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HomeMy WebLinkAbout97-273 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NUMBER 97-273 Being a By-law to authorize a contract between the Corporation of the Municipality of Clarington and Grenwitch General Contracting Inc., Concord, Ontario, for the construction of the Municipal Operations Centre. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington, and seal with the Corporation Seal, a Contract between Grenwitch General Contracting Inc. and said Corporation; and 2. THAT this agreement attached hereto as Schedule "A" form part of this By-law. By-law read a first and second time this 15 day of December, 1997. By-law read a third time and finally passed this 15 day of December, 1997. Mayor�- Clerk Ul, ,. �'P Y^ �� 41 F+a►rin: n10 k. ream W y a t. `ii,'µ N� ,..',ys 'SM1`'N•• y .+,A dt e°'�� S`n '' 'u 1 .X�;..v5°y, k', 4 •.,5 i. ,. r r a� Y�dd s � r � `a"t�9 and . tech n 4 � 4 f rJ� �', �'.5 DOCUMENT SIX 1O 9 Edih,(,m COMMITTEE OF(_:A\AI)iA\ ARCHIT'ECI'11 RAL. COUNCILS Reutsed 1990 Canadian Standard Form of Agreement between Client and Architect DOCUMENT 6 1989 Edition Revised 1990 This docutnent has been endorsed by the following member associations of the Committee of Canadian Architectural Councils fCCA(-): Architectural Institute of British Colombia 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 Roval Architectural Institute of Canada Enquiries should be directed to: Practice Affairs Committee of Canadian Architectural Councils Suite 330 55 Murray Street Ottawa, Ontario K1N SM3 (613) 232-83,41 Contents Agreement Between Client and Architect 1. Definitions 2. Responsibilities 2.1 Architect's Basic Services 2.2 Construction Cost and Estimates of Constn.tction 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 Laa Governing This Agreement 3.7 Successors and Assigns 3.8 Extent of Agreement 3.9 Liahility of the Architect 4. Fees and Reimbursable Expenses j. Other Conditions of Services (.(.A(:Copyright 1989 and 1990 Must not In copied in whole or in partwithout the writmi pc°nnission of CCAC- Cenain provisions of this document have been derived, with iron!AIA Document 13141 copyright 1987 by the American Institute of Architects, All rig?av reservccl_AIA'c," ,AIA copyrighted material has been reproduced with permission.or the American Institute of Architects under permission numi,et-83073 Punncr reprcxiuctiOn, is I)rr,,hihitec.l. BARRY • BRYAN ' ARCHITECT 11 Stanley Court • ENGINEER Whitby, Ontario L1N 8P9 ASSOCIATES (1991) LIMITED • PROJECT MANAGERS Telephone(905)666-5256 SCHEDULE 's' October 24, 1997 Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1 C 3A6 1 Attention: Lou Ann Birkett, C.P.P., A.M.C.T. Purchasing Manager ' Re: CL 9727 Design Fees ' Garnet B. Rickard Recreation Complex -Twin Pad Our Project No. 97100 1 Dear Ms. Birkett: Further to our negotiations of yesterday with Mr. Joe Caruana, we would like to submit this proposal for our additional costs related to the above project. 1 This increase is due to the increased scope scope of work beyond the provided for in our initial Y P proposal. ' As agreed, the increase in the cost of services will be $52,000.00. 1 Our revised contract amount for design services will now be $210,000.00. This increase allows for the following adjustment to item 5.2, other conditions of services as stated in our contract amendment dated October 22, 1997. "in the event the construction period extends beyond one month following substantial completion ' for construction of September 15, 1998, additional contract administration services will be invoiced on an hourly basis at quoted rates or a mutually agreed amount.". We thank you for your consideration in this matter and look forward to assisting you in the completion of this project. ' Yours very truly, Denis O'Connell, Project Manager DOC/cb C.C. Mr. Joe Caruana, Director of Community Services 7100L2410-Fees.wpd ' Canadian Standard Form of Agreement Between Client and Architect ' 1989 Edition Revised 1990 Agreement ' made as of the 25 day of June in the year of nineteen hundred and ninety-seven Between the Client: The Corporation of the Municipality of Clarington (Include name and address) 40 Temperance Street Bowmanville, Ontario L1C 3A6 and the Architect: Barry o Bryan Associates (1991) Limited ' (Include name and address) 11 Stanley Court Unit 1 Whitby, Ontario ' L1N 8P9 For the following Project: (Include detailed description of project location and scope) Garnet B. Rickard Recreation Complex - Twin Pad Expansion, Part Lot 15, Concession 1, Municipality of Clarington, ' Regional Municipality of Durham The Client and the Architect agree as set forth in the following terms and conditions. r I Definitions ' Project Budget 1.1 The Project Budget is the Client's estimated total expenditure for the r 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 Cost 1.3 Construction Cost means the contract price(s) of all elements of the , 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 Construc- tion 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 Docu- ments and represents the entire Agreement between the parties. The v Contract supersedes all prior negotiations, representations or agree- ments,either written or oral,including the bidding documents. Contract 1.5 The Contract Documents consist of the executed Agreement between Documents the 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 ry 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. Work 1.9 The Work means the total construction and related services required by the Contract Documents. Place of the Work 1.10 The Place of the Work is the designated site or location of the project of which the Work may be the whole or a part. ror Bank Rate 1.11 Bank Rate means the bank rate established by the Bank of Canada as the minimum rate at which the Bank of Canada makes short term advances to the chartered banks. ' Revision 1990 1.11 Bank Rate 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 Basic mechanical and electrical engineering services,of which all engineer- Services ing services shall be provided by professional engineers. The Architect's basic services include the co-ordination required to in- tegrate all parts of the service. 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 Client's 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 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 function- ally 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 s , estimate of Construction Cost,the Architect shall prepare,for approval Development y by the Client, design development documents consisting of drawings Phase and other documents appropriate to the size of the project to fix and describe the size and character of the entire project as to the architec- tural,structural,mechanical,and electrical systems,materials and such other elements as may be appropriate. y The Architect shall prepare and submit to the Client for approval a 2.1.8 y I revised estimate of the Construction Cost. The Architect shall continue to review applicable statutes,regulations, 2.1.9 o codes and by-laws in relation to the design of the project. iBased on the approved design development documents and approved 2.1.10 Construction 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 construc- tion 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 Con- ' tractor. The Architect shall review statutes, regulations, codes and by-laws 2.1.13 o applicable to the design and where necessary review the same with the r authorities having jurisdiction in order that the required consents, approvals, licences and permits necessary for the project can be ap- plied for and obtained by the Client. Revision 1990 2.1.1 Basic Services 2.1.5, 2.1.9 and 2.1.13 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 Phase assist 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 pur- poses: ' 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 the acts or omissions of the Contractor,Sub-Con- tractors or any other persons performing any of the Work, or for v 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 con- struction means, methods, techniques, sequences, or procedures p 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 per- formed 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 v 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. o (c) minor deviations from the Contract Documents correctable prior to completion,and ' Revision 1990 ' 2.1.17 ' (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'Com- pensation 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 Contract 2.1.19 Documents and shall make findings as to the performance thereunder by both the Client and Contractor.The Architect shall render interpreta- tions 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 ail 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 2.1.22 reasonable promptness upon the Contractor's submittals such as shop 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 assembly of which the item is a component. ' The Architect shall prepare change orders for the Client's approval and 2.1.23 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. Prior to the end of the period of one year following the date of 2.1.26 Substantial Performance, the Architect shall review any defects or deficiencies which have been reported or observed during that period, ' and the Architect shall notify the Contractor in writing of those items requiring attention by the Contractor to complete the Work in accord- ance with the Contract. Revision 1990 2.1.26 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 ' Estimates of cost of labour, materials or equipment, over the Contractor's methods Construction of 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 15%, 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 para- graph 3.5.3. 2.2.4 If the lowest bona fide bid or lowest negotiated proposal exceeds the e latest approved estimate of Construction Cost prepared as set out in paragraph 2.1.11 by more than 15%,unless there has been an increase in the Construction Budget or the project has been abandoned or v terminated in accordance with paragraph 3.5.3, the Architect shall modify at no additional fee,the drawings and specifications,or provide other services as necessary to reduce the Construction Cost to within 15%of the latest approved estimate unless the excess is due to extraor- dinary market conditions. The providing of such services shall be the limit of the Architects 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. h L' Revision 1990 ' 2.2.3 and 2.2.4 The Client shall furnish information, surveys, reports and services as 2.3.3 set out below, the accuracy and completeness of which the Architect ' shall be entitled to rely upon 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 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 informa- tion, as applicable: grades and lines of streets, alleys, pavements and adjoining property and structures;adjacent drainage;rights of way;restrictions;easements;encroachments;zoning;deed restric- tions; 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 reports which may include but are not limited to test borings, test pits, determination of sod bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary opera- ' tions for anticipating subsoil conditions, with reports and ap- propriate professional recommendations; (c) reports and appropriate professional recommendations of specialist consultants when required by the Architect; y (d) air and water pollution tests for hazardous materials, structural, mechanical, chemical, and other laboratory and environmental tests,inspections,laboratory and field tests and reports as required by the Architect,the Architect's Consultants,the authorities having 's jurisdiction 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 y services as the Client may require to verify the Contractors applica- tions for payment or to ascertain how or for what purpose the o 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 neces- sary. i The Client shall obtain all required consents, approvals, licences and 2.3.5 s permits from authorities having jurisdiction. s Z3 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 zt Contract, he shall immediately notify the Architect in writing. s 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 services described in Article 2.4 are not included in basic services 2.4.1 Article 2.4 Architect's unless so identified in Article 5. Additional services shall be provided Additional only if authorized by the Client and they shall be paid for by the Client Services as provided in this Agreement in addition to the compensation for basic services. Revision 1990 23.3(a)(b)and(d) 2.3.6, 2.4.1 and 2.4 Marginal Headings deleted. 