Project Agreement between Nonprofit Church Corporation and Architect

Project Agreement

Project Agreement between , a , and Architect .

Agreement made on the , between , a Nonprofit Church Corporation, organized and existing under the laws of the state of , with its principal office located at , , referred to herein as Owner, and , of , referred to herein as Architect.

For and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the parties agree as follows:

I. General Services of Architect. Architect agrees to perform professional services in connection with the Project (the Project) described in this Agreement. Architect will serve as Owner's professional architectural representative in those phases of the Project to which this Agreement applies, and will give consultation and advice to Owner during the performance of his services under this Agreement.

II. Preliminary Report Phase. During the preliminary report phase Architect will:

A. Consult with Owner to determine Owner's requirements for the Project.

B. Advise Owner as to the necessity of its providing or obtaining services from others of the types described in Section IX of this Agreement and act as Owner's representative in connection with any such services.

C. Prepare a preliminary architectural study and report on the Project, in sufficient detail to indicate clearly the problems involved and the alternate solutions available to Owner, to include schematic layouts and sketches and a general cost estimate for the Project, and to set forth Architect’s recommendations.

D. Furnish copies of the above study and report.

III. Preliminary Design Phase. After written authorization to proceed with the preliminary design phase, Architect will:

A. Advise Owner as to the necessity of his obtaining further services from others of the types described in Section IX of this Agreement and act as Owner's representative in connection with any such services.

B. On the basis of the approved preliminary architectural study and report and the data obtained as a result of such further services, prepare preliminary design documents consisting of design criteria, drawings, and outline specifications to develop and establish a scope of the Project.

C. Prepare a revised cost estimate for the Project based on the information given in the preliminary design documents.

D. Furnish copies of the above preliminary design documents and cost estimate.

IV. Final Design Phase. After written authorization to proceed with the final design phase, Architect will:

A. On the basis of the approved preliminary design documents, prepare for incorporation in the contract documents, detailed drawings, and plans to show the character and scope of the work to be performed by Contractors on the Project (the drawings), and instructions to bidders, general conditions, special conditions, and technical provisions (the specifications).

B. Furnish to Owner architectural data for and assist in the preparation of the required documents so that Owner may secure approval of such governmental authorities as have jurisdiction over design criteria applicable to the Project.

C. Advise Owner of any adjustment of the cost estimate for the Project caused by changes in scope, design requirements, or construction costs, and furnish a revised cost estimate for the Project based on the completed drawings and specifications.

D. Prepare proposal forms and notice to bidders and assist in the preparation of the contract documents.

E. Furnish copies of the drawings and specifications in final form.

V. Bidding or Negotiating Phase. After written authorization to proceed with the bidding or negotiating phase, Architect will:

A. Assist Owner in obtaining and evaluating bids or negotiating proposals and preparing construction contracts.

B. Consult with Owner concerning, and participate in all decisions as to, the acceptability of subcontractors and other persons and organizations proposed by the general contractor for those portions of the work as to which such acceptability is required by the bidding documents.

C. The bidding and negotiating phase shall terminate on commencement of the construction phase, or on cessation of negotiations with contractors (except as may otherwise be required to complete the services called for in Section XVI of this Agreement).

VI. Construction Phase. The construction phase will commence with the award of the construction contract and will terminate on written approval of final payment of Architect. During the construction phase the Architect will:

A. Advise and consult with Owner and act as his representative as provided in a document, which is to be identified, attached to, and made a part of this Agreement. The extent and limitations of the duties, responsibilities, and authority of Architect as assigned in such document shall not be modified without Architect’s prior, express, and written consent. All of Owner's instructions to Contractor shall be issued through Architect who shall have authority to act on behalf of Owner to the extent provided in such document except as otherwise provided in writing.

B. Make periodic visits to the site to observe the progress and quality of the executed work and to determine in general if the work is proceeding in accordance with the contract documents. He will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the work. He will not be responsible for the construction means, methods, techniques, sequences, or procedures or the safety precautions incident to such work. His efforts will be directed toward providing assurance for Owner that the completed Project will conform to the requirements of the contract documents, but he will not be responsible for the Contractor's failure to perform the construction work in accordance with the contract documents. During such visits and on the basis of his on-site observations as an experienced and qualified design professional, he will keep Owner informed of the progress of the work, will endeavor to alert Owner to defects and deficiencies in the work of the Contractor, and may disapprove or reject work as failing to conform to the contract documents.

