Terms and Conditions
The terms of our engagement are based on the AIA (American Institute of Architects) and CAB (California Architects Board) Standard of professional care. Architects are licensed and regulated by the California Architects Board located at 2420 Del Paso Road, Suite 105, Sacramento, CA 95834. Our license number is C-29615.
STANDARD TERMS AND CONDITIONS: This proposal and the terms and conditions represent is the entire integrated agreement of J. Kretschmer, Architect referred to as the “Architect” in this document , to perform the architectural services described in the description of services in the previous section for the “Owner,” defined as the person or business entity authorizing the architect to perform the architectural services. This agreement supersedes all prior negotiations and proposals either written or oral. This agreement may be amended only by written addendum and must be signed by both the Owner and the Architect.
1. SERVICES TO BE PERFORMED: the services to be performed are described in the proposal for architectural services. Unless otherwise specified in the proposal or the terms and conditions, the Architect shall furnish all technical and professional services, including labor, materials, supplies, equipment, transportation and supervision to perform all tasks listed in the Proposal.
2. COMPENSATION: The attached description of services lists the tasks and phases and the fee proposal states the compensation terms. Terms of Payment. Invoices shall be submitted upon completion of a phase or monthly based on the percentage complete at that time. Payments are due upon the Owner’s receipt of the invoice. Amounts that are unpaid (30) thirty days after the invoice date shall bear interest at the rate of two percent (2%) per month. A minimum finance charge of $10.00 shall be assessed on overdue payments. Payments Withheld. No deductions shall be made from the Architect’s compensation on account of penalty, liquidated damages or other sums with from payments to the contractor(s), or on account of the costs of changes in the contractor’s services other than those which the Architect is adjudged to be liable. A. Suspension: If any payment is more than thirty (30) days past due, the Architect may, after giving (7) days written notice to the Owner, suspend services under this Agreement until the Architect is paid in full all amounts due for services, expenses, and other charges. Additionally, in the event of suspension, the Owner shall waive all rights, claims, etc. which it might otherwise have against the Architect as a direct or indirect result of such suspension.
3. ADDITIONAL SERVICES: All Additional Services shall be approved by the Owner and the Architect in writing prior to proceeding. The following are Additional Services that are not specified above and are considered beyond the standard services described in the description of services. A. Master Planning: The Architect may assist the Owner in developing and preparing a long term Master Plan. All work associated with the Master Plan, including all preliminary design work, shall be considered an Additional Service. B. Redesign to meet Project Budget Costs: The Owner is responsible to establish project budget costs and obtain required cost estimates. If the the Architect is not contracted to provide Cost Estimating services, the Architect shall not be liable to redesign to meet the project budget costs. If redesign is required due to revised or miscalculated project budget costs furnished by a party other than the Architect, the time required shall be considered Additional Services. C. Public Hearings: In the event that a Public Hearing is required for a municipal agency, the Architect shall be compensated on an hourly basis for both travel time and time spent at the meeting. D. Interior Design Services: The Architect may assist the Owner in the selection of interior finishes, fixtures, appliances, hardware, etc. Interior Design Services shall be considered additional services. E. Built-in Woodwork: The Architect may design built-in woodwork, such as bookshelves, audio/visual cabinets, window seats, computer workstations, etc. The design of such built-in woodwork shall be considered Additional Services. F. Purchasing through the Office of the Architect: Products and materials may be purchased through the office of the Architect. The full trade discount, as applicable, shall be forwarded to the Owner. A purchasing coordination and handling fee of 12% shall be applied to the cost of all items purchased through the office of the Architect. G. 3D Modeling: The Architect may develop and prepare a three dimensional computer model and/or physical scale model of the proposed project for the Owner. 3D computer model to describe the mass or overall character of the project is included. All other models including adding detailing to the included 3D computer model is considered Additional Services. H. Engineering: Engineering services are not included in the architectural services. The Architect will review work done by the engineer(s) to integrate with the services provided by the architect. I. Coordination of Consultants’ and/or Owner’s Work: Any coordination of work performed directly by the Owner or work performed by consultants hired by the Owner, including but not limited to structural engineers, mechanical engineers, kitchen designers, landscape designers, interior design consultants, audio/visual consultants, lighting designers, etc. shall be considered Additional Services. J. Qualifying Construction Contractors and Bids: The Architect can assist the Owner in reviewing and qualifying general building contractors and can also review the bids from general building contractors and provide advice to the Owner on the quality of the bids. Such services is provided as an Additional Service. K. Construction Observation: In addition to the site visits and service of Construction Observation included as Standard Services, the Architect may perform additional site visits, provide requests for information, additional architectural details, or other services provided during construction shall be considered Additional Services, but under no circumstances is the Architect responsible for the means and methods of construction, or to observe the site to inspect for or locate any safety or code violations. L. Fees for Additional Services: The Architect will prepare an addendum to include the fees for any additional services requested by the Owner. The fees may be either stipulated sum/fixed fee or hourly based on the service(s) requested. M. Non-Permitted Work: The Architect shall be compensated for any additional services and documents that are requested by the Owner to be provided due to existing conditions, prior to commencement of this contract, for any non-permitted work at the property location. The Architect shall bear no responsibility for such existing conditions.
