Instructions: A133™–2009 SP, Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price, for use on a Sustainable Project

Synopsis. 

AIA Document A133–2009 SP is based on AIA Document A133™–2009, Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price, with modifications that address the risks, responsibilities, and opportunities unique to projects involving substantial elements of sustainable design and construction (sustainable projects).

A133–2009 SP is intended for use on sustainable projects where a construction manager, in addition to serving as adviser to the owner, assumes financial responsibility for construction of the project. 

The document divides the construction manager’s services into two phases: the preconstruction phase and the construction phase, portions of which may proceed concurrently in order to fast track the process. AIA Document A133–2009 SP is coordinated for use with AIA Documents A201®–2007 SP, General Conditions of the Contract for Construction, and B103™–2007 SP, Standard Form of Agreement Between Owner and Architect for a Large or Complex Sustainable Project.

For document details and a record of changes, see the summary » (This document has been retired)

 

Using A133–2009 SP.

Cover Page

Date. The date represents the date the Agreement becomes effective. It may be the date that an oral agreement was reached, the date the Agreement was originally submitted to the other party, the date authorizing action was taken or the date of actual execution.

Parties. Parties to this Agreement should be identified using the full address and legal name under which the Agreement is to be executed, including a designation of the legal status of both parties (sole proprietorship, partnership, joint venture, unincorporated association, limited partnership or corporation [general, limited liability, closed or professional], etc.). Where appropriate, a copy of the resolution authorizing the individual to act on behalf of the firm or entity should be attached. Other information may be added, such as telephone numbers and electronic addresses.

Project. The proposed Project should be described in sufficient detail to identify (1) the official name or title of the facility; (2) the location of the site, if known; (3) the proposed building usage; (4) the size, capacity or scope of the Project, if known; and (5) the anticipated Sustainable Objective.

Architect. As in the other AIA Contract Documents, the Architect’s full legal or corporate title should be used.

Article 4 – Compensation and Payments for Preconstruction Phase Services

§ 4.1.2 Sample language is provided below for describing three methods of computing compensation.

Stipulated Sum:

Compensation shall be the stipulated sum of ________ ($__), plus the following reimbursable cost items:

Multiple of Direct Personnel Expense:

Compensation shall be based on a multiple of ________ (__) times Direct Personnel Expense (as defined in Section 4.1.4) of Construction Manager’s personnel, plus the following reimbursable cost items:

Actual Cost:

Compensation shall be based on actual costs incurred in the performance of the Preconstruction Phase services. (A maximum cost may be established.)

§ 4.1.3 Insert the number of months beyond which the Construction Manager’s compensation shall be adjusted.

§ 4.2.2 Insert the number of days within which payment is due after the receipt of the Construction Manager’s invoice by the Owner. If the rate of interest on late payments is to be different from the legal rate, insert the agreed-upon rate of interest.

Article 5 – Compensation for Construction Phase Services

The Construction Phase commences upon the Owner’s acceptance of the Construction Manager’s Guaranteed Maximum Price Proposal or when the Owner issues a Notice to Proceed (whichever occurs earlier), and the Construction Manager will be compensated for its actual costs, as defined in Section 6.1.1, plus the Construction Manager’s Fee, subject to the Guaranteed Maximum Price.

§ 5.1.1 Enter the method used for determining the Construction Manager’s Fee (lump sum, percentage of Cost of the Work or other method).

§ 5.1.2 Explain how the Construction Manager’s Fee will be adjusted for changes in the Work.

§ 5.1.3 If there will be a limitation placed on Subcontractors’ overhead and profit, enter the amount or explain how the limitation will be calculated.

§ 5.1.4 Enter the percentage cap that will be used to determine the rental rates for Construction Manager-owned equipment.

§ 5.1.5 Identify unit prices and state quantity limitations, if any, to which the unit price will be applicable.

§ 5.2.1 Insert specific provisions if the Construction Manager is to participate in any savings when the final Contract Sum is below the Guaranteed Maximum Price.

Article 7 – Payments for Construction Phase Services

§ 7.1.2 Insert the time period covered by each Application for Payment if it differs from the one given.

§ 7.1.3 Insert the time schedule for presenting Applications for Payment, and indicate due dates for making progress payments.

The last day upon which Work may be included in an Application should normally be no less than 14 days prior to the payment date, in consideration of the seven days required for the Architect’s evaluation of an Application and issuance of a Certificate for Payment and the time subsequently accorded the Owner to make Payment in Article 9 of A201–2007 SP. The Construction Manager may prefer a few additional days to prepare the Application.

