Terms and Conditions
Architectural Professional: Gosebo House Plans
This agreement has been compiled by the South African Institute of Architectural Technologists (SAIAT) for free use by architectural professionals.The parties who make use of this agreement indemnifies SAIAT against all claims that may arise out of the use of this agreement.
5th Edition – March 2016
1.0 DEFINITIONS AND INTERPRETATION:
1.1 Where the words and phrases are highlighted in the text of this agreement they shall bear the
meaning assigned to them in clause 1.2 and where such words and phrases are not highlighted they shall bear the meaning consistent with the context.
In this document, unless the context otherwise indicates, an expression or word to which a
meaning has been assigned in the Act, shall bear the same meaning, and:
act means the Architectural Profession Act, 44 of 2000.
agreement means a written agreement between the client and any other party.
architectural professional means a person registered in terms of the Architectural Profession Act, 44 of 2000, under a specific category of registration, or the architectural professional's architectural professional constituted as a legal personal appointed toprovide the architectural service for the project.
budget means the anticipated cost of the project and/or works; provided that estimates on which the budget is based, shall be deemed to be valid for a period not exceeding 3
building contract means the JBCC Principal Building Agreement (PBA) or the JBCC Minor Works Agreement (MWA) or such other building contract entered into between the client and the contractor.
Category of Registration means the category in which a person who is competent toundertake the range of work as specified in respect of each category, who may register inthe architectural profession in terms of Section 18(1) of the Act; provided that specialized services may only be performed by a registered person meeting the defined requirements.For the purposes of this agreement the Categories of Registration are:
(i) Professional Architect or
(ii) Professional SeniorArchitectural Technologist
(iii) Professional Architectural Technologist
(iv) Professional Architectural Draughtsperson
client means the party appointing the architectural professional to perform the services or any part thereof referred to in this document.
consultant means professional person/s or entity/entities appointed by the client to provide services with respect to the project.
construction documentation means graphic representations, plans , sections, elevations, site plans, specifications, construction details, service co-ordination information, schedules and such other details and descriptions as are within the reasonable competence of an architectural professional which are sufficient to indicate the scope of the works.
contract means an agreement entered into by the client with a contractor for the execution of the works or part thereof; may also be referred to as the building contract.
contractor means the entity or entities contracting with the client for the execution of the works or part thereof.
inspection means such periodic visits to, or in connection with the works, by the architectural professional as are necessary to establish conformity of the work to the contract documentation and National Building Regulations, and to provide on- site clarification and further information during the progress of the work; inspect shall carry the same meaning.
JBCC means the Joint Building Contracts Committee, (JBCC) suite of contract
practical completion means the stage of completion where the works or a section thereof as certified by the principal agent, is substantially complete and caneffectively be used for the purpose intended.
principal agent means the person appointed to fulfill the obligations of the agreed
form of contract.
principal consultant means the person authorised by the client to lead theconsultants.
project means the development for which the architectural professional and consultants
are appointed and may not be limited to the works.
SACAP means the South African Council for the Architectural Profession.
schedule means the part of this document that contains the variables.
Schedule of Fees means the attached document setting out the manner in which the professional fees will be calculated (quotation, cost estimate).
works means all work executed or intended to be executed according to the building contract.
In formal service agreements and contracts, unless inconsistent with the context:
The words "advise", "appoint',"approve","authorise", "certify", "consent', "decide", "delegate","designate", "instruct', "issue", "notify", "object, "reply", "request', and "specify"
shall indicatean act required to be carried out in writing.
The masculine gender includes the feminine and neuter genders and vice versa, the singular includes the plural and vice versa and persons shall include juristic persons.
All monetary amounts exclude tax, which tax shall be added to any amounts which become due and payable.
Notice in terms of service agreements shall be deemed to have been duly received when:
Delivered by hand - on the day of delivery.
Sent by prepaid registered post - 7 (seven) days after posting.
Sent by telefax - 1 (one) day after transmission.
Sent by e-mail - 1 (one) day after transmission.