4. REIMBURSABLE EXPENSES: The Architect shall be reimbursed for expenses incurred in the interest of the project, plus an administrative fee of 12%. Reimbursed expenses include: copies, reproductions, photography, plotting, and printing, structural engineering, T24 Energy documents, payments for permits or plan checking by the architect to the local municipality, or consultants hired by the architect on behalf of the project necessary for plan approval by the local municipality.
5. OWNER’S RESPONSIBILITIES: The Owner shall provide the Architect with clear, and complete information on the design objectives and the existing conditions of the property, including property-related information including legal descriptions, boundary and topographic surveys showing existing conditions, soils testing and reports, when known. The Owner shall provide decisions and requested information to the Architect in a relevant and timely manner. The Architect will be entitled to rely on the accuracy of the thoroughness of the Owner’s information and documents provided. A. Project Budget: The Owner shall establish a project budget with reasonable contingencies that meets the project requirements. The project budget shall be established by the Owner prior to the Architect proceeding with Schematic Design. B. Property Surveys: The Owner shall provide the architect with the necessary property surveys prior to the commencement of design services. The Architect assumes that all information on these documents is accurate and is not responsible for any information completed by others. C. Project Representative: The Owner shall appoint and authorize a project representative to answer field questions and make timely decisions. The Architect assumes that the Owner shall be the project representative unless the Owner notifies the Architect, in writing, that another project representative has been appointed. If, during the course of the project, the Owner replaces or selects a new project representative, any time spent by the Architect to bring the new project representative current shall represent Additional Services. D. Consultants: The Owner shall furnish the services of consultants when such services are requested by the Architect and are reasonably required by the Project. E. CAD files provided by another party: The Architect shall bear no responsibility for the accuracy and completeness of drawings, floor plans, surveys, or documents provided by the Owner or the Owner’s agents. This includes work done by the Architect if the Architect was supplied drawings by another party such as existing or proposed floor plans, site plans, etc. and was instructed to work from those documents.
6. COST ESTIMATES: The Architect is not contracted to provide cost estimating services. The Architect and its consultants do not warranty, guarantee or certify the construction cost for the project or any part of the project.
7. SELECTION OF QUALIFIED CONTRACTOR(S): The Owner shall select a licensed, qualified contractor(s) with a minimum of three (3) years of construction experience in work similar in nature to the project locate in the immediate vicinity.
8. SCHEDULE: The Architect shall commence work on this project within fifteen (15) business days of authorization to proceed. If through no fault of the Architect, Architectural Services has not been completed within six (6) months of the date first specified in the proposal, compensation for the Architect’s services beyond that time shall be considered Additional Services.
9. OWNERSHIP OF DOCUMENTS: All documents prepared or furnished by the Architect pursuant to this Agreement are instruments of the Architect’s professional service, and the Architect shall retain all ownership and property interest therein. The Architect grants the Owner a non-exclusive license to use the instruments of the Architect’s professional services for the purpose of constructing, occupying and maintaining this specific project. Reuse and/or modification of any such documents in whole or in parts, without the Architect’s written permission is not allowed and in violation of law. If the documents are reused and/or modified without permission from the Architect it shall be at the Owner’s sole risk and the Owner agrees to indemnify and hold harmless the Architect from all claims, damages, and expenses, including attorney’s fees, arising out of such reuse and/or modification by the Owner or by others acting through the Owner. Copyright: The Architect reserves ownership of all intellectual property represented by the design work and contained in the Instruments of Service created by the Architect and its employees, and retains all copyright for designs and work created by the Architect and its employees.
10. TERMINATION OF NON-EXCLUSIVE LICENSE: If the Owner terminates the services of Architect prior to completion of the contracted-services, or the Owner fails to pay the Architect in full for services rendered by Architect to Owner the non-exclusive license of Owner to use the Intellectual Property represented by the design work, the non-exclusive license granted to the Owner will terminate. In such circumstance, the Owner can option to pay the Architect an additional licensing fee of $3000.00 if the Owner wants to use the drawings or other design documents created and provided by Architect to Owner.
11. PUBLICITY: Owner grants the Architect and its consultants shall have the right to photograph the Project and to use the photographs, conceptual drawings, or other drawings or Instruments of Service in the promotion of its professional service through publication, advertising, public relations, brochures, websites, social media, or other marketing media without any restriction or fee.