2.4.2 Providin g analyses ses of the Client's needs and developing ' P g a program ram of g spatial and functional requirements for the project. 2.4.3 Providing financial feasibility, Project Budget or other special studies. ' 2.4.4 Providing site evaluations, planning, or environmental studies. 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 UtIrAdtki bt AAJ, 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 which such revisions or additions are: (a) inconsistent with instructions or written approvals previously given, (b) required by the enactment or revisions of statutes, regulations, v codes or by-laws, (c) due to the interpretation of the authorities having jurisdiction differing from the Architect's interpretation of statutes,regulations, q 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. e 2.4.12 Preparing models or architectural renderings specifically commis- sioned by the Client. 2.4.13 Preparing documents of alternative, separate or sequential bids or providing extra services in connection with bidding, negotiation, or rZ construction prior to the completion of the construction documents phase. 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 commen- surate with 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, valua- tions, or detailed appraisals of existing facilities. CC Revision 1990 , 2.4.11(a) Providing services in connection with the Work of a construction 2.4.16 manager, or separate consultants retained by the Client. ' Providing services made necessary by the default of the Contractor, or 2.4.17 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. 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 respon- sibilities. (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 changes in the Work made during construction based on marked-up ' 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 2.4.21 system 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 2.4.22 by fire or other cause during construction and furnishing services as i 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 i proceeding. ' Providing or arranging for services of consultants for other than the 2.4.24 basic architectural, structural, mechanical and electrical engineering P 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. * Included as part of Basic Services. i 1 Y 3 General Conditions Article 3.1 3.1.1 Plans, sketches, drawings, graphic representations and specifications ' Copyright and as instruments of service are and shall remain the property of the Use of Architect whether the project for which they are made is executed or Documents not. The Client shall be permitted to retain copies, including reproducible copies, of plans, sketches, drawings, graphic repre- sentations and specifications for information and reference in connec- tion with the Client's use and occupancy of the project. Except for reference purposes, the plans, sketches, drawings, graphic repre- sentations and specifications shall not be used for additions or altera- tions 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 commis- sioned 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. e�3.2.2 The Architect shall be entitled to include as part of the Contract w Documents a provision whereby a sign identifying the Architect may be erected on the project site. V Article 3.3 3.3.1 All matters in dispute under this Agreement may,with the concurrence a� Arbitration of 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 the board of arbitration. o, 3.3.3 The award of the arbitrator or board of arbitration shall be final and binding upon the parties. 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 Suspension or be compensated within 30 days of the date that an invoice is rendered Abandonment for all services performed together with reimbursable expenses then U 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 0 I ' 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 the 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. 1 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 other- ' wise 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 i development phase;or $ ' (c) five percent if suspension or termination occurs during any sub- sequent phase. Unless otherwise specified, this Agreement shall be governed by the 3.6.1 Article 3.6 law of the Place of the Work. Law Governing This Agreement a 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 C 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 be- 3.8.1 Article 3.8 s tween the Client and the Architect and supersedes all prior negotia- Extent of tions, representations, or Agreements, either written or oral. This Agreement Agreement may be amended only by written instrument signed by both s Client and Architect. In consideration of the premises and of provision of the services by the 3.9.1 Article 3.9 Architect to the Client under this Agreement,the Client agrees that any Liability of the and all claims which he has or hereafter may have against the Architect 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 D 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 I 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.The"Architect"in this paragraph includes officers, directors,architects, his employees,representatives and consultants. tRevision 1990 3.9.1 last sentence added 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 therefore 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. 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 manufac- tured 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,construc- tion 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 or with respect to any work performed by v them which is not part of the Work as defined by this Agreement. 3.9.6 The Architect's liability for all claims of the Client 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 Agree- ment 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. 3.9.7 Unless otherwise provided in this Agreement, the Architect and the Architect's consultants shall have no responsibility for the discovery, , presence, handling, removal or disposal of or exposure of persons to hazardous materials in any form at the Project site, including but not limited to asbestos,asbestos products,polychlorinated biphenyl(PCB) or any other toxic substances. N Revision 1990 , 3.9.5 and new 3.9.7 ' 4 Fees and Reunbursable Expenses 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 NSA dollars 4.2 Retainer ($ --- )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.) A fixed fee of one hundred & fifty-eight thousand, five hundred dollars ($158,500.00) . The maximum fixed fee payable at the end of each phase shall be as follows: 4.4 ' sum or a percen tion Cost shall be apportioned to the phases of service as follows: Schematic Design Phase percent (12.5%) Design Development Phase percent (12.5%) Construction Documents Phase percent (50 %) ' Bidding or Negotiation Phase percent ( 5 %) Construction Phase—Contract Administration percent (20 %) Total one hundred percent ( 100 %) i oft construction cost,the basis for the apportioning of the applicable percent of the fee for the phases of services stated above shall be calculated o he following: ' Schematic Design se: the mutually agreed Construction Budget at the commencement o hase. Design Development Phase: approved estimate of Construction Cost at the commencement of the se. Construction Documents Phase:the appro estimate of Construction Cost at the commencement of the phase. Bidding or Negotiation Phase: the approved estimate the Construc- tion Cost at the commencement of the phase. Construction Phase—Contract Administration:the actual Constru n 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, excludin g those provided Additional by 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 par- ticularfee calculations apply, if necessary.) Refer to Section 5 — Other Conditions of Services, ' Page 16 of 16. 4.7 Fees for additional services provided by the Architect's consultants shall 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 consultant's 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 V Expense consultant's personnel engaged on the project plus the Architect's or the consultant's portions of the cost of mandatory and customary contributions and benefits related thereto which include employment q 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_J of such actual expenditures.They include expenditures for the follow- ing: (a) travel,e.g.,for transportation,lodging and meals,with car expense computed at $0.32 per kilometer; � (b) communication and shipping, e.g., for long distance telephone calls, telegrams, telex, courier service, postage and electronic conveyances; (c) reproduction of plans, sketches, drawings, graphic repre- sentations, specifications and other documents, excluding reproductions for the Architect's and the consultant's office use; (d) preparation of renderings,models,and mock-ups requested by the Client; (e) fees, levies,duties or taxes for permits,licences or approvals from authorities having jurisdiction; (f) data processing and photographic services relative to additional services of the Architect; (g) overtime work authorized in advance by the Client to the extent that the cost of such work exceeds normal direct personnel ex- penses; (h) insurance requested by the Client in excess of that normally carried by the Architect and the consultants. Fees and Reimbursable Expenses 4 The Client shall pay fees and reimbursable expenses to the Architect 4.1 monthly when invoices are rendered as set forth in this article. The Client shall pay an initial amount of NSA dollars 4.2 Retainer ($ --- )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 particularfee calculations apply, if necessary.) A fixed fee of two hundred and ten thousand dollars (IP210,000.00) . The maximum fixed fee payable at the end of each phase shall be as follows: 4.4 sum or a percen tion Cost shall be apportioned to the phases of service as follows: Schematic Design Phase percent (12.5%) Design Development Phase percent (12.5%) Construction Documents Phase percent (50 %) Bidding or Negotiation Phase percent ( 5 %) Construction Phase—Contract Administration percent (20 %) Total one hundred percent ( 100 %) oft construction cost,the basis for the apportioning of the applicable percent of the fee for the phases of services stated above shall be calculated o e following: Schematic Design se: the mutually agreed Construction Budget at the commencement of hase. Design Development Phase: approved estimate of Construction Cost at the commencement of the se. Construction Documents Phase:the appro estimate of Construction Cost at the commencement of the phase. Bidding or Negotiation Phase: the approved estimate the Construc- tion Cost at the commencement of the phase. Construction Phase—Contract Administration:the actual Constru ' n 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 Additional by 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 par- ticularfee calculations apply, if necessary.) Refer to Section 5 — Other Conditions of Services, Page 16 of 16. U 4.7 Fees for additional services provided by the Architect's consultants shall be as invoiced by the consultant according to the hourly fee rates or multiples of direct personnel expense set out below plus 25 % e of the consultant's invoiced amounts. s (Identify specific types of consultants in Article S, if required.) Direct Personnel 4.s Direct personnel expense means the salary of the Architect's or the V Expense consultant's personnel engaged on the project plus the Architect's or the consultant's 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, e Expenses employees,and the consultants in the interest of the project plus.1.0_.0/o of such actual expenditures.They include expenditures for the follow- ing: o (a) travel,e.g.,for transportation,lodging and meals,with car expense computed at $0.32 per kilometer; (b) communication and shipping, e.g., for long distance telephone s calls, telegrams, telex, courier service, postage and electronic conveyances; (c) reproduction of plans, sketches, drawings, graphic repre- sentations, specifications and other documents, excluding reproductions for the Architect's and the consultant's office use; (d) preparation of renderings,models,and mock-ups requested by the Client; (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 ex- penses; (h) insurance requested by the Client in excess of that normally carried by the Architect and the consultants. Unpaid accounts shall bear interest at 2%per annum above the Bank 4.10 Interest Rate 30 days after the date that the invoice for fees, reimbursable expenses,and applicable taxes has been rendered by the Architect. (Federal and Provincial statues and regulations at the Client's and Architect's principal places of business, the location of theproject and ' elsewhere may affect the validity of thisprovision.