C. Review and approve shop drawings, diagrams, illustrations, brochures, catalog data, schedules and samples, the results of tests and inspections and other data that the Contractor is required to submit, but only for conformance with the design concept of the Project and compliance with the information given in the contract documents. He will also assemble maintenance and operating instructions, schedules, guarantees, bonds, and certificates of inspection as required by the contract documents.

D. Issue all instructions of Owner to the Contractor and prepare routine change orders as required. He may, as Owner's representative, require special inspection or testing of the work, whether or not fabricated, installed, or completed. He will act as interpreter of the terms and conditions of the contract documents and judge of the performance under such terms and conditions by Owner and the Contractor and will make decisions on all claims of Owner and the Contractor relating to the execution and progress of the work and all other matters and questions related to such work, but he shall not be liable for the results of any such interpretations or decisions rendered by him in good faith.

E. Based on his on-site observations as an experienced and qualified design professional and on his review of the Contractor's applications for payment and supporting data, he will determine the amount owing to the Contractor and approve in writing payment to the Contractor in such amounts. Such approvals of payment shall constitute a representation to Owner, based on such observations and review, that the work has progressed to the point indicated and that, to the best of his knowledge, information, and belief, the quality of the work is in accordance with the contract documents (subject to an evaluation of the work as a functioning Project upon substantial completion, to the results of any subsequent tests called for in the contract documents and to any qualifications stated in his approval), but by approving an application for payment he shall not be deemed to have represented that he has made any examination to determine how or for what purposes the Contractor has used the moneys paid on account of the contract price.

F. Conduct an inspection to determine if the Project is substantially complete and a final inspection to determine if the Project has been completed in accordance with the contract documents and the Contractor has fulfilled all of his obligations under such contract documents so that Architect may approve, in writing, final payment to the Contractor.

G. Architect shall not be responsible for the acts or omissions of the Contractor, any subcontractor, or any of the Contractor's or subcontractor's agents or employees or any other person performing any of the work under the construction contract.

VII. Additional Services of Architect. If authorized in writing by Owner, Architect will furnish or obtain from others additional services of the following types, which will be paid for by Owner as indicated in Sections XI, XII, and XIII of this Agreement:

A. Preparation of applications and supporting documents for governmental grants, loans, or advances in connection with public works projects.

B. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawing or other information furnished by Owner.

C. Additional services due to significant changes in general scope of the Project or its design including, but not limited to, changes in size, complexity, or character of construction.

D. Preparation of renderings of models for Owner's use.

E. Revision of previously approved studies, reports, design documents, drawings, or specifications, when such revisions are due to causes beyond the control of Architect.

F. Preparation of documents for alternate bids requested by Owner for work that is not executed or of documents for out-of-sequence work.

G. Investigations involving detailed consideration of operations, maintenance, and overhead expenses; and the preparation of rate schedules, earnings, and expense statements, feasibility studies, appraisals and valuations; detailed quantity surveys of material and labor; and material audits or inventories required for certification of force account construction performed by Owner.

H. Furnishing of services of special consultants for other than the normal Architecting services incident to the Project.

I. Additional services resulting from the Project involving more than one general construction contract, or separate construction contracts for different building trades, or separate equipment contracts.

J. Services in connection with change orders to reflect changes initiated by Owner if the resulting change in compensation for basic services is not commensurate with the services rendered.

K. Services necessitated by out-of-town travel required of Architect other than visits to the Project site as required by this Agreement.

L. Preparation for Owner, on request, of a set of reproducible record prints of drawings showing those changes made during the construction process, based on the marked up prints, drawings, and other data furnished by the Contractor to Architect and which Architect considers significant.

M. Additional or extended services during construction made necessary by:

1. Work damaged by fire or other cause during construction;

2. A significant amount of defective or neglected work of the Contractor;

3. Prolongation of the construction contract time by more than days;

4. Acceleration of the work schedule involving services beyond normal working hours; and

5. Default by Contractor under the construction contract.

N. Preparation of operating and maintenance manuals; extensive assistance in the use of any equipment or system (such as initial start-up, testing, adjusting, and balancing); and training personnel for operation and maintenance.

O. Services or consultation after completion of the construction phase, such as frequent inspections during any guarantee period and reporting of observed discrepancies under guarantees called for in the construction contract.

P. Preparation to serve or serving as a witness for Owner in any litigation or other proceeding involving the Project.

Q. Additional services in connection with the Project, including services not otherwise provided for in this Section.

VIII. Resident Services during Construction.

A. If requested by Owner or recommended by Architect and approved in writing by the other, one or more full-time resident project representatives will be furnished and directed by Architect in order to provide more extensive representation at the Project Site during the construction phase. Such resident Project representation will be paid for by Owner as indicated in Paragraph B of Section XI of this Agreement.

