Summary: B108™–2009, Standard Form of Agreement Between Owner and Architect for a Federally Funded or Federally Insured Project

Content.

Synopsis

Purpose

Related documents

Changes from the previous edition

Dispute Resolution—Mediation and Arbitration

 

Synopsis.

AIA Document B108–2009 is a standard form of agreement between Owner and Architect for building design and construction contract administration that is intended for use on federally funded or federally insured projects. B108–2009 was developed with the assistance of several federal agencies and contains terms and conditions that are unique to federally funded or federally insured projects. B108 sets forth five traditional phases of basic services: schematic design, design development, construction documents, bidding or negotiation, and construction. Two other types of services are delineated in the document: optional services and additional services. B108 is structured so that either the owner or the architect may be the entity providing cost estimates. For use and execution of a document, see its instructions  »

 

Purpose. 

The Architect’s Basic Services in B108–2009 are based on five traditional phases: Schematic Design, Design Development, Construction Documents, Bidding or Negotiation, and Construction. Two other types of services are delineated in the document: Optional Services and Additional Services. Optional Services are services that are in addition to Basic Services, are agreed upon when B108–2009 is executed, and for which compensation is included in the Architect’s fee along with compensation for Basic Services. Additional Services are services that arise after execution of the Agreement and for which the Owner assumes responsibility. Federal funding or federal insurance may not be available for the Architect’s Additional Services.

B108–2009 is structured so that either the Owner or the Architect may be the entity providing cost estimates. B108–2009 provides a check-box format in the Initial Information for the parties to specify whether the Owner or the Architect will provide cost estimates. The duties associated with providing cost-estimating services are set forth in Article 6.

B108–2009 was developed with the assistance of several federal agencies and contains terms and conditions that are unique to federally funded or federally insured projects. B108–2009 may not contain all of the specific provisions required by each federal agency. Users of B108–2009 should consult with the relevant federal agency and coordinate this document with any agency-required guides, supplemental conditions, or forms.

 

B108–2009 is intended to be used in conjunction with AIA Document A201®–2017, General Conditions of the Contract for Construction, which it incorporates by reference. B108–2009 also can be used with architect-consultant agreements, such as AIA Document C401™–2017. Before transmitting Instruments of Service or other information in digital form, parties should establish protocols for that transmission and may use E203™–2013, Building Information Modeling and Digital Data Exhibit, for that purpose.

 

Changes from the previous edition.

AIA Document B108–2009 contains many significant changes in format and content from B181™–1994. B108–2009 arranges the Architect’s services in terms of “Basic Services,” “Optional Services,” and “Additional Services.” Basic Services are described within the five traditional phases of the Project: Schematic Design, Design Development, Construction Documents, Bidding or Negotiating, and Construction. Optional Services are services that are in addition to Basic Services, are agreed upon when B108–2009 is executed, and are included in the Architect’s fee. Additional Services are services that arise after execution of the Agreement and for which the Owner assumes responsibility for compensating the Architect if federal funding or federal insurance is not available for that portion of the Architect’s services.

There are many other changes to foster clarity in the B108 Owner-Architect agreement as well. Described below are highlights of major changes in B108–2009, Standard Form of Agreement Between Owner and Architect for a Federally Funded or Federally Insured Project.

Cost Estimates. B108–2009 is structured so that either the Owner or the Architect may be the entity providing cost estimates. B108–2009 provides a check-box format in the Initial Information at Section 1.2 for the parties to specify whether the Owner or the Architect will provide cost estimates. The duties associated with providing cost-estimating services are set forth in Article 6.

Standard of Care. B108–2009 contains a provision at Section 2.2 stating the applicable standard of care under which the Architect shall perform its services.

Architect’s Insurance Requirements. Section 2.5 contains a provision wherein the parties may set forth the types and limits of insurance the Architect is required to carry for the Project. Specifically, B108–2009 lists General Liability, Automobile Liability, Worker’s Compensation, and Professional Liability.

Environmentally Responsible Design. During Schematic Design, Section 3.2.5.1 requires the Architect to consider environmentally responsible design alternatives, such as material choices and building orientation, in developing a design for the Project. The Architect is required to make such considerations consistent with the Owner’s program, schedule, and budget for the Cost of the Work.

Copyright and Licensing of the Instruments of Services. In B108–2009, as in B181–1994, 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. In B108–2009, however, the license granted to the Owner to use the Instruments of Services has been substantially revised. Under B108–2009, the Owner receives a license to use the Instruments of Service solely and exclusively for constructing, using, maintaining, altering and adding to the Project. This license will only terminate if the Architect rightfully terminates the Agreement for cause due to the Owner’s default. In the absence of such a termination by the Architect, the Owner retains the license to use the Instruments of Service after completion of the Project or the Owner’s termination of the Agreement. If the Owner subsequently uses the Instruments of Services without retaining the author of the Instruments of Service, the Owner agrees to release and indemnify the Architect for such uses. If the Owner rightfully terminates the Agreement for cause, however, the Owner is not required to release and indemnify the Architect for its further use of the Instruments of Service. If the Owner terminates the Agreement for its convenience, or the Architect terminates the Agreement due to the Owner’s suspension of the Project, B108 provides at Section 11.6 for the Owner to pay a licensing fee to the Architect for the Owner’s continued use of the Architect’s Instruments of Service.

Binding Dispute Resolution. In the AIA A201–2007 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 8.2.4 from three choices of binding dispute resolution: (1) arbitration, (2) litigation or (3) another method that they must identify.

Reimbursable Expenses. B108–2009 contains additional language in Section 11.5.2 to specify that the Owner is responsible for compensating the Architect for reimbursable expenses regardless of whether federal funding or federally guaranteed insurance is available.

 

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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