2.0 STANDARD SERVICES
The standard services for which the architectural professional is responsible are set out below:
2.1 STAGE 1: INCEPTION
2.1.1 Receive, appraise and report on the client's requirements with regard to:
the client’s brief
the site and rights and constraints
the need for consultants
methods of contracting
2.2 STAGE 2: CONCEPT AND VIABILITY (CONCEPT DESIGN)
2.2.1 Prepare an initial design and advise on:
the intended space provisions and planning relationships
proposed materials and intended building services.
the technical and functional characteristics of the design.
2.2.2 Check for conformity of the concept with the rights to the use of land.
2.2.3 Review the anticipated costs of the project.
2.2.4 Review the project programme.
2.3 STAGE 3: DESIGN DEVELOPMENT
2.3.1 Confirm the scope and complexity.
2.3.2 Review the design and consult with local and statutory authorities.
2.3.3 Develop the design, construction system, materials and components.
2.3.4 Incorporate and co-ordinate all services and the work of consultants.
2.3.5 Review the design, costing and programme with the consultants.
2.4 STAGE 4: DOCUMENTATION AND PROCUREMENT
2.4.1 Prepare documentation sufficient for local authority submission:
co-ordinate technical documentation with the consultants and complete primary.
prepare specifications for the works.
review the costing and programme with the consultants.
obtain the client’s authority and submit documents for approval.
2.4.2 Complete construction documentation and proceed to call for tenders:
2.5 STAGE 5: CONSTRUCTION
2.5.1 Administer the building contract.
2.5.2 Give possession of the site to the contractor.
2.5.3 Issue contract documentation.
2.5.4 Initiate and/or check sub-contract design and documentation as appropriate.
2.5.5 Inspect the works for conformity to the contract documentation.
2.5.6 Administer and perform the duties and obligations assigned to the principal agent in the JBCC.
building contract, or fulfil the obligations provided
or in other forms of contract.
2.5.7 Issue the certificate of practical completion
2.5.8 Assist the client to obtain the occupation certificate.
2.6 STAGE 6: CLOSE OUT
2.6.1 Facilitate the project close-out including the preparation of the necessary documentation to effect completion, handover and operation of the project.
2.6.2 After the contractor’s obligations with respect to the building contract are fulfilled, the
architectural professional shall issue the certificates related to contract completion.
2.6.3 Provide the client with as-built drawings and relevant technical and contractual undertakings bythe contractor and sub-contractors.
3.0 ADDITIONAL SERVICES
The following services are additional to the standard service and rank for Additional fees. These services may be added individually or in varying combinations and shall be provided by prior agreement between the client and the architectural professional:
3.1.1 Special design services
The preparation of special designs within, or in relation to, the facilities which are contemplated ina standard service, which may include:
126.96.36.199 Rational design by other consultants - participate in the preparation of rational designs.
188.8.131.52 Town planning and/or urban design including participation in the application for the establishment and/or amendment of regional and local town planning and urban design schemes and the amendment of title conditions, negotiations with interest groups and authorities.
184.108.40.206 Master planning - defining and planning the layout of future development of buildings and/orservices on the same site.
220.127.116.11 Landscape design - participation in landscape planning and construction.
18.104.22.168 Interior design - the design of interiors and the selection of furnishings, fixtures and special finishes.
22.214.171.124 Liaison with special designers and specialist consultants.
126.96.36.199 Purpose-made items - the design and documentation of purpose-made items.
188.8.131.52 Promotional material and art work - participation in the preparation of promotional material.
184.108.40.206 Plant operation and production layouts - participation in the definition of plant operation layouts.
obtain the client’s authority to prepare documents to procure offers for the
execution of the works.
obtain offers for the execution of the works
evaluate offers and recommend on the award of the building contract.
prepare the contract documentation and arrange for the signing of the building
4. FEES FOR PROFESSIONAL SERVICES
4.1 Basis of fees agreement
4.1.1 The client agrees to pay the architectural professional the fees for the services as
recorded in the formal agreement entered into by the parties.
4.1.2 Where a project cost based fee is applied, the final fee is calculated as recorded in the
formal agreement entered into by the parties.