B. The duties and responsibilities and the limitations on the authority of the resident project representative shall be set forth in Exhibit A which is to be identified, attached to, and made a part of this Agreement before such services begin.

C. Through the more continuous on-site observations of the work in progress and field checks of materials and equipment by the resident project representative (if one is to be furnished), Architect will endeavor to provide further protection for Owner against defects and deficiencies in the work, but the furnishing of such resident Project representation shall not make Architect responsible for the Contractor's failure to perform the construction work in accordance with the contract documents.

IX. Owner’s Responsibilities. Owner's responsibilities in connection with the Project shall be as follows:

A. Provide full information as to its requirements for the Project.

B. Assist Architect by placing at his disposal all available information pertinent to the site of the Project including previous reports and any other data relative to design and construction of the Project.

C. Furnish Architect with property, boundary, right of way, topographic and utility surveys; core borings, probings and subsurface explorations; hydrographic surveys, laboratory tests, and inspections of samples and materials, and other special consultations not covered in Section VII of this Agreement, all of which Architect may rely on in performing his services under this Agreement.

D. Guarantee access to and make all provisions for Architect to enter on public and private lands as required for him to perform his services under this Agreement.

E. Examine all studies, reports, sketches, estimates, specifications, drawings, proposals, and other documents presented by Architect and render in writing decisions pertaining to such matters within a reasonable time so as not to delay the work of Architect.

F. Advertise for proposals from bidders, open the proposals at the appointed time and place, and pay for all costs incident to such advertising and opening.

G. Provide such legal, accounting, and insurance counseling services as may be required for the Project, and such auditing service as Owner may require to ascertain how or for what purpose the Contractor has used the money paid to him under the Construction Agreement.

H. Designate in writing a person to act as Owner's representative with respect to the work to be performed under this Agreement. Such person shall have complete authority to transmit instructions, receive information, interpret and define Owner's policies and decisions with respect to materials, equipment elements, and systems pertinent to the work covered by this Agreement.

I. Give prompt written notice to Architect whenever Owner observes or otherwise becomes aware of any defect in the Project.

J. Obtain approval of all governmental authorities having jurisdiction over the Project and such approvals and consents from such other individuals or bodies as may be necessary for completion of the Project.

K. If the Project involves more than one general contract, or separate construction contracts for different building trades or separate equipment contracts, ensure that the general conditions of all such contracts are substantially identical.

L. Furnish, or direct Architect to provide at Owner's expense, necessary additional services as stipulated in Section VII of this Agreement, or other services as required.

X. Period of Service.

A. The services called for in the preliminary report phase of this Agreement shall be completed and the report submitted within days following authorization for Architect to proceed.

B. After acceptance by Owner of the preliminary report and general cost estimate, indicating any specific modifications or changes in scope desired by Owner, and on written authorization from Owner, Architect will proceed with the performance of these services called for in the preliminary design phase of this Agreement, and shall submit preliminary design documents and cost estimates within days following authorization for Architect to proceed.

C. After acceptance by Owner of the preliminary design documents and revised cost estimates, indicating any specific modifications or changes in scope desired by Owner, and on written authorization from Owner, Architect will proceed with the performance of the services required by the final design phase of this Agreement, so as to deliver completed detailed construction drawings, specifications, and cost estimates for all authorized work on the Project within days afterward.

D. Architect’s services under the preliminary report phase, preliminary design phase, and final design phase shall each be considered complete (1) on the date when the submissions for that phase have been accepted by Owner; or (2) days after the date such submissions are delivered to Owner for final approval, whichever is earlier.

E. Unless sooner terminated as provided in Section XIV of this Agreement, this Agreement shall remain in force:

1. For a period that may reasonably be required for the design, award of contracts, and construction of the Project, including extra work and any required extension; or

2. If construction is not commenced, for a period of months after the completion of these services called for in that phase of the work last authorized.

F. If Owner has requested significant modifications or changes in the scope of the Project, the time of performance under Paragraphs A, B, and C of this Section shall be adjusted appropriately.

G. If the design or construction of the Project is delayed significantly for reasons (including costs of construction) beyond Architect’s control, the various rates of compensation provided for elsewhere in this Agreement shall be subject to renegotiation.

XI. Payments for Services and Expenses.

A. Basic Services. Owner will pay Architect for basic services performed under Section I of this Agreement: a lump sum fee of of the Project’s construction cost.

