Instructions: B106™ – 2020, Standard Form of Agreement Between Owner and Architect for Pro Bono Services

 B106™ – 2020, Standard Form of Agreement Between Owner and Architect for Pro Bono Services

Synopsis.

AIA Document B106–2020 replaces B106-2010, a standard form of agreement between owner and architect for building design, construction contract administration, or other professional services provided on a pro bono basis. The architect’s pro bono services are professional services for which the architect receives no financial compensation other than compensation for reimbursable expenses. A table format is provided which the parties may use to designate the scope of the architect’s pro bono services and the maximum number of hours to be provided by the architect for each designated pro bono service. If the architect is providing construction phase services, B106–2020 is intended to be used in conjunction with AIA Document A201®–2017, General Conditions of the Contract for Construction, which incorporates by reference. For all document details and a record of changes, see the summary  »

 

Using B106-2020.

Cover Page.

Date. The date represents the date the agreement becomes effective. It may be, the date the agreement was originally submitted to the other party, the date authorizing action was taken, or the date of actual execution. Professional services should not be performed prior to the effective date of the agreement. 

Parties. Parties should be identified using the full 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, close 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.

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; and (4) the size, capacity or scope of the project, if known.

 

Article 1 – Initial Information

§ 1.1 The parties should provide initial information in Section 1.1, as applicable. The parties should take care to be as explicit and detailed as possible.

 

Article 2 – Architect’s Responsibilities

§ 2.3 Identify the representative who is authorized to act on the architect’s behalf for the project. 

§ 2.5 Section 2.5 contains a new provision where the parties may set forth the types and limits of insurance the architect is required to carry for the project. Specifically, B106-2020 lists general liability, automobile liability, workers’ compensation, and professional liability. In each prompt, the parties should insert the limits of insurance coverage that the architect is required to maintain.   

 

Article 3 – Scope of Architect’s Pro Bono Services

§ 3.1 The architect’s pro bono services are those for which the architect receives no financial or monetary compensation, other than those expenses listed in Section 9.4, Compensation for Reimbursable Expenses. The parties should review Section 9.4 prior to executing the agreement and, if necessary, list additional reimbursable expenses at Section 9.4.1.12.

§ 3.2 This section contains a table in which the parties must designate the pro bono services the architect has agreed to provide. The parties must complete the table prior to executing the agreement. For each service listed, the parties should indicate which the architect is responsible for providing by designating those services in the first column. In the second column, the parties must designate the associated maximum number of hours the architect may provide for each associated service. In the third column, the parties should indicate whether the description of each designated service is located in this section or within a separate exhibit, and the parties should identify such exhibit. The architect is not responsible for any listed service unless specifically designated in the responsibility column of the table. The parties may also designate the owner as being responsible for services listed in Section 3.2. 

§ 3.2.2 B106-2020 does not include a detailed scope of services for the architect’s traditional five phases of design, nor does it include the “cost of the work” section that is present in B101-2017. If the architect is going to provide those services pro bono, they must be selected in Section 3.2.2 and fully described in Section 3.3.

§ 3.2.4.16 Conformed Construction Documents are the construction documents modified to include any addenda issued during the bidding or negotiation process. 

§ 3.2.5.2 As-designed Record Drawings are the record of everything the architect designed for the project, and include the original construction documents plus all addenda, architect’s supplemental instructions, change orders, construction change directives, and minor changes in the work. 

§ 3.2.5.3 As-constructed Record Drawings (commonly called “As-builts”) are the record of the project as constructed based on information the contractor provides to the owner under the contract for construction. Because the as-constructed record drawings will be based on the contractor’s mark-ups, the architect is not responsible for accuracy or completeness.

§ 3.3 The parties should include a detailed description of each pro bono service in Section 3.3, unless that description is contained in an identified exhibit. The parties should include the associated number of meetings the architect may attend for each pro bono service designated as the architect’s responsibility within Section 3.2. Section 3.3 also establishes that if the architect will be providing construction phase services pursuant to Sections 3.2.2.5, those services will be in accordance with AIA Document A201–2017, General Conditions of the Contract for Construction, unless the parties specifically state otherwise.

§ 3.4 In accordance with Section 3.2, the parties must designate the maximum number of hours the architect may provide for each pro bono service listed. If the limit is exceeded, or if the architect anticipates that the maximum number of hours will be exceeded, the parties have three options: (1) renegotiate the maximum number of pro bono hours the architect has agreed to donate; (2) execute an amendment allowing the architect to receive financial compensation in addition to its reimbursable expenses; or (3) terminate this agreement in accordance with Section 8.4.

