Agreement Sample (pdf) - Namibian Institute of Architechts

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CLAUSE 5: CONDITIONS 5.1. ACT OF PARLIAMENT AND REGULATIONS The architect is obliged to abide by the Architects’ Act, 1979 (Act 13 of 1979) and any amendments thereto, the regulations framed in terms thereof and the constitution, regulations and rules of the Namibia Institute of Architects and Quantity Surveyors, and any amendments thereto. 5.2. CLIENT’S REQUIREMENTS The client shall clearly and timeously specify his requirements, and provide relevant information, decisions and instructions to the architect when requested to do so by the architect. In the event that the client changes his requirements and that such changes involve any addition to the cost of the works, time schedule or professional fees, the architect shall advise the client promptly thereof and, in agreement with the client, confirm supplementary services in terms of Clause 6.6. 5.3. SITE DEFINITION Site boundaries and beacons shall be established on site by a registered land surveyor to be appointed in terms of Clause 5.12. The land surveyor shall provide the architect with a survey drawing as described in Clause 6.1.2 and any certificates related thereto. 5.4. LEGAL CONSTRAINTS RELATED TO A PROJECT The client shall provide the architect with the title deeds, diagrams, lease conditions and all other pertinent legal constraints related to the project, together with any professional legal advice thereon as may be necessary. 5.5. ARCHITECT’S DILIGENCE The architect shall exercise reasonable diligence and skill in the performance of his professional services. 5.6. LIMITS TO ARCHITECT’S RESPONSIBILITY 5.6.1. Tenders Exceeding Estimates The architect in preparing tender or contract documentation undertakes to use his best endeavours to adhere to the approved estimate but does not guarantee that tenders will not exceed the estimate. In the event of the lowest tender exceeding the approved estimate by more than 15% solely due to the actions of the architect, the architect shall, if so required by the client and at no additional cost to the latter, make such changes to the design and/or specifications as to reduce the cost to within 15% of the approved estimate or to such higher amount as may be agreed to by the Client. 5.6.2. Consultant and/or Contracted Design Services The client shall not have the right of action against the architect arising from any loss or damage which the client may suffer arising from any negligence, delay, error or omission on the part of any other consultant. Where any design service is provided by a contractor, sub-contractor or other specialized trade, the architect shall not be responsible for any negligence, delay, error or omission of their part, or for any consequences thereof. 5.6.3. Failure of Materials, etc. The architect shall not be responsible for any material, component, system or workmanship failing to perform in accordance with the claims of the manufacturers, suppliers, contractors or sub-contractors. 5.6.4. Contractor’s Responsibilities Each contractor, together with his sub-contractors, is directly responsible to the employer for due performance in terms of the building contract. The architect shall use his best endeavours by way of contract administration and inspection of the works to guard against delays, deficiencies or defects on the part of a contractor but shall not be responsible for, nor does he give any guarantee in regard to the foregoing, nor for a contractor’s operational methods, techniques, sequences or procedures. 5.6.5. Checking of Shop Drawings and Approval of Samples Checking of shop drawings or approval of samples of equipment, materials or workmanship by the architect is precautionary and does not relieve a contractor or sub-contractor of responsibility for installation co-ordination, erection fit, patent errors or defects contained in shop drawings of latent/patent defects in equipment, material or workmanship, nor does it place responsibility upon the architect for the foregoing. 5.6.6. Time Limit to Architect’s Responsibility No claim whatsoever shall be enforceable by the client against the architect arising out of or in respect of any services rendered by the architect under this contract or otherwise in connection with the carrying out of the project after three years has elapsed from completion of the project or suspension, postponement or termination in terms of Clause 5.16 and 5.17 hereof, irrespective of when such claim arises or when the client acquired knowledge of the facts from which the claim arises. 5.7. ARCHITECT’S AUTHORITY TO MAKE CHANGES The architect shall not make any material alteration, addition or omission to the approved design without the consent of the client except when arising from an emergency or necessity during construction, in which case the architect shall notify the client as soon as possible of the action taken. For the purpose of this item a material alteration shall mean an alteration or variation the cost of any one of which exceeds the sum stated in the schedule hereto. - - 4