B. Additional Services. Owner will pay for additional services performed under Paragraphs A to O of Section VII of this Agreement, inclusive, and Paragraph A of Section VIII of this Agreement on the basis of payroll costs of salaries and wages as defined in Paragraph E of Section XIII of this Agreement, times a factor as provided in Paragraph B of Section XII of this Agreement, and the actual costs of reimbursable expenses as defined in Paragraph F of Section XIII of this Agreement.

C. Expert testimony. Owner will pay Architect for preparing to serve and serving as an expert witness at the rate of $ per day or any portion of a day and the actual costs of reimbursable expenses as defined in Paragraph F of Section XIII of this Agreement.

XII. Times of Payment.

A. Payments on account of the fee for basic services as provided in Subparagraphs A of Section XI of this Agreement shall be made as follows:

1. At the execution of this Agreement, a primary payment of $ as a minimum payment for the basic services under this Agreement which shall be credited to the final payment to be made under this Agreement.

2. Progress payments shall be made in proportion to services performed. The compensation for basic services shall amount to the following percentage of the total fee at completion of each phase of the work:

a. Preliminary report phase: ;

b. Preliminary design phase: ;

c. Final design phase: ;

d. Bidding or negotiating phase: ;

e. Construction phase: .

B. Payments for basic and additional services of Architect based on payroll costs of salaries and wages times a factor shall provide for general overhead and profit and shall be based on the following factors:

1. The factor shall be for basic services described in this Agreement, performed by personnel assigned to the regularly established offices of Architect.

2. The factor shall be for additional services as described in Paragraphs A to O of Section VII of this Agreement, inclusive, performed by personnel assigned to the regularly established offices of Architect.

3. The factor shall be for additional services performed in connection with resident Project representation furnished in accordance with Section VIII of this Agreement.

C. Payments for basic services, additional services, and reimbursable expenses shall be made on presentation of Architect’s detailed statement.

XIII. General Cost and Expense Provisions.

A. Project construction cost to be used as a basis for payment under Subparagraph A of Section XI of this Agreement shall be based on one of the following sources with precedence in the order listed:

1. Total cost of all work performed as designed or specified by Architect including labor, materials, and equipment.

2. The lowest acceptable bona fide Contractor's proposal.

3. Architect’s most recent cost estimate for the Project. All labor, materials, or equipment furnished by Owner shall be included at fair market value.

B. Such Project construction cost shall not include Architect’s fee, the cost of the land, right-of-way, or compensation for or damages to property unless this Agreement so specifies, nor shall it include Owner's legal, accounting, insurance counseling, or auditing services or interest charges incurred in connection with the Project.

C. If any portion of the Project is not bid or put under contract for a period of months after completion of the final design phase, the compensation under Subparagraph A of Section XI of this Agreement shall be based on one of the following sources with precedence in the order listed (i) lowest acceptable bona fide Contractor's proposal for such portion of the Project; or (ii) Architect’s most recent cost estimate for such portion of the Project.

D. No deductions shall be made from Architect’s compensation on account of penalty, liquidated damages, or other amounts withheld from payments to the Contractor.

E. The payroll cost of salaries and wages used as a basis for payment under Paragraph B of Section XII of this Agreement shall mean the cost of salaries and wages paid to principals and employees engaged directly on the Project, including, but not limited to, Architects, architects, surveyors, designers, drafters, specification writers, estimators, office personnel, plus cost of fringe benefits including, but not limited to, social security contributions, unemployment, excise, and payroll taxes, workers' compensation, health and retirement benefits, bonuses, sick leave, and vacation and holiday pay applicable to such persons.

F. Reimbursable expenses shall include the actual expense of transportation and subsistence of principals, employees, and consultants when traveling in connection with the Project, consultants' fees, field office expenses, resident Project representatives' subsistence, and transportation, toll telephone calls and telecommunications, reproduction of reports, drawings, and specifications, and similar Project related items.

G. Amounts not paid Architect when due as provided in this Agreement shall bear interest at the legal rate in force at the principal place of business of Architect.

H. If Architect's most recent cost estimate for the Project or the lowest bona fide Contractor's proposal is in excess of any limit stated in this Agreement, Owner shall give written approval of an increase in the limit, or it shall cooperate in revising the Project's scope or quality, or both, to reduce the cost as required.

I. If this Agreement is terminated on completion of any phase of Architect’s services, the progress payments to be made in accordance with Subparagraph A of Section XII of this Agreement on account of that and all prior phases shall constitute total payment for services rendered. If terminated during any phase of the work, Architect shall be paid for services performed during such phase on the basis of his reasonable estimate of the portion of such phase completed prior to termination. In the event of any termination, Architect shall be paid all terminal expenses resulting from such termination, plus payment for additional services then due. Any primary payment made under Subparagraph A of Section XI of this Agreement shall be credited to any terminal payment due to Architect.

