Summary: B109™–2020, Standard Form of Agreement Between Owner and Architect for a Multi-Family Residential or Mixed Use Residential Project

Content.

Synopsis

Purpose

Related documents

Changes from the previous edition

Dispute Resolution—Mediation and Arbitration

 

Synopsis.

AIA Document B109–2020 is a standard form of agreement between owner and architect for building design and construction contract administration for a multi-family residential or mixed-use residential project. B109–2020 contains terms and conditions that are unique to these types of projects. B109–2020 is based on AIA Document B103™–2017, Standard Form of Agreement Between Owner and Architect for a Large or Complex Project. AIA Document B109–2020 uses the traditional division of services, basic and additional services, but adds a pre-design services article that includes items such as assessment of project feasibility, layout, and regulatory. 

B109–2020 is not intended for use on residential projects that will include a residential condominium unless specifically set forth in the initial information. Otherwise, B109–2020 includes a representation by the owner that the project will not include a residential condominium. If B109–2020 is used for residential condominium projects, users should review and consider modifications. AIA Document B509™–2020, Condominium Projects Guide which includes a discussion of potential risks that may be inherent in residential condominium construction and offers model language for inclusion in B109–2020 to better allocate these risks. For use and execution of a document, see its instructions » 

 

Purpose.

AIA Document B109–2020 is a standard form of agreement between owner and architect for building design and construction contract administration for a multi-family residential or mixed-use residential project. B109–2020 contains terms and conditions that are unique to these types of projects. B109–2020 is a one-part document that is based on AIA Document B103–2017, Standard Form of Agreement Between Owner and Architect for a Large or Complex Project. AIA Document B109–2020 uses the traditional division of services, basic and additional services but adds a pre-design services scope of services. The pre-design services begin before the traditional basic services and includes assessment of project feasibility, layout, and regulatory requirements. Following pre-design services, basic services are based on five traditional phases: schematic design, design development, construction documents, bidding or negotiation, and construction. This document may be used with a variety of compensation methods, including percentage of construction cost and stipulated sum.

In B109–2020 the architect does not prepare cost estimates, but agrees to design the project to meet the owner’s budget for the cost of the work at the conclusion of the design development phase services. B109–2020 assumes that the owner will retain third parties to provide cost estimates and project schedules, and may implement fast-track, phased or accelerated scheduling. 

If the architect will provide cost estimates and will design the project to meet the owner’s budget for the cost of the work at the conclusion of the construction documents phase services, the parties should consider using B101™–2017, Standard Form of Agreement Between Owner and Architect.

 

Related Documents.

B109–2020 is intended to be used in conjunction with AIA Document A201®–2017, General Conditions of the Contract for Construction, which it incorporates by reference. B109–2020 also can be used with architect-consultant agreements such as AIA Document C401™–2017, Standard Form of Agreement Between Architect and Consultant. 

Before transmitting instruments of service or other information in digital form, parties should establish protocols for that transmission, in addition, if the parties are contemplating the use of Building Information Modeling, E203™–2013, Building Information and Digital Data Exhibit may be used.

 

Changes from the previous edition.

AIA Document B109-2020 revises AIA Document B109–2010 to reflect changes made in the 2017 update of AIA Document B103, as well as other revisions. It incorporates alterations proposed by architects, owners, and professional consultants. The following are some of the significant changes made to AIA Document B109–2020.

Throughout. References in B109-2020 to the general conditions refer specifically to A201-2017 and other references to AIA documents have been updated.

Table of Articles. The table of articles was modified to include the updated title for Article 5, which now includes supplemental and additional services.

Article 1 – Initial Information 

§ 1.1.1 This section was updated to include a more accurate and complete description of the owner’s program for the project.

§ 1.1.4 Funding Source. This section was added to allow the parties to identify the sources of public funding for the project, if any.

§ 1.1.8 This section was added to allow the parties to identify any sustainable objectives for the project. If the parties identify a sustainable objective, then they can incorporate AIA Document E204™–2017, Sustainable Projects Exhibit into their Agreement.

§ 1.1.11.5 The building envelope consultant was removed from the list of consultants retained by the owner, instead it is contained in Section 1.1.14.2. It is now considered an additional required consultant that can be retained by either the architect or the owner.

§ 1.1.14 Additional Required Consultants. This section was added to clarify that certain consultants are required for this type of project. Section 1.1.14 contains a table which the parties complete by selecting either the architect or the owner as the party who is responsible for retaining the consultant. If the parties do not make a selection for a particular consultant, then the owner is responsible for retaining that consultant. The consultants include: an accessibility consultant, a building envelope consultant, an acoustical consultant, a security consultant, a life safety consultant, and other required consultants.