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 4.11 Deductions on 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 15 months * Refer to Article 5. 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 equitable adjustment. * Hourly rates of fees in paragraphs 4.6 and 4.7 are subject to review and 4.15 adjustment annually.*/is/TJMOyV: (1�11e/r�,Muir!rAkliu li k i l f/i�ilfi�le�/�1b�i�kdi�H��i.��i�tl�fibfz,�.� In the event that new or additional taxes in respect of the services 4.16 i included in this Agreement are required by federal or provincial legis- lation after the Agreement is executed, the amount under this Agree- ment shall be adjusted to include such levies. ' Fees and reimbursable expenses may be subject to the Federal Goods and Services Tax. The Client shall pay to the Architect, together with and in addition to any fees and reimbursable expenses that become payable,any Goods and Services Taxes that become payable in relation to the fees and reimbursable expenses as required by legislation. The Architect shall maintain, by generally accepted accounting 4.17 Accounting methods, records of reimbursable expenses, expenditures pertaining Records to the 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. ' Revision 1990 4.10,4.14 and 4.16 5 Other Conditions of Services ' 1. It is agreed the lump sum fee identified in Item 4.6 does not include: a) Increase in the scope of work as required by the Municipality of Clarington RFP97-2 dated April 29, 1997. b) Disbursement charges for printing of documents for tender if not completed by the Municipality of Clarington. , c) All costs for specialized materials inspection and testing. d) All costs for decommissioning of the septic system. e) All costs for storm water management. f) All costs for soils testing over the $2,000 allowance. , g) Goods and Services Tax. 2. The fixed fee includes the Architect's Services set out in this contract, ' the Client's Request for Proposals RFP97-2 and the Architect's proposal dated May 14, 1997 (collectively the "Architect's Services") . If construction of the project is not completed by October 15, 1998 (the "Completion Date") which date shall be extended by any period during which construction is interrupted by labour disputes or unavailability of construction materials through no fault of the Architect then additional services not included in the Architect's Services directly necessitated by the delay in construction shall be invoiced on a time basis at the rates set out in Schedule 'A' attached or as mutually agreed. There shall be no additional fee for any of the Architect's ' Services, the performance of which occurs after the Completion Date. 3. It is agreed Barry o Bryan Associates (1991) Limited letter dated ' October 24, 1997 forms part of this agreement attached as Schedule 'B' . This Agreement entered into as of the day and year first above written. Client , The Corporation of the Municipality of Clarington by i r Witness Architect Barry - Bryan Associates (1991) Limited , by ' Witness 5 Other Conditions of Services 1. It is agreed the lump sum fee identified in Item 4.6 does not include: a) Increase in the scope of work as required by the Municipality of Clarington RFP97-2 dated April 29, 1997. b) Disbursement charges for printing of documents for tender if not completed by the Municipality of Clarington. c) All costs for specialized materials inspection and testing. d) All costs for decommissioning of the septic system. e) All costs for storm water management. f) All costs for soils testing over the $2,000 allowance. g) Goods and Services Tax. 2. The fixed fee includes the Architect's Services set out in this contract, the Client's Request for Proposals RFP97-2 and the Architect's proposal dated May 14, 1997 (collectively the "Architect's Services") . If construction of the project is not completed by October 15, 1998 (the "Completion Date") which date shall be extended by any period during which construction is interrupted by labour disputes or unavailability of construction materials through no fault of the Architect then additional services not included in the Architect's Services directly necessitated by the delay in construction shall be invoiced on a time _ basis at the rates set out in Schedule 'A' attached or as mutually agreed. _ There shall be no additional fee for any of the Architect's Services, the performance of which occurs after the Completion Date. e c This Agreement entered into as of the day and year first above written. Client The Corporation of the Munici ali y nf MAringi-on by ` Witness Architect Barry o Bryan Associates (1991) Limited by V.;,itness Unpaid accounts shall bear interest at 2%per annum above the Bank 4.10 Interest Rate 30 days after the date that the invoice for fees, reimbursable expenses,and applicable taxes has been rendered by the Architect. (Federal and Provincial statues 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.Species legal advice sbould 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 4.11 Deductions on 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 15 months * Refer to Article 5. 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 equitable adjustment. Hourly rates of fees in paragraphs 4.6 and 4.7 are subject to review and 4.15 adjustment annually.¢r/4/fb909V: (!�1'eb-�,/ifiFe�rf��j`ocfil�k���bf r4t4z�lpkt�b� �ka�G�C�I�/i �hka4�s/�� yld�rlllrl c�t�s/d''/r/i�i�ii�lels/aElbfz��/i>�cf�i,� '>�itf�Eibfif.� In the event that new or additional taxes in respect of the services 4.16 included in this Agreement are required by federal or provincial legis- lation after the Agreement is executed, the amount under this Agree- ment shall be adjusted to include such levies. Fees and reimbursable expenses may be subject to the Federal Goods and Services Tax. The Client shall pay to the Architect, together with and in addition to any fees and reimbursable expenses that become payable,any Goods and Services Taxes that become payable in relation to the fees and reimbursable expenses as required by legislation. The Architect shall maintain, by generally accepted accounting 4.17 Accounting methods, records of reimbursable expenses, expenditures pertaining Records to the 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. Revision 1990 4.10, 4.14 and 4.16 ARCHITECT 77 Stanley Court BARRY • BRYAN ' ENGINEER Whitby, Ontario L11Y 8P9 ASSOCIATES (1991) LIMITED • PROJECT MANAGERS Telephone(905)666.5256 GARNET B. RICKARD ERCREATION COMPLEX - TWIN PAD Schedule `A' - Hourly Rates Project Manager $90.00/hour Sr. Project Architect $85.00/hour ' Sr. Project Design Engineers $85.00/hour Landscape Architect $52.00/hour ' Job Captains, Assistant Project Managers $70.00/hour Design Engineers $60.00/hour CAD Operators $55.00/hour ' Sr. Cost Consultant $85.00/hour Jr. Cost Consultant $60.00/hour ' Contract Administrators $55.00/hour Clerical $35/hour 77 ...i .t Yd J .. M yip 5 � f`cf ++�'.4#v•0.M iw 4 n� rT ';� �wt�+ ','4, ,: , �, g s r � tlyml t y",t: oil .A'y Z' 0.^c � I � P• 4 '*^ xR�µ b b �. (yry .a f ,� �.rr ^F'" 'a "tl S ^l. �t v t A R li} vow e. s+r a :T T` r � S tl � W� L �L ­ig itllw. n nag i�. ^� s 4 Ar e'�,� a+'ki a r w' •k �4�v *` ��dv�1 `A Wryinly"yam o yy -toot 19h 9�:�%�111 U 11 Rcuised 1990 DOCUMENT SIX 1989 Edition COMMITTEE OF CANADIAN ARCHITECTURAL COUNCILS Revised 1990 Canadian Standard Form of Agreement between Client and Architect DOCUMENT 6 1989 Edition Revised 1990 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 4� 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 t Committee of Canadian Architectural Councils Suite 330 55 Murray Street Ottawa, Ontario KIN 5M3 (613)232-8341 i 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 and 1990 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 copyrights 1987 by the American Institute of Architects. All rights reserved AIA©.AIA copyrighted material has been reproduced with permission of the American Institute of Architects under permission number 83073.Further reproduction is prohibited. Canadian Standard Form of Agreement Between Client and Architect 1989 Edition Revised 1990 1 Agreement made as of the 25 day of June in the year of nineteen hundred and ninety-seven Between the Client: The Corporation of the Municipality of Clarington z (Include name and address) 40 Temperance Street Bowmanville, Ontario v L1C 3A6 and the Architect: Barry o Bryan Associates (1991) Limited ° (Include name and address) 11 Stanley Court Unit 1 Whitby, Ontario o LIN 8P9 For the followin Project: �. g l ect: (Include detailed description of project location and scope) Garnet B. Rickard Recreation Complex - Twin Pad Expansion, Part Lot 15, Concession 1, Municipality of Clarington, Regional Municipality of Durham The Client and the Architect agree as set forth in the following terms and conditions. ti r 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 Cost 1.3 Construction Cost means the contract price(s) of all elements of the 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 Construc- tion 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 Docu- ments and represents the entire Agreement between the parties. The Contract supersedes all prior negotiations, representations or agree- ments,either written or oral,including the bidding documents. Contract 1.5 The Contract Documents consist of the executed Agreement between Documents the 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. 0 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. Work L9 The Work means the total construction and related services required by the Contract Documents. Place of the Work 1.10 The Place of the Work is the designated site or location of the project of which the Work may be the whole or a part. Bank Rate 1.11 Bank Rate means the bank rate established by the Bank of Canada as the minimum rate at which the Bank of Canada makes short term advances to the chartered banks. Revision 1990 1.11 Bank Rate ' Responsib' 'ties 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 Basic mechanical and electrical engineering services,of which all engineer- Services ing services shall be provided by professional engineers. The Architect's basic services include the co-ordination required to in- tegrate all parts of the service. 