J. If, prior to termination of this Agreement, any work designed or specified by Architect during any phase of the work is suspended in whole or in part for more than months, or abandoned, after written notice from Owner, Architect shall be paid for services performed prior to receipt of such notice from the Owner as provided in Paragraph I of this Section XIII of this Agreement for termination during any phase of the work.

XIV. Termination.

A. This Agreement may be terminated by either party by days' written notice in the event of substantial failure to perform in accordance with the terms of this Agreement by the other party through no fault of the terminating party.

B. If this Agreement is so terminated, Architect shall be paid as provided in Paragraph I of Section XIII of this Agreement.

XV. Ownership of Documents. All documents, including original drawings, estimates, specifications, field notes, and data are and remain the property of Architect as instruments of service. Owner may at its expense obtain a set of reproducible record prints of drawings and copies of other documents in consideration of which Owner will use them solely in connection with the Project, and not for the purpose of making subsequent extensions or enlargements to the Project and it will not sell, publish, or display them publicly. Re-use for extensions of the Project, or for new projects, shall require the prior, express, and written permission of Architect and shall entitle him to further compensation at a rate to be agreed on by Owner and Architect.

XVI. Estimates.

A. Since Architect has no control over the cost of labor, materials, or equipment, or over the Contractor's methods of determining prices, or over competitive bidding or market conditions, the estimates of construction cost provided for in this Agreement are made on the basis of his experience and qualifications and represent his best judgment as a design professional familiar with the construction industry, but Architect does not guarantee that bids or the Project construction cost will not vary from cost estimates prepared by him.

B. If, as a condition to this Agreement, a Project construction cost limit is established, the following shall apply:

1. The approval by Owner, at any time during the basic services of a revised cost estimate in excess of the then established cost limit, shall constitute a corresponding increase in the Project construction cost limit.

2. Any Project construction cost limit established by this Agreement shall include a bidding contingency of unless another amount is agreed on in writing.

3. Architect shall be permitted to determine what materials, equipment, component systems, and types of construction are to be included in the drawings and specifications and to make reasonable adjustments in the scope of the Project to bring it within the cost limit.

4. If the construction phase has not commenced within months of the completion of the final design phase, the established Project construction cost limit in this Agreement shall not be effective or binding on Architect, and Owner will consent to an adjustment in such cost limit commensurate with any change in the general level of prices in the construction industry between the date of completion of the final design phase and the date on which proposals or bids are sought.

5. If the lowest bona fide proposal or bid exceeds the established Project construction cost limit, Owner will:

a. Give written approval to increase such cost limit;

b. Authorize negotiating or rebidding the Project within a reasonable time; or

c. Cooperate in revising the Project scope.

In the case of (c) above, Architect will, without additional charge, modify the drawings and specifications as necessary to bring the Project construction cost within the cost limit. The providing of such service shall be the limit of Architect's responsibility in this regard and having done so, Architect’s shall be entitled to payment for his services in accordance with this Agreement.

XVII. Insurance. Architect shall secure and maintain such insurance as will protect Architect from claims under the workers' compensation acts and from claims for bodily injury, death, or property damage that may arise from the performance of Architect services under this Agreement.

XVIII. No Personal Liability. Nothing in this Agreement shall be construed as creating any personal liability on the part of any officer or agent of any public body that may be a party to this Agreement, nor shall it be construed as giving any rights or benefits under this Agreement to anyone other than the parties to this Agreement.

XIX. Excusable Delay. Neither party to this Agreement shall be liable to the other for any loss, cost, or damages, arising out of, or resulting from, any failure to perform in accordance with the terms of this Agreement where the cause of such failure shall include, but not be limited to, acts of God, strikes, lockouts, or other industrial disturbances, wars, whether declared or undeclared, blockades, insurrections, riots, governmental action, explosions, fire, floods, or any other cause not within the reasonable control of either party.

XX. Severability. The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

XXI. No Waiver. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

XXII. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

XXIII. Notices. Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

XXIV. Attorney’s Fees. In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

XXV. Mandatory Arbitration. Notwithstanding the foregoing, and anything herein to the contrary, any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

XXVI. Entire Agreement. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

XXVII. Modification of Agreement. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

XXVIII. Assignment of Rights. The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

XXIX. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

XXX. Compliance with Laws. In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties.

WITNESS our signatures as of the day and date first above stated.