§ 1.2 This section was modified to require the owner to adjust the owner’s budget for the cost of the work and any anticipated design and construction milestones to accommodate material changes in the Initial Information.

§ 1.3 This section was added to require the parties to agree upon protocols governing the transmission and use of instruments of service, or any other information or documents, in digital form. 

§ 1.3.1 This section was added to clarify that the use of, and reliance on, a building information model without agreement to protocols shall be at the using or relying party’s sole risk.

Article 2 – Architect’s Responsibilities 

§ 2.1 This section was expanded to include a certification by the architect that it is properly licensed in the jurisdiction in which the project is located. If the architect is not licensed in the jurisdiction in which the project is located, it shall cause its services to be performed by appropriately licensed design professionals.

§ 2.6.1 This section was modified to change the architect’s insurance requirement from obtaining comprehensive general liability to commercial general liability. The insurance requirement in this section and others was modified to eliminate the phrase “not less than” before the fill point for the insurance amount. This change was necessary due to the changes to the indemnification language in Section 9.1.3 and the addition of a limitation of liability in Section 9.1.6.

§ 2.6.2 In addition to other changes, the insurance requirement in this section was modified to eliminate the phrase “not less than” before the fill point for the insurance amount. This change was necessary due to the changes to the indemnification language in Section 9.1.3 and the addition of a limitation of liability in Section 9.1.6.

§ 2.6.3 This section was modified to clarify the parameters within which the architect may obtain and utilize a combination of primary and excess or umbrella liability insurance to achieve the required limits and coverage. A requirement was added to clarify that any excess policy shall not require the exhaustion of the underlying limits only through the actual payment by the underlying insurers.

§ 2.6.5 and § 2.6.6 In addition to other changes, the insurance requirements in these sections were modified to eliminate the phrase “not less than” before the fill point for the insurance amount. These changes were necessary due to the changes to the indemnification language in Section 9.1.3 and the addition of a limitation of liability in Section 9.1.6.

§ 2.6.7 Additional Insured Obligations. This new section requires the architect to cause its commercial general liability and automobile liability policies to include the owner as an additional insured. It requires the coverage to be primary and non-contributory to any of the owner’s insurance policies, and to apply to both ongoing and completed operations. Some of these requirements were previously included in Section 2.6.8 and, therefore, were removed from that section.

Article 3 – Pre-Design Services

§ 3.2 Prior section 3.2, which required the architect to review studies and initial information pertaining to the owner’s program for the project, was removed in its entirety.

§ 3.4 This section was modified to change the architect’s obligation from discussing the project’s proposed development to considering information provided by the owner and the owner’s consultants.

Article 4 – Scope of Architect’s Basic Services

§ 4.1 This section was modified to clarify that the architect’s basic services commence upon receipt of a written notice to proceed from the owner.

§ 4.2 Schematic Design Phase Services. This section was edited to clarify, among other things, the impact of schedule modifications and when, how, and with whose approval, such modifications shall occur. Some of these terms were included in prior Section 4.1.5, which was deleted in its entirety.

§ 4.2.3 The language regarding the architect’s inclusion of environmentally responsible design approaches in its evaluation was removed. This document now requires the owner to identify any sustainable objective for the project in the initial information. If the owner identifies a sustainable objective, the owner and architect will utilize AIA document E204-2017, Sustainable Objective Exhibit to identify the required services related to the sustainable objective. 

§ 4.3.4 This new section requires the creation of a list of critical building systems, elements, and components that require the preparation of visual and performance mock-ups. Additionally, the section requires the owner and architect to review such mock-ups and test in accordance with the standards set forth in the contract documents.

§ 4.5 Procurement Phase Services. The name of this section was changed from “Bidding or Negotiation Phase Services”.

§ 4.5.2.2 A requirement was added that the architect assist the owner by organizing and conducting the opening of bids, and documenting and distributing the bidding results.

§ 4.5.3.2.3 A requirement was added that the architect assist the owner by responding to prospective contractors’ questions.

§ 4.5.3.2.4 A requirement was added that the architect assist the owner by preparing a summary report of negotiations with prospective contractors.

§ 4.5.3.3 This section was modified to clarify that the architect’s consideration of requests for substitutions is now considered an additional service.

§ 4.6.3.1 The architect’s certification was expanded to include a certification that the contractor is entitled to payment in the amount certified.