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 Client's 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 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 function- ally 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 Phase and other documents appropriate to the size of the project to fix and describe the size and character of the entire project as to the architec- tural,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 applicable statutes,regulations, 2.1.9 oti codes and by-laws in relation to the design of the project. Based on the approved design development documents and approved 2.1.10 Construction 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 construc- tion 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 Con- tractor. The Architect shall review 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 ap- plied for and obtained by the Client. 1 Revision 1990 2.1.1 Basic Services 2.1.5, 2.1.9 and 2.1.13 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 Phase assist 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 pur- poses: 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 the acts or omissions of the Contractor,Sub-Con- tractors 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 con- struction 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 per- formed 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 , Revision 1990 2.1.17 (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' Com- pensation 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 Contract 2.1.19 Documents and shall make findings as to the performance thereunder by both the Client and Contractor.The Architect shall render interpreta- tions 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 z 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 U work has been fabricated, installed or completed. The Architect shall review or take other appropriate action with 2.1.22 reasonable promptness upon the Contractor's submittals such as shop 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 assembly of which the item is a component. The Architect shall prepare change orders for the Client's approval and 2.1.23 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 21.24 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. Prior to the end of the period of one year following the date of 2.1.26 Substantial Performance, the Architect shall review any defects or deficiencies which have been reported or observed during that period, and the Architect shall notify the Contractor in writing of those items requiring attention by the Contractor to complete the Work in accord- ance with the Contract. Revision 1990 2.1.26 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 ' Estimates of cost of labour,materials or equipment, over the Contractor's methods Construction of 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 15%,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 para- graph 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 paragraph 2.1.11 by more than 15%,unless there has been an increase in the Construction Budget or the project has been abandoned or v terminated in accordance with paragraph 3.5.3, the Architect shall modify at no additional fee,the drawings and specifications,or provide other services as necessary to reduce the Construction Cost to within 15%of the latest approved estimate unless the excess is due to extraor- dinary market conditions. The providing of such services shall be the limit of the Architects 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 Clients 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. Revision 1990 2.2.3 and 2.2.4 ' The Client shall furnish information, surveys, reports and services as 2.3.3 set out below, the accuracy and completeness of which the Architect shall be entitled to rely upon 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 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 informa- tion, as applicable: grades and lines of streets, alleys, pavements and adjoining property and structures;adjacent drainage;rights of way;restrictions;easements;encroachments;zoning;deed restric- tions; 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 reports which may include but are not limited to test borings, test pits, determination of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary opera- tions for anticipating subsoil conditions, with reports and ap- propriate professional recommendations; (c) reports and appropriate professional recommendations of specialist consultants when required by the Architect; (d) air and water pollution tests for hazardous materials, structural, mechanical, chemical, and other laboratory and environmental tests,inspections,laboratory and field tests and reports as required by the Architect,the Architect's Consultants,the authorities having jurisdiction or the Contract Documents, and (e) all legal,accounting and insurance counselling services as may be v necessary at any time for the project, including such auditing services as the Client may require to verify the Contractors applica- tions 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 neces- sary. The Client shall obtain all required consents, approvals, licences and 2.3.5 permits from authorities having jurisdiction. 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 in writing. 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 services described in Article 2.4 are not included in basic services 2.4.1 Article 2.4 Architect's unless so identified in Article 5. Additional services shall be provided Additional only if authorized by the Client and they shall be paid for by the Client Services as provided in this Agreement in addition to the compensation for basic services. Revision 1990 2.3.3(a)(b)and(d) 2.3.6, 2.4.1 and 2.4 Marginal Headings deleted. 2.4.2 Providing analyses of the Client's needs and developing a program of spatial and functional requirements for the project. 2.4.3 Providing financial feasibility, Project Budget or other special studies. ' 2.4.4 Providing site evaluations, planning, or environmental studies. 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 UtIrAltkiI)t a itai'u'Aliful(y4adtq AbIvA-ki, 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. U 2.4.10 Providing tenant layout and design services. 2.4.11 Making revisions to or providing additional drawings,specifications or other documents which such revisions or additions are: (a) inconsistent with instructions or written approvals 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 commis- sioned by the Client. 2.4.13 Preparing documents of alternative, separate or sequential bids or providing extra services in connection with bidding, negotiation, or construction prior to the completion of the construction documents phase. 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 commen- surate with 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, valua- tions,or detailed appraisals of existing facilities. 00 I Revision 1990 I 24.11(a) iProviding services in connection with the Work of a construction 2.4.16 manager, or separate consultants retained by the Client. Providing services made necessary by the default of the Contractor,or 2.4.17 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. 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 respon- sibilities. (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 changes in the Work made during constriction based on marked-up 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 2.4.21 system 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 2.4.22 by fire or other cause during construction and furnishing services as U 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. s ° Providing or arranging for services of consultants for other than the 2.4.24 basic architectural, structural, mechanical and electrical engineering services. 0 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. * Included as part of Basic Services. 3 General Conditions ' Article 3.1 3.1.1 Plans, sketches, drawings, graphic representations and specifications Copyright and as instruments of service are and shall remain the property of the Use of Architect whether the project for which they are made is executed or Documents not. The Client shall be permitted to retain copies, including reproducible copies, of plans, sketches, drawings, graphic repre- sentations and specifications for information and reference in connec- tion with the Client's use and occupancy of the project. Except for reference purposes, the plans, sketches, drawings, graphic repre- sentations and specifications shall not be used for additions or altera- tions 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 commis- sioned 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. w U 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. v Article 3.3 3.3.1 All matters in dispute under this Agreement may,with the concurrence Arbitration of 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 the board of arbitration. 3.3.3 The award of the arbitrator or board of arbitration shall be final and binding upon the parties. 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 Suspension or be compensated within 30 days of the date that an invoice is rendered Abandonment for all 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. 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 1 the 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. 1 This Agreement may be terminated by either parry 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 35.4. 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 other- wise 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 sub- sequent phase. Unless otherwise specified, this Agreement shall be governed by the 3.6.1 Article 3.6 law 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 be- 3.8.1 Article 3.8 tween the Client and the Architect and supersedes all prior negotia- Extent of tions, representations, or Agreements, either written or oral. This Agreement Agreement may be amended only by written instrument signed by both Client and Architect. In consideration of the premises and of provision of the services by the 3.9.1 Article 3.9 Architect to the Client under this Agreement,the Client agrees that any Liability of the and all claims which he has or hereafter may have against the Architect 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.The"Architect"in this paragraph includes officers, directors, architects, his employees, representatives and consultants. ' Revision 1990 3.9.1 last sentence added t 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 therefore 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. , 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 manufac- tured 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,construc- tion 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 or with respect to any work performed by them which is not part of the Work as defined by this Agreement. 3.9.6 The Architect's liability for all claims of the Client 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 Agree- ment 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 Z loss of profits and loss of markets. 