5.8. INSTRUCTIONS TO CONTRACTORS Instructions to contractor/s related to the works shall only be given by the architect or his authorized representative. 5.9. CHANGES OF ARCHITECT’S FIRM AND ASSIGNS Any changes of composition or status of the architect’s firm shall not affect this agreement and, in so far as he is able, each partner or co-director binds himself, his successors or assigns to the other party to this agreement. Save as above, neither party shall assign, sublet or transfer his interest in this agreement without the written consent of the other. 5.10. INCAPACITY OF THE ARCHITECT In the event of the architect’s death or physical or mental incapacity to fulfill his obligations, where he is not a member of a partnership or registered company, the procedure shall be as for Termination, as set out in Clause 5.17.2. In the event of the architect’s death or physical or mental incapacity to fulfill his obligations, where he is a member of a partnership or registered company, such other partners or the company, as the case may be, shall complete this contract. 5.11. COPYRIGHT, OWNERSHIP AND USE OF DOCUMENTS All documents prepared by the architect are copyright and remain his property. The client has the right to use of and benefit from authorized copies of documents for the sole purpose of this agreement, subject to his compliance with the terms and conditions set out in this agreement. 5.12. EMPLOYMENT OF CONSULTANTS Where the architect deems it necessary to obtain any specialized advice from consultants it shall be provided under his direction. Such services include, inter alia: land surveying, town planning, quantity surveying, engineering services including structural, mechanical and electrical services, landscape design or construction methods or procedures. Such consultants shall be selected by the architect in agreement with the client, and be appointed by the client. Each consultant shall sign individual agreements of employ with the client who will be directly responsible for the payment of consultant’s fees in terms of the conditions of their engagement. Instructions to such consultants in relation to the project shall only be given by or through the architect. 5.13. PAYMENT The architect shall be entitled to render and be paid monthly interim accounts for the payment of fees and disbursements during the progress of standard services and any supplementary services. Such accounts shall be assessed by the architect, pro rata to the professional services rendered. The aggregate of the interim payments shall not exceed the total fee payable. Payment of each of the architect’s accounts shall be due when rendered and shall be payable at the address of the architect as stated in the Articles of Agreement. Accounts not paid within 30 days of presentation shall accrue interest at a rate of 2 percent above the prime bank rate. 5.14. WTHHOLDING OF FEES Should the client allege a claim against the architect, a contractor or any other party involved in the project, such claim shall be dealt with in its own right and the client may not withhold payment of any part of fees or disbursements due to the architect on such account. 5.15. BUILDING CONTRACT DISPUTES Any dispute or difference which ay arise between the client or the architect on his behalf and the contractor, as defined in the building contract, shall, as set out therein, be decided by the architect as part of his standard services. However, for rendering any other professional service in connection with or arising out of any arbitration, litigation or dispute, such other service shall rank as a supplementary service and the architect shall be remunerated accordingly. 5.16. SUSPENSION OR POSTPONEMENT OF THE PROJECT The client may at any time instruct the architect to suspend or postpone work on the project. Immediately thereafter the architect shall be entitled to be remunerated in full for all of his services rendered and disbursements to the date of such instruction. Upon suspension or postponement of the project, the architect shall be paid in full all outstanding fees and disbursements, plus 7.5% on his total fees for his services due up to the effective date of suspension or postponement. If work on the project remains suspended or postponed for six months or more from the date of such instruction, the architect shall be entitled to assume that the project has been terminated by the client in terms of Clause 5.17.1 and shall advise the client accordingly in writing by registered post. The architect shall not be precluded from recovering any damages he may sustain due to the suspension or postponement of the project. 5.17. TERMINATION This agreement may be terminated by either party on the expiry of thirty days notice in writing to the other party by registered post. 5.17.1. Termination by the Client Upon termination by the client the architect shall be paid in full all outstanding fees and disbursements, plus 7,5% on his total fees due for his services up to the effective date of termination. - - 5
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Agreement Sample (pdf) - Namibian Institute of Architechts

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