Instructions: C404™–2021, Standard Form of Agreement Between Contractor and Consultant for Delegated Design Services

Synopsis.

AIA Document C404™-2021 is a standard form agreement where a contractor can hire a consultant to perform delegated design services on a project. The terms “contractor” and “consultant” are intentionally flexible, as numerous parties in a project could hire someone, or be hired, to perform delegated design services. The “contractor” could be a general contractor, construction manager, or subcontractor, whereas the “consultant” should be a design professional who is properly licensed to perform the design services described in the C404-2021 agreement.

Delegated design describes a form of design collaboration where the contractor assumes responsibility for an element or portion of a project’s design. Delegated design is commonly used for the design of retaining walls, trusses, mechanical systems, fire suppression systems, curtain walls, and many other building components. Given this, C404-2021 is a flexible agreement that allows the parties to define the portion of the design that will be performed by the consultant.

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Completing C404–2021.

Cover Page

Date. The date represents the date the Agreement becomes effective. It may be the date an original oral agreement was reached, the date the Agreement was originally submitted to the Contractor or Consultant, 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 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. The Consultant’s trade or discipline should be described in the appropriate prompt and identifying information about the Consultant’s Designated Representative should be provided.

Prime Contract. If there is a Prime Contract, to which the C404-2021 is a subcontract, provide the applicable information about that Prime Contract in the prompt on the cover page. For example, if the C404-2021 is being used by a contractor to hire a design professional (as the consultant) to provide delegated design services, the Prime Contract would be the contract between the owner and the contractor.

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; (3) the proposed building usage; and (4) the size, capacity or scope of the Project.

Article 1   General Provisions

§ 1.2 Portion of the Project. Insert a detailed description of This Portion of the Project, which is the part or piece of the Project for which the Consultant will provide its services under this Agreement. This Portion of the Project is typically described as all services pertaining to a particular component or element of the Project, but it may be further limited to services rendered for a particular phase or geographic area of the Project. The actual services that the Consultant will provide for This Portion of the Project are set forth in Section 3.1.

§ 1.5 Contractor’s Representative. Insert the name and address of the Contractor’s authorized representative.

§ 1.6 Consultant’s Representative. Insert the name and address of the Consultant’s authorized representative.

Article 2   Consultant’s Responsibilities

§ 2.12 Consultant’s Insurance Requirements. Insert the types and limits of insurance the Consultant is required to carry for performance of the delegated design services. Specifically, C404-2021 lists General Liability, Automobile Liability, Professional Liability, and Employer’s Liability.

Article 3   Scope of Consultants Services

The scope of a consultant’s delegated design services can vary greatly, depending on the expertise of the consultant and needs of the project. Thus, Article 3 of C404-2021 allows the parties to insert a description of the delegated design services or identify an exhibit that contains such a description.

Article 7   Claims and Disputes

§ 7.2.3 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 free online at www.adr.org.

Article 8   Termination or Suspension

§ 8.1.1.1 Identify the termination fee, if any, that the Contractor would pay to the Consultant in the event of a termination not due to the fault of the Consultant (e.g. termination by the Contractor for its convenience or if the Consultant terminates because of an extended suspension of the Project).

§ 8.1.1.2 Identify the licensing fee, if any, that the Contractor would pay to the Consultant in the event of a termination not due to the fault of the Consultant (e.g. termination by the Contractor for its convenience or if the Consultant terminates because of an extended suspension of the Project) if the Contractor intends to continue using the Consultant’s Instruments of Service on the Project.

§ 8.1.2.1 Identify the termination fee, if any, that the Contractor would pay to the Consultant in the event the Contractor’s Client terminates the Prime Contract. The termination fee is contingent on the Contractor’s entitlement to, and receipt of, a termination fee from the Contractor’s Client.

§ 8.1.2.2 Identify the licensing fee, if any, that the Contractor would pay to the Consultant in the event the Contractor’s Client terminates the Prime Contract and the Contractor’s Client intends to continue using the Consultant’s Instruments of Service. The licensing fee is contingent on the Contractor’s entitlement to, and receipt of, a licensing fee from the Contractor’s Client.

Article 10   Compensation

A detailed discussion of compensation methods can be found in the Instructions to AIA Document B101®–2017, Standard Form of Agreement Between Owner and Architect.

§ 10.1 See methods of compensation referenced above.

§ 10.2 See methods of compensation referenced above.

§ 10.3 See methods of compensation shown above for Section 10.1, if other than a percentage of the invoiced amount.

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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