3.9.7 Unless otherwise provided in this Agreement, the Architect and the Architect's consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials in any form at the Project site, including but not limited to asbestos,asbestos products,polychlorinated biphenyl(PCB) or any other toxic substances. ti Revision 1990 ' 3.9.5 and new 3.9.7 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 NIA dollars 4.2 Retainer ($ --- )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 faxed amounts, multiples, or Services percentages, and identify phases to which particular fee calculations apply, if necessary.) A fixed fee of one hundred & fifty–eight thousand, five hundred dollars ($158,500.00) . The maximum fixed fee payable at the end of each phase shall be as follows: 4.4 sum or a percen ction Cost shall be apportioned to the ' phases of service as follows: Schematic Design Phase percent (12.5%) Design Development Phase percent (12.5%) Construction Documents Phase percent (50 %) Bidding or Negotiation Phase percent ( 5 %) Construction Phase—Contract Administration percent (20 %) Total one hundred percent ( 100 %) v oft construction cost,the basis for the apportioning of the applicable percent of the fee for the phases of services stated above shall be calculated o he following: Schematic Design se: the mutually agreed Construction Budget at the commencement o phase. Design Development Phase: approved estimate of Construction o Cost at the commencement of the se. Construction Documents Phase:the appro estimate of Construction Cost at the commencement of the phase. Bidding or Negotiation Phase: the approved estimate the Construc- tion Cost at the commencement of the phase. Construction Phase—Contract Administration:the actual Constru ' n 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 ti 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 , Additional by 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 classes employees, if required. Identify specific services to which par- ticularfee calculations apply, if necessary.) Refer to Section 5 — Other Conditions of Services, Page 16 of 16. +- 4.7 Fees for additional services provided by the Architect's consultants shall 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 consultant's 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 v Expense consultant's personnel engaged on the project plus the Architect's or Z the consultant's 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_JW% of such actual expenditures.They include expenditures for the follow- ing: (a) travel,e.g.,for transportation,lodging and meals,with car expense computed at $0.32 per kilometer; ZI (b) communication and shipping, e.g., for long distance telephone calls, telegrams, telex, courier service, postage and electronic conveyances; (c) reproduction of plans, sketches, drawings, graphic repre- sentations, specifications and other documents, excluding reproductions for the Architect's and the consultant's office use; (d) preparation of renderings,models,and mock-ups requested by the Client; (e) fees, levies,duties or taxes for permits,licences or approvals from ' authorities having jurisdiction; (f) data processing and photographic services relative to additional services of the Architect; (g) overtime work authorized in advance by the Client to the extent that the cost of such work exceeds normal direct personnel ex- penses; (h) insurance requested by the Client in excess of that normally carried by the Architect and the consultants. Fees and Reimbursable Expenses 4 The Client shall pay fees and reimbursable expenses to the Architect 4.1 monthly when invoices are rendered as set forth in this article. The Client shall pay an initial amount of N/A dollars 4.2 Retainer ($ --- )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.) A fixed fee of two hundred and ten thousand dollars ( 210,600.00) . The maximum fixed fee payable at the end of each phase shall be as follows: 4.4 sum or a percen tion Cost shall be a the phases of service as follows: Schematic Design Phase percent (12.5%) Design Development Phase percent (12.5%) Construction Documents Phase percent (50 %) Bidding or Negotiation Phase percent ( 5 %) Construction Phase—Contract Administration percent (20 %) Total one hundred percent ( 100 %) of t construction cost,the basis for the apportioning of the applicable percent of the fee for the phases of services stated above shall be calculated o e following: Schematic Design se: the mutually agreed Construction Budget at the commencement of hase. Design Development Phase: approved estimate of Construction Cost at the commencement of the se. Construction Documents Phase:the appro estimate of Construction Cost at the commencement of the phase. Bidding or Negotiation Phase: the approved estimate the Construc- tion Cost at the commencement of the phase. Construction Phase—Contract Administration:the actual Constru . n 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 Additional by 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 par- ticularfee calculations apply, if necessary.) Refer to Section 5 - Other Conditions of Services, Page 16 of 16. J 4.7 Fees for additional services provided by the Architect's consultants shall be as invoiced by the consultant according to the hourly fee rates or multiples of direct personnel expense set out below plus 25 % e of the consultant's invoiced amounts. (Identify specific types of consultants in Article 5, if required.) m Direct Personnel 4.8 Direct personnel expense means the salary of the Architect's or the V Expense consultant's personnel engaged on the project plus the Architect's or the consultant's 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, e Expenses employees,and the consultants in the interest of the project plus 10-0/o c of such actual expenditures.They include expenditures for the follow- Z ing: c (a) travel,e.g.,for transportation,lodging and meals,with car expense computed at $0.32 per kilometer; (b) communication and shipping, e.g., for long distance telephone s calls, telegrams, telex, courier service, postage and electronic conveyances; (c) reproduction of plans, sketches, drawings, graphic repre- sentations, specifications and other documents, excluding reproductions for the Architect's and the consultant's office use; v (d) preparation of renderings,models,and mock-ups requested by the Client; (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 ex- ti penses; (h) insurance requested by the Client in excess of that normally carried by the Architect and the consultants. Unpaid accounts shall bear interest at 2%per annum above the Bank 4.10 Interest ' Rate 30 days after the date that the invoice for fees, reimbursable expenses,and applicable taxes has been rendered by the Architect. (Federal and Provincial statues 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 4.11 Deductions on 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 15 months * Refer to Article 5. 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 equitable adjustment. Hourly rates of fees in paragraphs 4.6 and 4.7 are subject to review and 4.15 adjustment annually.4r/4(s/fky 0y(ti: (1JW,/i/ aIrl dl?klibd Ahki h AhzbMbb4, �bkh 1'slio 1l drl rl�l,/a/tds/o7r/rh�c�t�le�/aflbli�kJi�'l.�af,/i,�!l'iln/it�fib�.� 1 ' In the event that new or additional taxes in respect of the services 4.16 included in this Agreement are required by federal or provincial legis- lation after the Agreement is executed, the amount under this Agree- ment shall be adjusted to include such levies. ' Fees and reimbursable expenses may be subject to the Federal Goods and Services Tax. The Client shall pay to the Architect, together with and in addition to any fees and reimbursable expenses that become payable,any Goods and Services Taxes that become payable in relation to the fees and reimbursable expenses as required by legislation. The Architect shall maintain, by generally accepted accounting 4.17 Accounting methods, records of reimbursable expenses, expenditures pertaining Records ' to the 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. ' Revision 1990 4.10,4.14 and 4.16 t 5 Other Conditions of Services ' 1. It is agreed the lump sum fee identified in Item 4.6 does not include: a) Increase in the scope of work as required by the Municipality of ' Clarington RFP97-2 dated April 29, 1997. b) Disbursement charges for printing of documents for tender if not completed by the Municipality of Clarington. , c) All costs for specialized materials inspection and testing. d) All costs for decommissioning of the septic system. e) All costs for storm water management. f) All costs for soils testing over the $2,000 allowance. ' g) Goods and Services Tax. 2. The fixed fee includes the Architect's Services set out in this contract, ' the Client's Request for Proposals RFP97-2 and the Architect's proposal dated May 14, 1997 (collectively the "Architect's Services") . If construction of the project is not completed by October 15, 1998 (the "Completion Date") which date shall be extended by any period during ' which construction is interrupted by labour disputes or unavailability of construction materials through no fault of the Architect then additional services not included in the Architect's Services directly ' necessitated by the delay in construction shall be invoiced on a time basis at the rates set out in Schedule 'A' attached or as mutually agreed. There shall be no additional fee for any of the Architect's ' Services, the performance of which occurs after the Completion Date. 3. It is agreed Barry o Bryan Associates (1991) Limited letter dated ' October 24, 1997 forms part of this agreement attached as Schedule 'B' . This Agreement entered into as of the day and year first above written. Client ' The Corporation of the Munici ali y of C:laring on 1 by t Witness ' Architect Barry o Bryan Associates (1991) Limited ' _ 1 by Witness 5 Other Conditions of Services 1. It is agreed the lump sum fee identified in Item 4.6 does not include: a) Increase in the scope of work as required by the Municipality of Clarington RFP97-2 dated April 29, 1997. b) Disbursement charges for printing of documents for tender if not completed by the Municipality of Clarington. c) All costs for specialized materials inspection and testing. d) All costs for decommissioning of the septic system. e) All costs for storm water management. f) All costs for soils testing over the $2,000 allowance. g) Goods and Services Tax. 2. The fixed fee includes the Architect's Services set out in this contract, the Client's Request for Proposals RFP97-2 and the Architect's proposal dated May 14, 1997 (collectively the "Architect's Services") . If construction of the project is not completed by October 15, 1998 (the "Completion Date") which date shall be extended by any period during which construction is interrupted by labour disputes or unavailability of construction materials through no fault of the Architect then additional services not included in the Architect's Services directly necessitated by the delay in construction shall be invoiced on a time _ basis at the rates set out in Schedule 'A' attached or as mutually agreed. There shall be no additional fee for any of the Architect's -Z Services, the performance of which occurs after the Completion Date. e This Agreement entered into as of the day and year first above written. Client e The Corporation of the Municipality of Clarington S a by Witness Architect Barry o Bryan Associates (1991) Limited z2 by Witness Unpaid accounts shall bear interest at 2%per annum above the Bank 4.10 Interest Rate 30 days after the date that the invoice for fees, reimbursable expenses,and applicable taxes has been rendered by the Architect. (Federal and Provincial statues and regulations at the Client's and Architects principal places of business, the location of the project and elsewhere may affect the validity of thisprovision.Species 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 4.11 Deductions on 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 15 months * Refer to Article 5. 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 equitable adjustment. Hourly rates of fees in paragraphs 4.6 and 4.7 are subject to review and 4.15 adjustment annually.