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CONDITIONS OF APPOINTMENT
Governing law/interpretation
The law applicable to this agreement shall be the law of England and Wales.
Consultants’ Services
The Consultant shall, in providing the Services and discharging all the obligations set out hereunder, exercise reasonable skill and care in conformity with the normal standards of their profession.
ACA shall act on behalf of the Client in the matters set out or necessarily implied in the Appointment.
The Client shall advise ACA of the relative priorities of the Client’s requirements, and shall inform ACA of any changes or variations to the Client’s requirements, budget or timetable.
ACA shall co-operate with any other designers and the CDM Principal Designer if appointed, and as appropriate pass relevant information to them.
ACA shall make no material alteration, addition to or omission from the Services, or from the approved design, without the knowledge and consent of the Client and shall confirm such consent in writing. In an emergency, ACA may make such alteration, addition or omission without the knowledge and consent of the Client, but shall inform the Client without delay and subsequently confirm such action in writing.
ACA shall in providing the Services make such visits to the Works as they at the date of appointment reasonably expected to be necessary.
The Client shall, free of charge, supply ACA with accurate information necessary for the proper and timely performance of the Services, and ACA will rely on such information.
The Client shall give decisions and approvals necessary for the proper and timely performance of the Services.
The Client shall have authority to issue instructions to ACA, subject to their right of reasonable objection. Such instructions and all instructions to any consultants or contractors shall be issued through ACA.
Neither ACA nor the Client shall assign the whole or any part of the benefit or in any way transfer the obligation under the Appointment without the consent in writing of the other.
Subject always to the provisions of Clause 2, ACA does not warrant results or outcomes beyond their control, specifically:
Statutory Requirements
The Client shall instruct the making of applications for planning permission and approval under building acts, regulations and other statutory requirements, and applications for consent by freeholders and all others having an interest in the Project. The Clients shall pay any statutory charges and fees, and any expenses and disbursements made in respect of such applications.
CDM Regulations
Where applicable, the Client shall comply with his obligations under the CDM Regulations, including the appointment of a competent CDM Principal Designer as soon as practicable.
Other Appointments
The Client shall appoint and pay any consultants and other persons as may be required under separate agreements.
The Client, in respect of any work or services regarding the Project performed or to be performed by any person other than ACA, shall:
Fees and payments
ACA’s fees shall be calculated and charged as set out in either a Letter of Appointment, formal agreement or fee offer as appropriate.
Where a percentage basis is to be used, the Architect’s fees shall be calculated as a percentage of the total Construction Cost, excluding VAT, when the final valuation has been ascertained and agreed. By total Construction Cost is meant the cost as certified by ACA of all works including site works executed under ACA’s direction and control. For calculating percentage fees before the final cost has been ascertained, the following bases shall be used:
Time-based fees shall be ascertained in accordance with ACA’s rates set out below:
Additional Fees
Additional fees shall be payable if ACA, for reasons beyond their control, are involved in extra work or incur extra expenses, such as where:
Expenses and disbursements
The Client shall pay any expenses specified under the terms of the appointment. Expenses other than those specified shall only be charged with the prior authorisation of the Client. The Client shall reimburse ACA for any disbursements made on the Client’s behalf at cost plus 10%. Where appropriate the following charges will apply:
Mileage rate: 50p pm
Plan Prints and Copying: B&W A0 £5.50 A1 £4.00 A2 £3.00 A3 £2.50
ACA+I shall maintain records of time spent on Services carried out on a time basis, and of expenses and disbursements, and shall make these available to the Client on reasonable request.
Payments by Client
Payments under the Agreement shall become due to ACA on issue of their accounts. The final date for such payments by the Client shall be 30 days from the date of issue of an account. ACA’s accounts shall be issued at intervals of not less than one month and shall include any additional fees, expenses and disbursements and state the basis of calculation of the amounts due. Instalments of the fees shall be calculated based on ACA’s estimate of the percentage of completion of the Work Stage or other Services or such other method specified in the Appointment.
Payment notices
A written notice from the Client to ACA:
.1 may be given within 5 days of the date of issue of an account specifying the amount the Client proposes to pay and the basis of calculation of that amount; and/or
.2 shall be given not later than 5 days before the final date for payment of any amount due to ACA if the Client intends to withhold payment of any part of that amount stating the amount proposed to be withheld and the ground for doing so or, if there is more than one ground for doing so, if there is more than one ground, each ground and the amount attributable to it.