§ 4.6.4.3 This section was modified to clarify the extent and impact of the architect’s review of the contractor’s shop drawings and other submittals.

§ 4.6.6.1.4 A requirement was added that the architect’s issuance of a final certificate for payment be based upon a final inspection indicating that, to the best of the architect’s knowledge, information, and belief, the work complies with the requirements of the contract documents.

Article 5 – Supplemental and Additional Services

§ 5.1.1 The parties now must designate either the owner or the architect as providing each of the supplemental services in the table under Section 5.1.1. Unless otherwise specifically addressed in this agreement, if neither the owner nor the architect is designated, the parties agree that the listed supplemental service is not being provided for the project.

§ 5.1.2 Description of Supplemental Services. In new Sections 5.1.2.1 and 5.1.2.2, the parties should provide a description of those supplemental services identified as the architect’s or owner’s responsibility, respectively.

§ 5.1.3 This new section clarifies that the architect will provide any of the owner’s sustainable objective’s as a supplemental service.

§ 5.2 Architect’s Additional Services. The list of additional services in Section 5.2.1 has been modified significantly. Some of the notable changes include: the elimination of services related to environmentally friendly design alternatives; the addition of editing previously prepared instruments of service to secure necessary entitlements; the addition of services necessitated by enactment of revisions of codes, laws, or regulations; and the addition of editing previously prepared instruments of service necessitated by official interpretations of codes, laws, or regulations that are either (a) contrary to specific interpretations by the applicable authorities having jurisdiction made prior to the issuance of the building permit, or (b) contrary to requirements of the instruments of service when prepared in accordance with the applicable standard of care.

§ 5.2.2.6 This section previously included as an additional service providing construction phase services 60 days after (1) the date of substantial completion or (2) the anticipated date of substantial completion identified in the initial information, was moved to new Section 5.2.4.

§ 5.2.5 This section was modified to include the receipt of a written notice to proceed from the owner as the starting point for the time frame within which the architect’s basic services are completed before the architect’s services are compensated as additional services.

Article 6 – Owner’s Responsibilities 

§ 6.1 The requirement in this clause that the owner provide the architect with information related to the architect’s lien rights has been moved to new Section 6.17.

§ 6.7 This new section designates the consultants and supplemental services as the owner’s responsibility.

§ 6.8 This new section requires the owner to fulfill its obligations related to any identified sustainable objectives.

§ 6.9 Requirement for the owner to furnish the services of a building envelope consultant was deleted. A building envelope consultant is now identified in Section 1.1.14.2 as an additional required consultant.

§ 6.13 This section was modified to require the owner to include the architect in all communications with the contractor that relate to or affect the architect’s services or professional responsibilities. The owner must now also promptly notify the architect of the substance of any direct communications with the contractor otherwise relating to the project.

Article 7 – Cost of the Work

§ 7.1 It was expanded to include the reasonable value of labor, materials, and equipment, donated to, or otherwise furnished by, the oOwner.

§ 7.2 The requirement that the owner’s budget for the cost of the work be adjusted throughout the project is no longer permissive. 

§ 7.3 This section was revised to permit the architect to revise the consultant’s cost estimates due to market conditions the architect could not reasonably anticipate.

§ 7.5 This section was modified to include the option for the owner to terminate in accordance with Section 10.5 if the estimate of the cost of the work at the conclusion of the design development phase exceeds the owner’s budget for the cost of the work.

Article 8 – Copyrights and Licenses

§ 8.1 The reference in this section to the establishment of protocols governing transmission of digital information was removed because such protocols are now specified in new Section 1.3.

§ 8.5 This new section explicitly specifies that the provisions of Article 8 survive termination of the agreement.

Article 9 – Claims and Disputes

Article 9 contains significant changes in the B109-2020. Specifically, an optional limitation of liability has been added in Section 9.1.6 and the architect’s indemnification obligation in Section 9.1.3 was modified to allow for the indemnification limit to match the optional limitation of liability in new Section 9.1.6.

§ 9.1.3 This section was modified to allow for the indemnification limit to match the optional limitation of liability in new Section 9.1.6. If the parties choose not to include a limitation of liability in Section 9.1.6 or if the limitation of liability in Section 9.1.6 is greater than the stated amount of the insurance coverage required of the architect under the agreement, then the indemnification obligation is limited to the stated amount of the insurance coverage required of the architect under the agreement. The indemnification obligation does not include a duty to defend.

§ 9.1.4 The owner’s indemnity obligation in Section 9.1.4 was modified to include an indemnity obligation for breach of the owner’s representation in Section 2.3 (the owner’s representation that the project shall not include a residential condominium). When referring to the extent of the owner’s indemnity obligation for damages, losses, and judgments, the phrase “but only to the extent they are” was removed from this section.