*/4040": In the event that new or additional taxes in respect of the services 416 included in this Agreement are required by federal or provincial legis- lation after the Agreement is executed, the amount under this Agree- ment shall be adjusted to include such levies. Fees and reimbursable expenses may be subject to the Federal Goods and Services Tax. The Client shall pay to the Architect, together with and in addition to any fees and reimbursable expenses that become payable,any Goods and Services Taxes that become payable in relation to the fees and reimbursable expenses as required by legislation. The Architect shall maintain, by generally accepted accounting 4.17 Accounting methods, records of reimbursable expenses, expenditures pertaining Records to the 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. Revision 1990 4.10,4.14 and 4.16 BARRY • BRYAN • ARCHITECT Stanley Court • ENGINEER Whitby, Ontario L1 N 8P9 ASSOCIATES (1991) LIMITED • PROJECT MANAGERS Telephone (905)666- o 5256 GARNET B RICKARD RECREA110N COMPLEX - TWIN PAD ' Schedule `A' - Hourly Rates $90.00/hour Manager Project g Sr. Project Architect $85.00/hour Sr. Project Design Engineers $85.00/hour Landscape Architect $52.00/hour Job Captains, Assistant Project Managers $70.00/hour Design Engineers $60.00/hour CAD Operators $55.00/hour Sr. Cost Consultant $85.00/hour Jr. Cost Consultant $60.00/hour 1 Contract Administrators $55.00/hour Clerical $35/hour BARRY • BRYAN • ARCHITECT O Stanley Court • ENGINEER Whitby, Ontario L1N 8P9 ' ASSOCIATES (1991) LIMITED • PROJECT MANAGERS Telephone(905)666-5256 SCHEDULE 'B' October 24, 1997 Corporation of the Municipality of Clarington ' 40 Temperance Street Bowmanville, Ontario L1 C 3A6 Attention: Lou Ann Birkett, C.P.P., A.M.C.T. Purchasing Manager ' Re: CL 9727 Design Fees ' Garnet B. Rickard Recreation Complex -Twin Pad Our Project No. 97100 Dear Ms. Birkett: Further to our negotiations of,yesterday with Mr. Joe Caruana, we would like to submit this 1 proposal for our additional costs related to the above project. This increase is due to the increased scope of work beyond the scope provided for in our Initial ' proposal. As agreed, the increase in the cost of services will be $52,000.00. ' Our revised contract amount for design services will now be $210,000.00. This increase allows for the following adjustment to item 5.2, other conditions of services as stated ' in our contract amendment dated October 22, 1997. "In the event the construction period extends beyond one month following substantial completion for construction of September 15, 1998, additional contract administration services will be invoiced on an hourly basis at quoted rates or a mutually agreed amount.". We thank you for your consideration in this matter and look forward to assisting you in the completion of this project. ' Yours very truly, ' Denis O'Connell, Project Manager ' DOC/cb C.C. Mr. Joe Caruana, Director of Community Services 7100L2410-Fees.wpd c u, t • / I F ..t. Y !�� r� arvd' Az •`iry�'1 y '� �'a r.g �, r pfd x m F � r :of 4 ee 4 A 0' , t` ' Between C ent� 3 i DOCUMENT SIX 1989 Bdition COMMIT°IT,E OF CANADIAN ARCHITECTURAL COUNCILS Revised 1990 Canadian Standard Form of Agreement ' between Client and Architect DOCUMENT 6 1989 Edition , Revised 1990 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 Suite 330 » Murray Street Ottawa, Ontario KIN 3M3 ' (613)232-8341 Contents Agreement Between Client and Architect 1. Definitions 2. Responsibilities I 2.1 Architect's Basic Services 22 Construction Cost and Estimates of Construction Cost 2.3 Clients Responsibilities 2.4 Architect's Additional Services 3. General Conditions r 3.1 Copyright and Use of Documents {( 32 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 f CCAC Copyright 1989 and 1990 Must not he copied in whole or in part without the written permission of CCAC. Certain provisions of this document have been derived,with modifications, from A1A Document 8141 copyright© 1987 by the American Institute of Architects. All fights reserved. AIA©.AIA copyrighted material has been reproduced with permission of the American Institute of Architects under permission number 83073.Further reproduction l is prohihited. jCanadian Standard Form of Agreement Between Client and Architect 1989 Edition Revised 1990 i Agreement made as of the 25 day of June in the year of nineteen hundred and ninety-seven 'J Between the Client: The Corporation of the Municipality of Clarington (Include name and address) 40 Temperance Street Bowmanville, Ontario L1C 3A5 and the Architect: Barry o Bryan Associates (1991) Limited (Include name and address) 11 Stanley Court Unit 1 Whitby, Ontario ? L1N 8P9 For the following Project: (Include detailed description ofproject location and scope) Garnet B. Rickard Recreation Complex - Twin Pad Expansion, Part Lot 15, Concession 1, Municipality of Clarington, Regional Municipality of Durham 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 Constriction 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 12 The Construction Budget is the Client's estimated Construction Cost Budget including contingencies for cost increases. Construction Cost 1.3 Construction Cost means the contract price(s) of all elements of the 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 Construc- tion 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 v%-hich 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 Docu- ments and represents the entire Agreement between the parties. The �l Contract supersedes all prior negotiations, representations or agree- ments,either written or oral,including the bidding documents. v( Contract 1.5 The Contract Documents consist of the executed Agreement between Documents the 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. Work 1.9 The Work means the total construction and related services required by the Contract Documents. Place of the Work 1.10 The Place of the Work is the designated site or location of the project of which the Work may be the whole or a part. N Bank Rate 1.11 Bank Rate means the bank rate established by the Bank of Canada as the minimum rate at which the Bank of Canada makes short term advances to the chartered banks. Revision 1990 1.11 Bunk Rate { Responsib' 'ties 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 Basic mechanical and electrical engineering services,of which all engineer- Services ing services shall be provided by professional engineers. The Architect's basic services include the co-ordination required to in- tegrate all parts of the service. 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 Client's 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 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 function- ally 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 Phase and other documents appropriate to the size of the project to fix and describe the size and character of the entire project as to the architec- tural,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 fi revised estimate of the Construction Cost. The Architect shall continue to review applicable statutes,regulations. 2.1.9 codes and by-laws in relation to the design of the project. Based on the approved design development documents and approved 2.1.10 Construction 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 construc- tion of the project. The Architect shall advise the Client of am 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 Con- tractor. The Architect shall review 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 ap- plied for and obtained by the Client. Revision 1990 2.1.1 Basic Services 2.1.5, 2.1.9 and 2.1.13 . 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 Phase assist 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. i 2.1.16 The Architect shall carry out the general review of the Work at intervals 1 appropriate to the stage of construction Rvhich the Architect considers necessary to determine if the \fork 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 pur- poses: 1. To examine,evaluate and report to the Client upon representative samples of the\Xork: 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. v 2.1.17 The Architect shall not: 1. be responsible for the acts or omissions of the Contractor,Sub-Con- tractors 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 Z the Contract Documents. 2. have control, charge or supervision of,nor responsibility for con- struction means. inethods, 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 per- formed 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 Revision 1990 2.1.17 I (ci) am-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 am 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'Com- pensation Act, or other applicable statute, non-compliance with which may render the Client personally liable for the Contractor's detault. The Architect shall be the interpreter of the requirements of the Contract 2.1.19 Documents and shall make findings as to the performance thereunder I)v both the Client and Contractor.The Architect shall render interpreta- tions. as may be required with reasonable promptness on �-ritten 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 c-,,p ici,N. The Architect shall have the authority to reject work which does not 2.121 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 z - ith 2.1.22 reasonable promptness upon the Contractor's submittals such as shop drawings.product data.and samples,for conformance with the general design concept of the AXbrk as indicated in the Contract Documents. The Architect's review of a specific item shall not indicate acceptance of an assembly of which the item is a component. e The Architect shall prepare change orders for the Client's approval and 2.1.2 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 Rhich 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. Prior to the end of the period of one year following the date of 2.1.26 Substantial Perfomlance, the Architect shall review any defects or deficiencies which have been reported or observed during that period and the Architect shall notify the Contractor in writing of those items requiring attention by the Contractor to complete the Work in accord- ance with the Contract. Revision 1990 2.1.26 A--.icle 2.2 2.2.1 The Architect shall evaluate the Client's Construction Budget and shall G:�nstruction prepare estimates of the Construction Cost as previously set out in this Co,;t and Agreement. Neither the Architect nor the Client has control over the a E�:imates of cost of labour, materials or equipment, over the Contractor's methods Ct�nstruction of determining bid prices, or over competitive bidding, market, or Cl st negotiating conditions and therefore the Architect cannot warrant or represent that bids or negotiated prices will not vary from the estimate of Construction Cost.V ariance 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 I latest approved estimate of Construction Cost as set out in paragraph 2.1.11 by more than 15%,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 para- graph 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 '1 paragraph 2.1.11 by more than 15%,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 as necessary to reduce the Construction Cost to within 15%of the latest approved estimate unless the excess is due to extraor- _ dinary market conditions. The providing of such services shall be the limit of the Architects 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. _-�icle 2.3 2.3.1 The Client shall provide full information regarding requirements for the C_ient's project including a program, which shall set forth the Client's design R--sponsibilities 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. Revision 1990 2.2.3 and 2.2.4 The Client shall furnish information, surveys, reports and services as 2.3.3 set out below, the accuracy and completeness of which the Architect shall be entitled to rely upon 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 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 informa- tion, as applicable: grades and lines of streets, alleys, pavements and adjoining property and structures;adjacent drainage:rights of wav:restrictions;easements;encroachments:zoning;deed restric- tions: 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 reports which may include but are not limited to test borings, test pits, determination of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary opera- tions for anticipating subsoil conditions. n-ith reports and ap- propriate professional recomtendations; (c) reports and appropriate professional recommendations of specialist consultants when required by the Architect; (d) air and water pollution tests for hazardous materials, structural, mechanical, chemical, and other laboratory and environmental tests,inspections,laboratory and field tests and reports as required by the Architect,the Architect's Consultants.the authorities having jurisdiction 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 Contractors applica- tions for payment or to ascertain how or for what purpose the ff 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 neces- sary. The Client shall obtain all required consents, approvals, licences and 2.3.5 permits from authorities having jurisdiction. If the Client observes or otherwise becomes aware of any fault or defect 2.3. in the project or any nonconformity with the requirements of the Contract, he shall immediately notify the Architect in writing. 