4.2 Project cost based fees for standard and partial services.
4.2.1 For a partial service, assuming the fee is a project cost based fee, the percentage of the fee
for each work stage to be performed is agreed between client and architectural
professional as per 4.4
4.2.2 The budget for fee purposes excludes VAT, contingencies and provision for escalation.
4.3 Apportionment of fees between work stages:
4.3.1 The fee applicable to each work stage is apportioned according to the table below and maybe adjusted by agreement. In project specific cases requiring the completion of documentation at earlier stages, an appropriate increase of the fee apportionment to the initial stages may be considered.
4.4 Fees for additional services:
4.4.1 Unless otherwise agreed, the fee for additional services is time based, based on hourly ratesas recorded in the formal agreement entered into by the parties.
4.5 Time based fees.
4.5.1 Where fees for the architectural professional’s services are time based fees, the hourly ratesas recorded in the formal agreement entered into by the parties apply.
4.6 Fees for deployment of employees.
4.6.1 Where an employee of the architectural professional is deployed on site for extended
inspection or other agreed purpose, the amount of the reimbursement shall be the total cost
of employment plus 30%, or as agreed on proven cost.
4.7 Extended initial contractual contract period.
4.7.1 In the event that the initial contract period is exceeded by more than 10%, through no fault of
the architectural professional, the architectural professional is to be remunerated for all
additional work resulting from the extension of time at the hourly as recorded in the formal
agreement entered into by the parties together with related re-imbursable expenses.
4.8 Adjustment of fees and disbursements.
4.8.1 The fees and disbursements are based on the following parameters:
220.127.116.11 Scope of services.
18.104.22.168 Scope of the project/works.
22.214.171.124 Project programme.
126.96.36.199 Cost of the works Cost of the project.
188.8.131.52 Appointment of other consultants.
184.108.40.206 Appointment of contractor.
4.15.2 Should any material variation to the parameters as stated occur, the fees and
disbursements will be adjusted.
4.15.3 Adjustments to the project programme, commonly known as 'fast tracking', that requires theapplication of an additional resource by the architectural professional, shall attract an
4.16.1 Where travelling is not included in the fee as recorded in the formal agreement between
the parties, the hourly rates as recorded in the formal agreement entered into by the parties
shall apply plus the latest applicable rate per kilometer as published by the Department of
Public Works. This shall only apply to travel time greater than two (2) hours and more than
100km per return trip.
4.17 Fees on termination by the client.
4.17.1 Where the agreement between the client and the architectural professional is terminated the client shall pay for that portion of the service that has been executed.
4.17.2 Termination of the project will attract an additional fee equal to 10% of the full fee in the stagein which termination occurs..
4.18 Fees for dispute resolution services.
4.19 For acting as a witness, or giving evidence at adjudication, mediation, arbitration or litigation
(the cause not being the action of the architectural professional, the fee w i l l be the timecharge fee at the hourly rates the hourly rates as recorded in the formal agreement enteredinto by the parties apply and increased by 50% (150% of the fee).
4.20 Payment of professional accounts.
4.20.1 The architectural professional’s accounts are due and payable on presentation.
4.20.2 The architectural professional shall be entitled to render interim accounts.
4.20.3 Fee and re-imbursement invoices may be invoiced separately.
4.20.4 The architectural professional may give notice to the client of intention to suspend work if payment on interim accounts or any other account has not been received within seven (7) calendar days from issuing such notice.
4.20.5 If payment is still not received within seven (7) calendar days after given such notice the
architectural professional may suspend any work and/or service until such payment has been made by the client.
4.20.6 If work or service was suspended and the client has rectified his default by paying any
outstanding account, the architectural professional has to resume work within two (2)
working days after receiving such payment.
4.21 Re-imbursement ofexpenses.
4.21.1 In addition to the fees set out in the formal agreement between the parties, the client shall
reimburse the architectural professional for all reasonable disbursements properly incurred.
4.21.2 The expenses contemplated may include the following:
220.127.116.11 printing, photocopying, maps, models, presentation materials, photography and similar
documentation including all reproduction or purchase costs of documents, hotel, subsistence and travelling expenses, toll fees and other similar disbursements.
18.104.22.168 all payments made by the architectural professional, including fees and other charges for specialised professional and other services incurred on behalf of the client.
22.214.171.124 telephonic, electronic and facsimile communication, special postage and courier deliveries.