12. INSURANCE, INDEMNITY, AND LIMITATIONS: The Architect shall maintain professional liability insurance through the period of this project. Certificates of insurance are available on request. The expense of any additional insurance coverage or increased policy limits of the liability beyond, including professional liability insurance, requested by the Owner in excess of the standard coverage of the Architect and its consultants shall be borne by the Owner. The Owner shall require the contractor to name the Architect as an additional insured on the contractor insurance policy. A. Limitation of Liability: For any damage on account or error, omission or other professional negligence, the Architect’s liability shall be limited to the Architect’s fee actually received under this proposal or the amount of errors and omissions insurance held by Architect. B. Waiver of Consequential Damage: The Owner and Architect waive consequential damages for disputes, claims or other matters relating to this Project. C. Language: The Owner and the Architect waive California Civil Code 1654 which states that in cases of uncertainty, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. D. Hazardous Substances: The Architect and Architect’s consultants shall have no responsibility for the identification, discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials, pest infestation, fungus and mold, geologic hazards, existing concealed conditions, in any form at the Project site. E. Unforeseen, Latent or Hidden Conditions: Unforeseen, latent or hidden conditions may not be readily ascertainable regardless of the extent of the investigation. Such conditions may impact the design and necessitate extensive revisions to the design. When architectural services are required to address these conditions, those services shall be deemed Additional Services.
13. STANDARD OF PRACTICE: Services performed by the Architect under this proposal shall be conducted in a manner consistent with the level of care and skill ordinarily exercised by members of their respective professions practicing in the same locality under similar conditions. No other representation, expressed or implied warranty, and no warranty or guarantee, or otherwise is intended or provided by Architect to Owner.
14. NO MODIFICATION OF ARCHITECT’S WORK: Neither Owner nor any other person shall change or modify Architect’s work product without Architect’s written authorization. Owner releases architect from liability and agrees to defend, indemnify, protect and hold harmless architect from any and all claims, liabilities, damages or expenses arising, in whole or in part, from such unauthorized changes or modifications.
15. RESPONSIBILITY FOR CONSTRUCTION MEANS AND METHODS: The Contractor, subcontractors, or others hired or retained by the Owner or Contractor are responsible for the means and methods of construction used in the Project. Architect’s visit to the construction site, if any, are not intended to be a comprehensive review of the construction, or any safety issues associated with the execution of the Project.
16. TERMINATION, SUSPENSION, ABANDONMENT: In the event of termination, suspension or abandonment of the project, the Architect shall be equitably compensated for services performed to the time of the notice of termination, suspension or abandonment. Failure of the Owner to make payments to the Architect in accordance with this Agreement shall be considered substantial nonperformance and is sufficient cause for the Architect to either suspend or terminate services and terminates Owner’s non-exclusive license to use the Instruments of Service and intellectual property represented by the documents created by Architect for the Project. A. Termination Without Cause: Either the Architect or the Owner may terminate this Agreement without cause after giving no less than seven days’ written notice. Similarly, in the event of an owner termination without cause, the Owner’s non-exclusive license to use the Instruments of Service and intellectual property represented by the design documents created by Architect for the Project will terminate. The initial payment is not returned in the event of project termination, suspension or abandonment by the Owner. B. Termination by Owner for Cause: Owner shall have the right to terminate the Architect for cause if Architect fails to perform services competently, fails to meet the schedule agreed to by the Parties, or loses its professional license. If Owner believes that cause exists for termination of the Architect, it shall give Architect written notice, and Architect shall have 10 days to cure such alleged default. If after such ten day period lapses, without cure, Owner shall notify Architect in writing that its services have been terminated.
17. DISPUTE RESOLUTION: Any claim, dispute or other matter in question arising out of or related to this agreement shall be submitted to Mediation to a Mediator mutually selected by the Parties.
18. ATTORNEYS’ FEES. In the event of any dispute under this Agreement, the prevailing party shall be entitled to recover its actual attorneys’ fees expended, as well as expert costs.
19. THIRD PARTY INDEMNITY: Nothing contained in this agreement shall create a contractual relationship between any/with a third party and against either the Owner or the Architect.
20. GOVERNING LAW: This Agreement shall be governed by the law of the State of California, and venue for any legal action shall be Santa Clara County Superior Court.
21. SURVIVABILITY OF VALID PROVISIONS: In the event that any provision of this Agreement should be held void, voidable, unlawful, superseded or for any reason unenforceable, the remaining portion hereof shall remain in full force and effects as if the unenforceable provision were omitted..
22. PANDEMIC OR NATURAL DISASTERS: During pandemic, natural disasters, or other events out of our control, the Architect may be limited by government orders. When this occurs, the Architect is given permission to revise the schedule for delivery of service or instruments of service.
23. NOT REFUNDABLE: Once the service has been performed and the plans (instruments of service) have been delivered, fees are not refundable. Refunds prior to service performance or delivery will incur a bank fee that will be deducted from the total initially paid.
GetADU.com by Jennifer Kretschmer is located at 101 Old Blossom Hill Road, Los Gatos, CA 95032.