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 services described in Article 2.4 are not included in basic services 2.4.1 Article 2.4 Architect's unless so identified in Article 5. Additional services shall be provided Additional only if authorized by the Client and they shall be paid for by the Client Services as provided in this Agreement in addition to the compensation for basic services. Revision 1990 2.3.3(a)(b)and(d) 2.3.6, 2.4.1 and 2.4 Marginal Headings deleted. i 2.4.2 Providing analysis of the Client's needs and developing a program of spatial and functional requirements for the project. 2.4.3 Providing financial feasibility, Project Budget or other special studies. 2.4.4 ? Providing site evaluations, planning, or environmental studies. 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 1,JiJ\,kkJ, inventories of material and equipment. or life cycle cost*j studies. 14.9 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 which such revisions or additions are: (a) inconsistent with instructions or written approvals 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 commis- sioned by the Client. 2.4.13 Preparing documents of alternative, separate or sequential bids or providing extra services in connection with bidding, negotiation, or construction prior to the completion of the construction documents phase. 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 commen- surate with 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, valua- tions,or detailed appraisals of existing facilities. x Revision 1990 2.4.11(a) Providing services in connection with the Work of a construction 2.4.16 manager, or separate consultants retained by the Client. Providing services made necessary by the default of the Contractor,or 2.4.17 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. 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 respon- sibilities. (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 chances in the -Work made during construction based on marked-up 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 Perforniance. Providing special assistance in the utilization of any equipment or 2.4.21 system 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 2.4.22 by fire or other cause during construction and furnishing services as may be required in connection with the replacement of such work. J 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. 0 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. * Included as part of Basic Services. 3 General Conditions C Article 3.1 3.1.1 Plans, sketches, drawings, graphic representations and specifications Copyright and as instruments of service are and shall remain the property of the use of Architect whether the project for 9shich they are made is executed or Documents not. The Client shall be permitted to retain copies, including reproducible copies, of plans, sketches, drawings, graphic repre- sentations and specifications for information and reference in connec- tion with the Client's use and occupancy of the project. Except for reference purposes, the plans. sketches, drawings, graphic repre- sentations and specifications shall not be used for additions or altera- tions to the project or on any other project. As a condition precedent to the use of the plans,sketches.drav�-ings,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 commis- sioned 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.xvith the concurrence Arbitration of 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 the board of arbitration. 3.3.3 The award of the arbitrator or board of arbitration shall be final and ti binding upon the parties. Article 3.4 3.4.1 If the project is suspended or abandoned in«-hole or in part for more Project than a total of 60 days whether consecutive or not, the Architect shall Suspension or be compensated within 30 days of the date that an invoice is rendered Abandonment for all services performed together with reimbursable expenses then due and all termination expenses as defined in paragraph 35.5. 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 Architects fee shall be equitably adjusted. v 1 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 the 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 parry fail substantially to perform in accordance with its terms through no fault of the parry 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- 35.5 sion,abandonment or termination for which the Architect is not other- wise 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 sub- sequent phase. v Unless otherwise specified, this Agreeme:a shall be governed by the 3.6.1 Article 3.6 law 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 Assigns to this Agreement and to the partners, successors, assigns and legal g representatives of such other party with respect to all covenants of this y 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 be- 3.8.1 Article 3.8 tween the Client and the Architect and supersedes all prior negotia- Extent of tions, representations, or Agreements, either written or oral_ This Agreement Agreement may be amended only by written instrument signed by both Client and Architect. In consideration of the premises and of provision of the services by the 3.9.1 Article 3.9 Architect to the Client under this Agreement,the Client agrees that any Liability-of the and all claims which he has or hereafter may have against the Architect 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.The"Architect"in this paragraph includes officers, directors,architects, his employees,representatives and consultants. Revision 1990 3.9.1 last sentence added i 3.9.2 The Architect's policy for professional liability insurance or indemnity j 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 One 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 therefore 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. 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 manufac- tured 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,constric- tion 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 or with respect to any work performed by v them which is not part of the work as defined by this Agreement. 3.9.6 The Architect's liability for all claims of the Client shall absolutely cease to exist after a period of six(6)years from the date of: (a) Substantial Performance of the Work. m (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 Agree- ment shall be absolutel} 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 Z loss of profits and loss of markets. 3.9.7 Unless otherwise provided in this Agreement, the Architect and the Architect's consultants shall have no responsibility for the discovery. presence,handling, removal or disposal of or exposure of persons to hazardous materials in any form at the Project site, including but not limited to asbestos,asbestos products,polychlorinated biphenyl(PCB) or any other toxic substances. ,V Revision 1990 3.9.5 and new 3.9.7 1 Fees and Reimbursable Expanses 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. r The Client shall pay an initial amount of N/A dollars 4.2 Retainer (S --- )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 amount,. multiples, or Services percentages. and identif_i'phases ro which particularfee calculations apply, if necessarl%) A fixed fee of one hundred & fifty-eight thousand, five hundred dollars ($138,500.00) . The maximum fixed fee payable at the end of each phase shall be as follows: r 4.4 sum or a percen ction Cost shall be apportioned to the phases of service as follows: Schematic Design Phase percent (12.5%) Design Development Phase percent (12.5 0/6) Construction Documents Phase percent (50 1%) Bidding or Negotiation Phase percent ( 5 %) Construction Phase—Contract administration percent (20 %) Total one hundred percent ( 100 %) oft construction cost,the basis for the apportioning of the applicable percent of the fee for the phases of services stated above shall be calculated o he follox-ing: Schematic Design se: the mutually agreed Construction Budget at the commencement of phase. Design Development Phase: approved estimate of Construction Cost at the commencement of the se. Construction Documents Phase:the appro estimate of Construction Cost at the commencement of the phase. Bidding or Negotiation Phase: the approved estimate the Construc- tion Cost at the commencement of the phase. Construction Phase—Contract Administration:the actual Constru ' n 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. I Fees for 4.6 Fees for the Architect's additional services, excluding those provided Additional by 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 r classify einplof•ees, if required. Identify specific services to which par- ticularfee calculations apply, if necessary.) Refer to Section 5 — Other Conditions of Services, Page 16 of 16. *- 4.7 Fees for additional sen-ices provided by the Architect's consultants shall 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 consultant's invoiced amounts. (Identify specific types of consultants in Article 5, if required.) Direct PCaonnei 4.8 Direct personnel expense means the salary of the Architect's or the Expense consultant's personnel engaged on the project plus the Architect's or the consultant's 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-LW% of such actual expenditures.They include expenditures for the follow- ing: (a) travel.e.g.,for transportation,lodging and meals,with car expense computed at $0.32 per kilometer; (b) communication and shipping, e.g., for long distance telephone calls. telegrams, telex, courier service, postage and electronic conveyances; (c) reproduction of plans, sketches, drawings, graphic repre- sentations, specifications and other documents, excluding reproductions for the Architect's and the consultant's office use; (d) preparation of renderings,models,and mock-ups requested by the Client: (e) fees,levies,duties or taxes for permits,licences or approvals from authorities having jurisdiction; (f) data processing and photographic services relative to additional services of the Architect; (g) overtime work authorized in advance by the Client to the extent that the cost of such work exceeds normal direct personnel ex- penses; (h) insurance requested by the Client in excess of that normally carried by the Architect and the consultants. Fees and Reimbursable Expenses 4 The Client shall pay fees and reimbursable expenses to the Architect 4.2 monthly when invoices are rendered as set forth in this article. The Client shall pay an initial amount of N/A dollars 4.2 Retainer ($ --- )upon execution of this Agreement.The payment shall be credited to the Client's account as follows: Fee for Basic The fee for the Architect's basic services shall be computed as follows; 4.3 Services percentages, an d dent phases o1 which partic amounts, feeycalculati'ons apply, if necessary.) A fixed fee of two hundred and ten thousand dollars 0210,000.00) . The maximum fixed fee payable at the end of each phase shall be as follows: 4.4 sum or Laercen ction Cost shall be apportioned to the phases percent (12.5%) Schematic Design Phase percent (12.5%) Design Development Phase percent (50 %) Construction Documents Phase ercent ( 5 %) Bidding or Negotiation Phase percent C 20 %) Construction Phase—Contract Administration p Total one hundred percent ( 100 %) of construction cost,the basis for the apportioning of the applicable percent of the fee for the phases of services stated above shall be calculated o e foliowing: Schematic Design se: the mutually agreed Construction Budget at the commencement of hase. Design Development Phase: approved estimate of Construction Cost at the commencement of the se. Construction Documents Phase:the appro estimate of Construction Cost at the commencement of the phase. Bidding or Negotiation Phase: the approved estimate the Construc- tion Cost at the commencement of the phase. Construction Phase—Contract Administration:the actual Constru ' n 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 Additional by 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 par- ticularfee calculations apply, if necessary.) Refer to Section 5 — Other Conditions of Services, Page 16 of 16. J 4.7 Fees for additional services provided by the Architect's consultants shall Z. 