§ 9.1.6 This new section includes an optional limitation of liability in favor of the architect, its officers, employees, and consultants. If the parties choose to include a limitation of liability and that limitation of liability is less than the stated amount of insurance coverage required of the architect under the agreement, then the limitation of liability also limits the architect’s indemnity obligations under Section 9.1.3.

§ 9.4 This new section explicitly specifies that the provisions of Article 9 survive termination of the agreement.

Article 10 – Termination or Suspension

§ 10.6 This section was modified and combined with prior Section 10.7 to clarify the effect of an owner termination for convenience or an architect termination pursuant to Section 10.3 (architect termination due to owner suspension for more than 90 cumulative days).

§ 10.7 This new section allows for the parties to agree upon a termination fee to be paid to the architect in the event of an owner termination for convenience or an architect termination pursuant to Section 10.3 (architect termination due to owner suspension for more than 90 cumulative days).

§ 10.8 This new section clarifies that, unless expressly provided in the agreement, the agreement terminates one year from the date of substantial completion.

Article 11 – Miscellaneous Provisions

§ 11.3 This section was modified to clarify that in the event the owner assigns the agreement to a lender, the lender assumes the owner’s obligation to pay the architect payments due prior to the assignment.

§ 11.7 This section was modified to clarify that it survives termination of the agreement unless the owner terminates the agreement for cause.

§ 11.8 This section was modified, and new Section 11.8.1 was added, to clarify the effect of a party’s designation of information as “confidential” as well as the permissible disclosures of such information.

§ 11.9 This new section clarifies the effect of a finding that any provision of the agreement violates the law, is invalid, or unenforceable.

Article 12 – Compensation

In addition to other changes, since this agreement now includes supplemental and additional services, Article 12 has been modified to include amounts of, or bases for, compensation for both types of services.

§ 12.2 This section was modified to provide fill points for the parties to provide the architect’s compensation, which can be a stipulated sum, a percentage basis, or other method of compensation.

§ 12.3 This new section provides for an equitable adjustment to the architect’s stipulated sum for basic services and time schedules if the owner’s written notice to proceed is not received with a certain amount of time after the date of the agreement. The parties are prompted to complete a fill point for the appropriate amount of time.

§ 12.4 This section has been expanded to allow the parties to specify the amount of, or basis for, the architect’s compensation for consultants designated as the architect’s responsibility and for any sustainability services.

§ 12.7 The table in section 12.7 has been modified and now clarifies that basic services do not include compensation for pre-design services.

§ 12.8 This section, along with new Section 12.9, was modified to clarify the procedure for progress payments when the architect’s compensation is on a percentage basis.

§ 12.11.1.8 The list of reimbursable expenses was modified to require the owner’s prior written approval for reimbursement of the architect’s consultants’ expenses of professional liability insurance or the architect’s additional insurance coverage.

§ 12.11.1.11 This new section within the list of reimbursable expenses includes registration fees and other fees charged by the certifying authority or by other entities as necessary to achieve the sustainable objective.

§ 12.12 Architect’s Insurance. This section was modified to provide a fill point for the parties to list any additional insurance required by the agreement that are in addition to the types and limits the architect normally maintains, for which the owner reimburses the architect.

§ 12.13.1.2 This new section was added to provide a fill point for the parties to agree upon an initial payment to the architect for registration fees and other fees payable to the certifying authority related to a sustainability certification.

Article 14 – Scope of the Agreement

This article was modified to provide for updated references to other various aia documents and to provide check boxes for the parties to select if they are incorporating a sustainable projects exhibit or other exhibits into the agreement.

 

Dispute Resolution—Mediation and Arbitration. 

This document contains provisions for mediation and arbitration of claims and disputes. Mediation is a non-binding process but is mandatory under the terms of this agreement. Arbitration may be mandatory under the terms of this agreement. Arbitration is binding in most states and under the Federal Arbitration Act. In a minority of states, arbitration provisions relating to future disputes are not enforceable but the parties may agree to arbitrate after the dispute arises. Even in those states, under certain circumstances (for example, in a transaction involving interstate commerce), arbitration provisions may be enforceable under the Federal Arbitration Act.

The AIA does not administer dispute resolution processes. To submit disputes to mediation or arbitration or to obtain copies of the applicable mediation or arbitration rules, contact the American Arbitration Association at (800) 778-7879 or visit the website at adr.org.

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