PROFESSIONAL SERVICES TERMS
Brian Allsopp Architect Ltd. (“BAA”)
The following terms form part of all contracts for services performed by BAA between BAA and the Client commencing June 1, 2015 unless other terms are agreed to in writing between BAA and the Client.
1) This Agreement supersedes all previous agreements, fee proposals, or understandings between the parties, whether written or verbal.
2) All provincial and federal sales taxes, where applicable, are additional to the fee. In the event the Client is exempt from provincial or federal sales taxes, BAA must be advised of this exemption and be provided with the exemption number prior to the commencement of work.
3) The fee is subject to the project being constructed in one construction phase efficiently by one contractor or construction manager in a reasonable schedule.
4) The party to the contract for services on the fee proposal is solely responsible for payment.
5) All invoices are due in full within 30 days from invoice date. Unless noted otherwise, invoices not paid in full within 60 days of invoice date shall constitute a material breach and BAA may withhold services and, at BAA’s sole discretion, terminate the contract without penalty.
6) Interest will be charged at 1.5% compounded monthly for an effective rate of 19.56% per annum, on all invoices not paid within 30 days.
7) In the event BAA commences legal action in order to recover any amount owing under this Agreement, the Client shall pay all costs including legal fees for both BAA and the Client.
8) No deductions shall be made from payments of Architectural fees, including any claims, set offs, lien holdbacks, deductions for delay or any costs claimed by the client.
9) Reimbursable expenses incurred by BAA shall be paid by the Client according to BAA’s fee proposal in effect at the time such disbursements are incurred. Expenses will be subject to a 10% administrative markup unless otherwise agreed in writing in the fee proposal.
10) If additional work is required due to circumstances beyond BAA’s control, or where the scope or other project requirements are changed by the Client or a third party or are not clearly articulated to BAA in a timely manner, then charges for such work will be additional to the fees in accordance with BAA’s schedule of per diem rates as outlined in the fee proposal. BAA may, at their option, provide a written fixed fee quotation for completing the extra work, or decline to provide the additional work. Additional work may include: a) Design revisions or new design necessary to meet scope changes in the Client program, or Client budget requirements or due to requirements of Local Authorities, or as requested by the Client for any reason after approval of the design. b) Extra site visits; at the rate indicated in the fee proposal. c) Preparation/provision of designs and drawings in REVIT or other Building Information Modelling systems; or other 3-d renderings, and d) Update of the original design, drawings or models, to as-built status utilizing contractor supplied mark-ups or record documents.
11) BAA maintains $2,000,000 (two million) dollars of Professional Errors and Omissions Liability insurance, and $5,000,000 (five million) dollars of non-owned auto insurance, and $5,000,000 (five million) dollars of Commercial General Liability insurance. Additional fees will apply should supplementary insurance coverage be requested by the Client.
12) BAA retains the intellectual property rights and copyright in all documents prepared by or on behalf of BAA. These documents shall not be used for any other purpose without the prior written consent of BAA. In the event BAA’s documents are subsequently reused or modified in any material respect by any party without the prior written consent of BAA, the Client agrees to defend, hold harmless and indemnify BAA from any claims advanced on account of said reuse or modification. The Client further agrees that if they, the contractor or any related party use the documents without the prior written consent of BAA, the Client shall pay to BAA the fair market value of the documents as if they were created from inception.
13) Shop drawings for all products utilized on the project and specified by BAA must be reviewed in writing by BAA. BAA will not accept responsibility for any products or construction methods not in accordance with BAA documents, and the Client agrees to defend, hold harmless and indemnify BAA from any claims advanced on account use of products or construction methods not reviewed by BAA.
14) Field reviews are required at various periods during construction and at project completion. BAA requires 3 business days’ notice from the Client, or their authorized representative, to provide such site visits. If BAA is asked to conduct a final site review and there are life safety deficiencies, then occupancy schedules, or similar documents, will not be provided and subsequent fees will apply for additional site visits. 15) In the event site visits are cancelled without reasonable notice, additional charges will apply, and may be identified on the invoice as an “Attempted Site Visit”.
16) The Client agrees to, and shall cause each of its subcontractors to, indemnify and hold harmless BAA from and against all liabilities relating to the project not achieving requirements of rating systems, including but not limited to, LEED ®, Built Green ™, or Green Globes ®.
17) BAA shall not be responsible for construction methods, techniques, procedures, sequences, safety precautions, safety programs; or any acts or omissions of any contractor, subcontractor, any of their agents or employees, or any other persons performing any work designed, or relating to the design done, by BAA.
18) BAA shall not be responsible for communicating or performing maintenance recommendations, of any systems, products and installations designed by BAA.
19) BAA reserves the right to discontinue services where BAA in its sole discretion, determine that a selected construction trade may not be appropriate for the project. All payments for work performed to date will be due upon notice of discontinuance. 20) The Client shall indemnify, defend, and hold harmless BAA from all losses, expenses, and claims, including third party claims, direct or indirect, or consequential damages, including but not limited to attorney’s fees and charges and court and arbitration costs arising out of, or claimed to arise out of, the performance of the services. It is further agreed that the total amount of all claims the Client may have against BAA, including but not limited to, claims for negligence, negligent misrepresentation and breach of contract shall be strictly limited to the lessor of: (a) the fees paid by the Client to BAA; or (b) a maximum of $100,000. No claim shall be brought against BAA more than two (2) years after the cause of action arose. As the Client’s sole and exclusive remedy under these terms, any claim, demand or suit shall be directed or asserted only against BAA and not against any of BAA’s employees, officers, or directors.
21) Notwithstanding anything in this Agreement, or any other contract agreed to between BAA and the Client, BAA shall not be liable for nor bound by any opinions or estimates, whether verbal or written, as to the cost of constructing, or executing, any work as described, specified or designed by BAA. BAA shall not be liable for estimates provided regarding the value of the actual work constructed and the costs to finish the uncompleted work, whether through certification of contractor progress claims or preparation of change notices.
22) The Client shall waive any conflict of interest BAA may have due to affiliations with contractors, subconsultants, or specialist consultants, testing agencies, firms or individuals involved in any manner in the project or other services provided directly to the client.
23) At the sole discretion and option of BAA, any disputes between the parties shall be resolved by arbitration pursuant to the laws of the Province of Alberta. Any arbitration shall be held in the City of Edmonton. The prevailing party in any dispute shall be entitled to recover their reasonable legal fees and other costs related to the dispute.
24) Fee proposals are valid for 30 calendar days, and the architectural design work must proceed, unhindered, within 90 calendar days of the date of acceptance of the Fee proposal.
25) This Agreement shall be governed by, construed and enforced in accordance with the laws of the Province of Alberta.
26) Failure by BAA to insist on the strict performance of any term of these professional service terms agreement or to exercise any right or remedy, contained in these terms shall not be construed as waiving or a relinquishing of that term, right or remedy.
END OF TERMS