement and all disputes arising hereunder. 38. Dispute Resolution Jurisdiction. Any mediation regarding this Agreement and any disputes arising hereunder shall take place in the Metropolitan Atlanta area and any litigation regarding this Agreement and any disputes arising hereunder shall take place in the United States District Court for the Northern District of Georgia. Executed, this day of, ARCHITECT By: Title: THE SALVATION ARMY, a Georgia corporation By: Title: Page 8 of 8 Revised 10/2008