126.96.36.199 any other disbursements that may be agreed by the client.
4.22 Claims to be separate and not set-off.
4.22.1 Should the client allege a claim against the architectural professional, a contractor or any
other party involved in the project, such claim shall be dealt with on its own merits. The client
is not entitled to withhold payment of fees or disbursements or part thereof due to the architectural professional, based on the alleged claim. The client shall make payment without any set-off and waives all rights to any such set-off.
4.22.2 No penalties will be applied to t h i s professional service agreement. Should professional error, omission and/or negligence be implied, compensation is sought by dispute resolutionor litigation and claimed from the architectural professional.
4.23 Termination of engagement.
4.23.1 Where the agreement between the client and architectural professional is terminated, the clientshall pay the architectural professional for that portion of the work that has been executed.
4.23.2 Where the termination, suspension or deferment of the project is not directly attributable to the architectural professional, a surcharge of ten (10) percent of the fee determined in Clause 4 shall apply.
4.24.1 Suspension or deferment.
188.8.131.52 The client may at any time require that work on the project be suspended or deferred.
The architectural professional shall not be precluded from recovering any damages he may sustaindue to the suspension or deferment of the project.
184.108.40.206 The architectural professional is entitled to charge interest equal to the Bank Repro Rate at the beginning of every month plus six (6) percent per annum.
5.0 CONFIDENTIALITY AND COPYRIGHT
5.1 The client and the architectural professional both shall keep all sensitive information obtained
by them in the context of this agreement and shall not divulge it without the prior written approvalof the other party.
5.2 The architectural professional retains copyright of all documents and/or designs prepared by the architectural professional for the project.
5.3 The client has the right to the use and the benefit of the documentation produced for the solepurpose of its intended use on the project subject to the compliance with the terms and
conditions of this agreement.
5.4 The client is entitled to all data and factual information collected by the architectural professional and paid for by the client.
6.0 LIMIT OF LIABILITY
6.1 The architectural professional’s liability for any defect in the design of the project/works will
end five (5) years after date of final account of the architectural professional.
6.2 The financial limit to any liability for any defect in the design of the project/works will be as
stated in A4 of the Schedule.
7.1 This agreement may be terminated by either party on the expiry of fourteen (14) days’ notice tothe other party should the other party be in breach of a material term of this agreement. Within thirty (30) days of payment of the fees and disbursements due, the architectural professionalshall provide copies of documents and other items which, in his opinion, are relevant to the project.This disbursement shall be reimbursed by the client.
8.0 RESOLUTION OF DISPUTES
8.1 Should any dispute whatsoever arise between the parties, then either party hereto may declare adispute by delivering notice of the details thereof to the other party, which dispute shall be referredto arbitration.
8.2 Prior to arbitration and should the parties so agree, the dispute may be referred to a single mediator without the parties having legal representation. The mediator shall be selected by agreement between the parties within fourteen (14) days and be appointed jointly by the parties.
8.3 The mediator shall have absolute discretion in the manner in which the mediation proceedings
shall be conducted.
8.4 The mediator shall deliver a copy of his reasoned opinion to each party within twenty-one (21)days of his appointment which shall be final and binding to the parties unless either party notifies the other party in writing of his unwillingness to accept the said opinion. In this event the dispute shall be referred to arbitration.
8.5 Arbitration shall be by a single arbitrator who shall be selected by agreement between the parties within fourteen (14) days. The arbitrator shall be appointed jointly by the parties.
8.6 The arbitrator shall have the power to open up, review and revise any opinion, decision or noticeand to determine the matters in dispute which shall be submitted to him.
8.7 The cost of mediation and/or arbitration as determined by the mediator and/or arbitrator shall beborne equally by the parties and shall be due and payable to the mediator and/or arbitrator on
presentation of his written account.
9.0 WHOLE AGREEMENT
9.1 This agreement, including the Schedule and any annexures hereto, is the whole of the contract between the parties and no variation hereof shall have any effect unless reduced to writing andsigned by both parties. The validity of Clause 4 shall not be affected by the termination of thisagreement.
10.0 LAW OF THIS AGREEMENT
10.1 The only law applicable to this agreement is that of the republic of South Africa.