 

Article 4 – Additional Services

This section provides the parties with an opportunity to include additional services after executing the agreement. If the parties choose to include additional services on a pro bono basis, they must execute an amendment to this agreement. Also, if the architect will be compensated for additional services, the parties must execute an amendment to this agreement or enter into a separate agreement.  

 

Article 5 – Owner’s Responsibilities

§ 5.3 Identify the representative who is authorized to act on the owner’s behalf for the project 

§ 5.8 If the architect requests services of consultants that are necessary for the architect to perform its pro bono services, the owner must provide the consultants’ services. 

 

Article 6 – Copyrights and Licenses

In B106–2020, the architect and the architect’s consultants are deemed the authors and owners of their respective instruments of service, and they retain all common law and statutory rights, including copyright. 

 

Article 7 – Claims and Disputes

In AIA’s Conventional Family of documents, mediation is a condition precedent to any form of binding dispute resolution, but binding arbitration is not mandatory for disputes that fail to settle in mediation. Instead, the parties are required to select at Section 7.3.4 from three choices of binding dispute resolution: (1) arbitration, (2) litigation, or (3) another method that they must identify. In addition, in B106–2020, a meet and confer requirement is a condition precedent to mediation (see Section 7.2)

§ 7.1.4 Indemnification. B106–2020 contains a provision requiring the owner to indemnify the architect from claims made by third parties to the extent they are not directly caused by gross negligence or willful misconduct of the architect. The parties are cautioned to consult with legal counsel as to whether there are local anti-indemnity statutes or other statutes relevant to this provision.

§ 7.1.5. Limitation of Liability. A limitation of liability provision was added to B106–2010 and modified in B106-2020. The parties should carefully review this provision, insert the maximum amount or other necessary terms and conditions for limiting the architect’s liability under this agreement, and consult with legal counsel as to any special jurisdictional requirements for limitation of liability provisions. 

§ 7.2 Meet and Confer. This agreement requires a “meet and confer” session as a condition precedent to mediation.

§ 7.3 Mediation. Mediation remains a condition precedent to binding dispute resolution in Section 7.3.4.

§ 7.3.4 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.

 

Article 9 – Compensation

§ 9.1 This section recognizes that value derived from the architect’s professional services may not be strictly limited to “monetary compensation.” For recordkeeping purposes, the architect should record the number of hours donated throughout the project, for itself and its consultants, and provide updated totals to the owner. The parties must also insert any recognition or other types of compensation the owner agrees to provide, including the architect’s opportunity to present its work to any appropriate board of directors or board of trustees.

§ 9.2 Hourly billing rates for designated personnel might include salaries, benefits, overhead and normal profit. In Section 9.2, the architect should record its hourly billing rates for itself and its consultants.

Include the cumulative amount for salary, benefits, overhead and profit to fix each rate using words and numerals in the following insert: 

Compensation for services rendered by principals and employees shall be based upon the hourly billing rates set forth below: 

      1. Principals’ time at the fixed rate of ________ ($__) per hour. For the purposes of this agreement, the principals are: (List principals, such as owners, partners, corporate officers and participating associates.
      2. Supervisory time at the fixed rate of ________ ($__) per hour. For the purposes of this agreement, supervisory personnel include: (List managerial personnel by name or job title, such as general manager, department head or project manager.
      3. Technical Level I time at the fixed rate of ________ ($__) per hour. For the purposes of this agreement, Technical Level I personnel include: (List those personnel by name or job title who are highly skilled specialists, such as job captains, senior designers, senior drafters, senior planners, senior specifiers or senior construction administrators.
      4. Technical Level II time at the fixed rate of ________ ($__) per hour. For the purposes of this agreement, Technical Level II personnel include: (List those personnel by name or job title who hold intermediate-level positions relative to Technical Level II, such as professionals awaiting licensure and managers of clerical staff.
      5. Technical Level III and clerical personnel time at the fixed rate of ________ ($__) per hour. For the purposes of this agreement, Technical Level III and clerical personnel include: (List those personnel by name or job title who occupy junior-level positions, such as word processor or office assistant.
      6. Compensation for services rendered by consultants shall be based on a multiple of ________ (__) times the amounts billed by consultants.

§ 9.5.1 Insert the number of days after the date of the invoice after which the amount owed shall accrue interest. In the prompt below Section 9.5.1, insert the rate of monthly or annual interest agreed upon for late payments. 

 

Article 11 – Special Terms and Conditions

Insert any modifications to the standard text of the document, if the modifications are not otherwise inserted elsewhere in the document. For more information about modifying the document, refer to the modifications section of these Instructions. 

 

Notes.

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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