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 consultant's invoiced amounts. (Identify specific types of consultants in Article S, if required.) Direct Personnel 4.8 Direct personnel expense means the salary of the Architect's or the C` Expense consultant's personnel engaged on the project plus the Architect's or the consultant's 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, Q Expenses employees,and the consultants in the interest of the project plus-..0_% of such actual expenditures.They include expenditures for the follow- ing: (a) travel,e.g.,for transportation,lodging and meals,with car expense computed at $0.32 per kilometer; c (b) communication and shipping, e.g., for long distance telephone calls, telegrams, telex, courier service, postage and electronic conveyances; (c) reproduction of plans, sketches, drawings, graphic repre- sentations, specifications and other documents, excluding reproductions for the Architect's and the consultant's office use; L (d) preparation of renderings,models,and mock-ups requested by the Client; (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 ex- ti penses; (h) insurance requested by the Client in excess of that normally carried by the Architect and the consultants. Unpaid accounts shall bear interest at 20/a per annum above the Bank 4.10 Interest a Rate 30 days after the date that the invoice for fees, reimbursable expenses,and applicable taxes has been rendered by the Architect. a (Federal and Provincial statues and regulations at the Client's and Architect's principal places of business, the location of the project and elsewbere 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 wailers.) No deductions shall be made from amounts parable to the Architect 4.11 Deductions on 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 Architects services is changed 4.12 Changes and Adjustments materially the fees shall be equitably adjusted. If and to the extent that the contract Lime 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 desgn phase, the design 4.14 development phase, and the i 2 nstruc ion documents phase have not been completed within months after the date of this * Refer to Article 5. Agreement,or for the remaining phases within 1_5 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 equitable adjustment. Hourly rates of fees in paragraphs 4.6 and 4.7 are subject to review and 4.15 adjustment annually.*/3ts/fbAOA 64�/ 6 kf�/Shad (ll�e�-�,li�r!¢t�aEfil�liJt�B br a4742�1pbrb��.�' hutw>,a��sr 4it Ogld1hhJ;,46aiY A t b V In the event that new or additional :axes in respect of the services 4.16 included in this Agreement are required by federal or provincial legis- lation after the Agreement is executed, the amount under this Agree- ment shall be adjusted to include such levies. Fees and reimbursable expenses may be subjec:to the Federal Goods and Services Tax.The Client shall pay to the Architect, together with and in addition to any fees and reimbursable expenses that become payable,any Goods and Services Taxes that beb payable in relation to the fees and reimbursable expenses as required Y 1 Accounting The Architect shall maintain, by generally accepted accounting 4.17 Records methods, records of reimbursable expenses, expenditures pertaining to the Architect's additional services and services for rti'E:ich the fee is computed as a multiple of direct personnel expense. These records shall be available to the Client at mutually convenient times. Revision 1990 4.10,4.14 and 4.16 5 Other Conditions of Services 1. It is agreed the lump sum fee identified in Item 4.6 does not include: a) Increase in the scope of work as required by the Municipality of Clarington RFP97-2 dated April 29, 1997. b) Disbursement charges for printing of documents for tender if not completed by the Municipality of Clarington. c) All costs for specialized materials inspection and testing. d) All costs for decommissioning of the septic system. e) All costs for storm water management. f) All costs for soils testing over the $2,000 allowance. g) Goods and Services Tax. 2. The fixed fee includes the Architect's Services set out in this contract, the Client's Request for Proposals RFP97-2 and the Architect's proposal dated May 14, 1997 (collectively the "Architect's Services") . If construction of the project is not completed by October 15, 1998 (the "Completion Date") which date shall be extended by any period during which construction is interrupted by labour disputes or unavailability of construction materials through no fault of the Architect then additional services not included in the Architect's Services directly necessitated by the delay in construction shall be invoiced on a time basis at the rates set out in Schedule 'A' attached or as mutually agreed. There shall be no additicnal fee for any of the Architect's Services, the performance of which occurs after the Completion Date. 3. It is agreed Barry o Bryan Associates (1991) Limited letter dated October 24, 1997 forms part of this agreement attached as Schedule 'B' . This Agreement entered into as of the day and year first above written. Client The Corporation of the Municipality of (Taring on by Witness Architect Barry o Bryan Associates (1991) Limited by i Witness 5 Other Conditions of Services 1. It is agreed the lump sum fee identified in Item 4.6 does not include: a) Increase in the scope of work as required by the Municipality of Clarington RFP97-2 dated April 29, 1997. b) Disbursement charges for printing of documents for tender if not completed by the Municipality of Clarington. c) All costs for specialized materials inspection and testing. d) All costs for decommissioning of the septic system. e) All costs for storm water management. f) All costs for soils testing over the $2,000 allowance. g) Goods and Services Tax. 2. The fixed fee includes the Architect's Services set out in this contract, the Client's Request for Proposals RFP97-2 and the Architect's proposal dated May 14, 1997 (collectively the "Architect's Services") . If construction of the project is not completed by October 15, 1998 (the "Completion Date") which date shall be extended by any period during which construction is interrupted by labour disputes or unavailability of construction materials through no fault of the Architect then additional services not included in the Architect's Services directly necessitated by the delay in construction shall be invoiced on a time basis at the rates set out in Schedule 'A' attached or as mutually agreed. There shall be no additional fee for any of the Architect's Services, the performance of which occurs after the Completion Date. e This Agreement entered into as of the day and year first above written. Y Client The Corporation of the Municipality of ClAringtOn by Witness Architect Barry o Bryan Associates (1991) Limited by Witness ,,Jnpaid accounts shall bear interest at 2%per annum above the Bank 4.10 Interest Rate 30 days after the date that the invoice for fees, reimbursable expenses,and applicable taxes has been rendered by the Architect. (Federal and Provincial statues and regulations at the Client's and Architect's principal places of business, the location of the project and elsewbere may affect the validity of this provision.Speck legal advice should be obtained witb respect to deletion, modification, or other requirements sucb as written disclosures or waivers.) No deductions shall be made from amounts payable to the Architect 4.11 Deductions on 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 15 months * Refer to Article 5. 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 equitable adjustment. Hourly rates of fees in paragraphs 4.6 and 4.7 are subject to review and 4.w adjustment annually.grlislf,690 M: (Hef 4JiUa'rl d e tl flktf?�bf�i fib �f bk 6oCibk �hk�'Zlsk in the event that new or additional taxes in respect of the services 4.16 included in this Agreement are required by federal or provincial legis- lation after the Agreement is executed, the amount under this Agree- ment shall be adjusted to include such levies. Fees and reimbursable expenses may be subject to the Federal Goods and Services Tax.The Client shall pay to the Architect, together with and in addition to any fees and reimbursable expenses that become payable,any Goods and Services Taxes that become payable in relation to the fees and reimbursable expenses as required by legislation. The Architect shall maintain, by generally accepted accounting. 4.17 Accounting methods, records of reimbursable expenses, expenditures pertaining Records to the Architect's additional services and services for which the fee is computed as a multiple of direct personnel exoense. These records shall be available to the Client at mutually convenient times. Revision 1990 4.10,4.14 and 4.16 • ARCHITECT 11 Stanley Court BARRY o BRYAN . ENGINEER Whitby, Ontario L1N 8P9 ASSOCIATES (1991) LIMITED • PROJECT MANAGERS Telephone(905)666-5252 Fax(905)666-5256 GARNET B RICKARD RECREATION COMPLEX - N PAD Schedule `A' - Hourly Rates Project Manager $90.00/hour Sr. Project Architect $85.00/hour Sr. Project Design Engineers $85.00/hour Landscape Architect $52.00/hour Job Captains, Assistant Project Managers $70.00/hour Design Engineers $60.00/hour CAD Operators $55.00/hour A Sr. Cost Consultant $85.00/hour Jr. Cost Consultant $60.00/hour i Contract Administrators $55.00/hour I , Clerical $351hour 11 • ARCHITECT 11 Stanley Court BARRY • BRYAN . ENGINEER Whitby, Ontario L1N 8P9 ASSOCIATES 1991!! LIMITED • PROJECT MANAGERS Telephone(905)666-5252 _ 1 Fax(905)6665256 October 24, 1997 SCHEDULE 'B' Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1 C 3A6 Attention: Lou Ann Birkett, C.P.P., A.M.C.T. Purchasing Manager Re: CL 9727 Design Fees Garnet B. Rickard Recreation Complex -Twin Pad Our Project No. 97100 Dear Ms. Birkett: Further to our negotiations of,yesterday with Mr. Joe Caruana, we would like to submit this proposal for our additional costs related to the above project. This increase is due to the increased scope of work beyond the scope provided for in our initial proposal. As agreed, the increase in the cost of services will be $52,000,00. Our revised contract amount for design services will now be $210,000.00. This increase allows for the following adjustment to item 5.2, other conditions of services as stated in our contract amendment dated October 22, 1997. "In the event the construction period extends beyond one month following substantial completion for construction of September 15, 1998, additional contract administration services will be invoiced on an hourly basis at quoted rates or a mutually agreed amount.". We thank you for your consideration in this matter and look forward to assisting you in the completion of this project. Yours very truly, Denis O'Connell, Project Manager DOC/cb C.C. Mr. Joe Caruana, Director of Community Services 7100L2410-Fees.wpd