Insert the day of the month on which progress payments are due, indicating whether such day is to be in the same or the following month after receipt by the Architect of the relevant Application for Payment. (The amount of time should be not less than ten days, as provided in Article 9 of A201–2007 SP, to allow sufficient time to process the payment applications.)

Due dates for payment should be acceptable to both the Owner and Construction Manager. They should allow sufficient time for the Construction Manager to prepare an Application for Payment, for the Architect to certify payment, and for the Owner to make payment. They should also be in accordance with time limits established by this Article and Article 9 of A201–2007 SP.

§ 7.1.7.3 Indicate the percent retainage, if any, to be withheld when computing the amount of each progress payment.

The Owner frequently pays the Construction Manager the bulk of the earned sum when payments fall due, retaining a percentage to ensure faithful performance. These percentages may vary with circumstances and localities. The AIA endorses the practice of reducing retainage as rapidly as possible, consistent with the continued protection of all affected parties. See AIA Document A503–2017/2019, Guide for Supplementary Conditions, for a complete discussion.

§ 7.1.7.4 Insert the percent to be retained from Work the Construction Manager self-performs.

§ 7.2.1 Insert the date by which Owner shall make final payment, if it differs from the one stated.

When final payment is requested, the Architect should ascertain that all claims have been settled or should define those which remain unsettled. The Architect should obtain the Construction Manager’s certification required by Article 9 of A201–2007 SP and must determine that, to the best of the Architect’s knowledge and belief and according to the Architect’s final inspection, the requirements of the Contract have been fulfilled.

Article 9 – Dispute Resolution

§ 9.2 Select from three choices of binding dispute resolution: (1) arbitration, (2) litigation or (3) another method that the parties must identify. Other types of dispute resolution include a dispute resolution board or a mini-trial. For additional information about other methods of dispute resolution, refer to The Construction Industry’s Guide to Dispute Avoidance and Resolution or visit adr.org for more information.

§ 9.3 In this section, the Owner and Construction Manager may identify an Initial Decision Maker to render initial decisions on claims arising from or relating to the Construction Manager’s Construction Phase services. If the parties do not identify an Initial Decision Maker, then the Architect will provide initial decisions. For claims arising from or relating to the Construction Manager’s Preconstruction Phase services, no decision by the Initial Decision Maker shall be required as a condition precedent to mediation and binding dispute resolution.

Article 11 – Miscellaneous Provisions

§ 11.5 Insert other contract provisions here.

Article 12 – Scope of the Agreement

A detailed enumeration of all Contract Documents must be made in this article. List additional documents in Section 12.2.5 that will form part of the Agreement.

Exhibit A – Guaranteed Maximum Price Amendment

This Amendment will typically be completed by the Construction Manager in accordance with Section 2.2, prior to the conclusion of the Preconstruction Phase.

§ A.1.1.1 Insert a Guaranteed Maximum Price for the Cost of the Work and the Construction Manager’s Fee.

§ A.1.1.2 Insert an itemized statement of the Guaranteed Maximum Price organized as instructed or reference an attachment with such information.

§ A.1.1.3 Identify any alternates described in the Contract Documents and accepted by the Owner. If decisions on alternates are to be made subsequent to execution of the Guaranteed Maximum Price Amendment, attach a schedule showing the amount of each alternate and the date it expires.

§ A.1.1.4 Identify and state the amounts of any allowances.

§ A.1.1.5 State any assumptions on which the Guaranteed Maximum Price is based.

§ A.1.1.9 Identify the document or documents that comprise the Sustainability Plan by title, date, and number of pages, and include other identifying information.

 

Executing the agreement.

The persons executing AIA Document A133–2009 SP should indicate the capacity in which they are acting (i.e., president, secretary, partner, etc.) and the authority under which they are executing the Agreement. Where appropriate, a copy of the resolution authorizing the individual to act on behalf of the firm or entity should be attached.

Executing the Amendment. This Amendment should be executed by the same parties who signed the original Agreement, or their designated successors. Any formalities to indicate the authority of the signatories which were done for the original Agreement should also be carried out for this Amendment.

 

Important.

Modifications. Particularly with respect to professional or contractor licensing laws, building codes, taxes, monetary and interest charges, arbitration, indemnification, format and font size, AIA Contract Documents may require modification to comply with state or local laws. Users are encouraged to consult an attorney before completing or modifying a document.

Reproductions. This document is a copyrighted work and may not be reproduced or excerpted from without the express written permission of the AIA. There is no implied permission to reproduce this document, nor does membership in The American Institute of Architects confer any further rights to reproduce this document. For more information, see the document footer and the AIA Contract Documents® Terms of Service.

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