AIA Document B161–2002 is designed to assist U.S. architects involved in projects based in foreign countries, where the U.S. architect is hired on a consulting basis for design services and the owner will retain a local architect in the foreign country.
The document is intended to clarify the assumptions, roles, responsibilities, and obligations of the parties; to provide a clear, narrative description of services; and to facilitate, strengthen, and maintain the working and contractual relationship between the parties.
Because of foreign practices, the term “owner” has been replaced with “client” throughout the document. Also, since it is assumed that the U.S. architect is not licensed to practice architecture in the foreign country where the project is located, the term “consultant” is used throughout the document to refer to the U.S. architect.
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Date. The date represents the date the Agreement becomes effective. It may be the date 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 of the document. Professional services should not be performed prior to the effective date of the Agreement.
Parties. Parties to this Agreement should be identified using the full addresses and legal names under which the Agreement will be executed, including a designation of the legal status of both parties. Where appropriate, a copy of the resolution authorizing the individual to act on behalf of the firm or entity should be attached. Other information, such as telephone numbers and electronic addresses, may also be added.
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 type and usage; and (4) the size, capacity or scope of the Project, if known.
Article 1 – Initial Information
The parties should complete each blank section following a prompting statement in this Article. If a statement is not applicable to the Project, the parties should insert a declaration to that effect in the blank following the statement. No spaces in Article 1 should be left blank.
In this Article, the parties describe or identify, if known at the time of the Contract’s execution, certain information and assumptions about the Project, such as the physical, legal, financial and time parameters, and key persons or entities connected with the Project.
§ 1.1.2 On projects where it is appropriate, include topographical descriptions and information about easements, rights of way and zoning as part of the site description.
§ 1.1.4 On projects where it is appropriate, include information regarding easements, rights of way and zoning as part of the pertinent legal information.
§ 1.2.3 It is assumed that the Cost Consultant is independent of the Client and Consultant and is knowledgeable about construction costs in the location of the Project.
Article 3 – Services Provided by the Client
The Local Architect may provide these services.
§ 3.5 Because the Consultant may not be familiar with local issues relating to the availability of labor or materials, the Consultant should not take responsibility for cost control issues.
Article 4 – Services of the Local Architect
Article 4 defines the essential terms relative to the responsibilities of the Local Architect. The Consultant is entitled to assume the Client has incorporated these terms into the Client’s Agreement with the Local Architect. This Article assures the services of the Local Architect are compatible with the Consultant’s services. It is important that the Local Architect is fluent in American English to (1) translate local regulations and codes for the Consultant and (2) to translate for the Consultant when meetings are not conducted in American English.
§ 4.2 The Client and Consultant should identify the individual who will translate documents for the Consultant’s review. Preferably, this person should be someone in the Client’s office who is fluent in American English.
§ 4.9 The Consultant needs to assure compatible technology for telecommunication and data transmissions among the Project team as well as computer software compatibility.
§ 4.10 Examples of other services required of the Local Architect include local transportation, residency permits, administrative support and logistical support.
Article 5 – Responsibilities of the Parties
This Article has been included concerning the parties’ relationship to each other and to others involved in the Project. The provisions relating to the Client’s responsibilities have been expanded upon to, among other things, require that the Client provide, upon written request, information necessary for the Consultant to give notice of and enforce lien rights, and to establish that the Client cannot significantly change the budget without a corresponding change in the Project scope and quality. The provisions relating to the Consultant’s responsibilities include provisions on confidentiality and conflicts of interests.
§ 5.2.2 The Consultant should be aware that the standard of care varies from country to country and that strict liability may be imposed on the Consultant in some countries. The Consultant should verify whether this is the case and, if so, how this will have an impact in its provision of services.
Article 6 – Terms and Conditions
§ 6.1.1 The Berne Convention Treaty in most, but not all, countries governs international copyright law.
§ 6.2 The Consultant should be aware that the concept of Change in Services is not standard practice in every country. In many jurisdictions it is customary for the Consultant’s fixed fee to include all changes in services.
§ 6.5.1 This Agreement assumes that United States laws and customs shall be the standard and that standard American English meanings shall govern if this Agreement is translated into another language.
§ 6.5.3 A time period is stated for the statute of limitations to bring certainty to the Agreement in the absence of applicable local law.
Article 7 – Payment to the Consultant
Payment is one of the most difficult issues in international work. It is recommended that a retainer equivalent to the Consultant’s projected fees for the first three to four months of the contract be established until the first payment has been received and to provide protection for payment of the final invoice. Further, a mechanism should be established for the transfer of funds. Currency fluctuation and exchange issues can be avoided by requesting that payments be made in U.S. dollars.
§ 7.4 The Consultant should explain the concept of Reimbursable Expenses to the Client, as in many jurisdictions this is not standard practice.
§ 7.12 The Consultant should obtain advice regarding the effect of foreign taxes and other monetary exchange and interest issues on its fees; the importation of its Instruments of Service into a foreign country; and the effect of overseas income on its local tax liability.
Article 8 – Definitions
The definitions in this Agreement are distinct from those in other AIA Contract Documents and should be carefully reviewed.
Exhibit B – Schematic Design/Design Development Services. This Exhibit describes the normal design disciplines included in the Agreement and contains provisions defining and describing Schematic Design Documents and Design Development Documents. If other design services are to be included in the Agreement, they may be designated and described in Exhibit E.
Exhibit D – Construction Procurement/Construction Services.
§ D.2.4.1 The Consultant may choose to perform this service from the Consultant’s home office.
Exhibit E – Consultant’s Services Matrix. This Exhibit is intended as a tool for allocating responsibilities and defining the schedules and deliverables for the Project. The use of this document is strongly recommended to facilitate the discussion between the Client and Consultant on the scope of services to be provided.
Exhibit F – Projected Travel Costs. Exhibit F should be used to establish project milestones, project costs, foreign travel and the number of trips required.
Exhibit G – Table of Hourly Rates. Exhibit G assumes a flat rate.
Executing the agreement.
Although this document may precede the execution of other contracts under which portions of the Work will be performed, it is recommended that all terms and conditions between all parties involved on the Project be shared previous to the commencement of the Work. Monetary terms associated with individual contracts between the Client and Consultant or the Client and Local Architect may be blocked out, but information and knowledge regarding the scope of the Work and each party’s expected portion thereof are crucial to the sound completion of any project involving multiple parties.
Persons executing AIA Document B161–2002 should indicate the capacity in which they are acting 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.
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.
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