If no such notices are given the amount due shall be the amount stated as due in the account. The Client shall not delay payment of any undisputed part of an account.
Any sums remaining unpaid 30 days after the Client’s receipt of an account from ACA shall bear interest at 8% over Bank of England Base Rate.
If the Client or ACA suspends or terminates performance of the Services, ACA shall be entitled to payment of any part of the fee or other amounts due at the date of suspension or termination on issue of ACA’s accounts in accordance with clause 25.
Where the performance of the Services is suspended or terminated by the Client, or suspended or terminated by ACA because of a breach of the Agreement by the Client, ACA shall be entitled to payment of all expenses and other costs necessarily incurred because of any suspension and any resumption or termination on issue of ACA’s accounts in accordance with clause 25.
The Client shall pay any Value Added Tax chargeable on the net value of ACA’s fees and expenses.
Copyright
ACA owns the copyright in the work produced by them in performing the Services and generally asserts the right to be identified as the author of the artistic work/work of architecture comprising the Project.
Licence
The Client shall have a licence to copy and use and allow other consultants and contractors providing services to the Project to use and copy drawings, documents and bespoke software produced by ACA in performing the Services, hereinafter called “the Material” but only for purposes related to the Project on the Site or part of the Site to which the design relates.
Such purposes shall include its operation, maintenance, repair, reinstatement, alteration, extending, promotion, leasing and/or sale but shall exclude the reproduction of ACA’s design for any part of any extension of the Project and/or for any other project.
Provided that:
.1 ACA shall not be liable if the Material is used for any purpose other than that for which it was prepared;
.2 in the event of any permitted use occurring after the date of the last Service performed or under the Agreement and prior to practical completion of the construction of the Project, the Client shall:
where ACA has not completed Detailed Proposals (Works Stage 4), obtain ACA’s consent, which consent shall not be unreasonably withheld; and/or
pay to ACA a reasonable licence fee where no licence fee is specified in the appointment;
.3 in the event of the Client being in default of payment of any fees or other amounts due, ACA may suspend use of the licence on giving 7 days’ notice of the intention of doing so. Use of the licence may be resumed on receipt of outstanding amounts.
Rights to Third Parties
For the avoidance of doubt, nothing in this Agreement shall confer or purport to confer on any third party any benefit or right to enforce any term of this Agreement.
Suspension and Termination
Either the Client or ACA may be giving reasonable notice to the other to suspend or terminate performance of the whole part of the Services. If the performance of any or all the Services suspended is not resumed within 6 months, ACA may by notice in writing to the Client terminate the Appointment. In the event of the Client being in default of payment of any fees or other amounts due, ACA may suspend its obligations under the Agreement by giving at least 7 days’ notice in writing to the Client of the intention to suspend performance stating the grounds for doing so and the Services affected. ACA shall resume performance of the affected Services on receipt of the outstanding amounts.
Dispute Resolution
Negotiation or conciliation
In the event of any dispute or difference arising out of this Agreement, the Client and ACA may attempt to settle such difference or dispute by negotiation or in accordance with the RIBA Conciliation Procedure.
Adjudication
Any dispute or difference arising out of this Agreement may be referred to adjudication by the Client or ACA at any time. The application procedures and the Agreement for the appointment of an Adjudicator shall be set out in the “Model Adjudication Procedures” published by the Construction Industry Council current at the date of the reference.
Naming or Nomination of an Adjudicator
Where no Adjudicator is named in the Agreement and the parties are unable to agree on a person to act as Adjudicator, the Adjudicator shall be a person to be nominated by the President of the RIBA.
Arbitration
When either the Client or ACA+I require any dispute or difference to be referred to arbitration the requiring party shall give notice to the other to such effect and the dispute or difference shall be referred to the arbitration and final decision of a person to be agreed between the parties or, failing agreement within 14 days of the date of the notice, to a person appointed by the President of the RIBA.
Provided that the Client or ACA may litigate any claim for pecuniary remedy which does not exceed £3,000 or such other sum as is provided by statute pursuant to Section 91 of the Arbitration Act 1996.
Asbestos and Toxic Mould
Notwithstanding anything to the contrary contained in this Agreement, the consultant shall not be liable either directly or indirectly for the innocent specification and/or failure to detect the presence of materials of a toxic nature including, but without however, in any way seeking to limit this clause, toxic mould and any form of harmful asbestos based product which may be present in the development.
Parties to initial
As referred to in the Letter of Appointment dated between (Client) and ACA.