Memorandum of Agreement
The Agreement is formalized on the date of the measurement survey or date to start with the works, as agreed between the ‘Client’ and the ‘Architect’ whose details are set out in the accepted Quotation.
The Client and the Architect have agreed with the terms of a contract of appointment under which the Architect will provide professional services for the ‘Project’ which is to be undertaken at the ‘Site’, explained on the accepted Quotation.
The Client and the Architect agree with the following:
1. A contract of appointment between the Client and the Architect is made based on the accepted Quotation.
2. Under the Agreement, the Client appoints the Architect and the Architect accepts the appointment to provide services for the Project as set out in the accepted Quotation.
3. The Client shall pay the Architect the Fees, expenses, and disbursements as specified in Schedule below and undertakes to carry out the duties of the Client in accordance with this Agreement.
4. Where the Client has appointed or intends to appoint others to provide services for the Project, the client must inform the Architect as soon as possible.
5. The Client shall be represented for all matters arising in connection with the Agreement by the person identified in the accepted Quotation.
6. The Client and the Architect agree that no action or proceedings against the Architect arising out of or in connection with the Agreement shall be commenced after a year of the project been resolved. It is also agreed that the same period shall apply in relation to the Architect’s obligation to maintain professional indemnity insurance.
7. The Client and the Architect have agreed that the Architect’s limit of liability and the amount of professional indemnity insurance to be provided in connection with the Agreement shall be a maximum of £250000.
8. If a dispute or difference arising out of or in connection with the Agreement is to be referred to an Adjudicator, the Adjudicator shall be nominated by the nominating body referred to in the Particulars or if no such body is identified then at the request of either party the Adjudicator shall be nominated by the Construction Industry Council.
9. The Client consent the Architect takes some pictures of the existing site and pictures of the final works with commercial purposes
10. Any dispute or difference arising out of or in connection with the Agreement shall be dealt with by legal proceedings.
11. The Effective Date of the Agreement shall be the date on which the Architect commenced performance of the Services or the date provided in the accepted Quotation, whichever is the earlier.
12. Where the Client and the Architect have agreed that collateral warranties and/or third party rights shall be provided in connection with the Agreement.
Fees and Expenses
Installments: The following Normal Services installments are to be paid upon the completion of major Work Stages (eg, Design, Pre-Construction, etc) or minor Work Stages (eg, Concept Design, Design Development, etc). The Fees are charged on a lump-sum basis unless otherwise agreed; additional work to that shown in the quote document will be charged on a time basis.
The lump-sum Fees due for any incomplete work is to be estimated by the Architect
Conditions of Agreement
Agreement: The contract of agreement between the Client and the Architect for the Project comprising the accepted Quotation.
(a) At the inception of the project, the Client’s design brief,
(b) at the commencement of the concept design, the Client’s requirements developed after consideration of any feasibility studies and set out by the Client in the design brief,
(c) after approval of the developed design, the detailed Project brief developed in conjunction with that design unless and until varied by the Client and
(d) otherwise, the Client’s requirements for the project which have been confirmed in writing.
CDM Regulations: The Construction (Design and Management) Regulations 2007 or as the same may be revised or amended at any time
Fee: The fees payable to the Architect pursuant to the Agreement, shown on the accepted Quotation.
Project: As referred to in quote document.
Schedule(s): The schedules to the Agreement. Site: As referred to in the quote document.
Timetable: The period of time which the Client wishes to allow for completion of the Project.
Work: Construction works to be carried out by a Contractor(s).
1. GENERAL INTERPRETATION
1.1 The headings and notes to these Conditions are for convenience only and shall not affect the interpretation of the Agreement.
1.2 In the event of any conflict between these Conditions and any Attachment, the Conditions shall prevail.
1.3 The parties agree that if any provision of the Agreement is held by any arbitrator, court or other competent authority to be void or unenforceable in whole or part, this Agreement shall continue to be valid as to the other provisions of the Agreement and the remainder of any affected provision(s).
1.4 Communications, between the Client and the Architect, including any notice or other document required under the Agreement, shall be in writing and given or served by any effective means. Communications that are not in writing shall be of no effect unless and until confirmed in writing by the sender or the recipient. Communications shall take effect when received at the address of the recipient or as otherwise agreed in writing. Digital communication will be accepted if confirmed by the recipient.
Periods of time
1.5 Where under the Agreement an action is required within a specific period of days or from a particular date, that period shall begin immediately after that date but shall not include a day which is Christmas Day, Good Friday, or a bank holiday under the Banking and Financial Dealings Act 1971.
Trust and co-operation
1.6 The Client and the Architect agree to work together in a spirit of mutual trust and co-operation. Either party shall advise the other promptly upon becoming aware of:
1.6.1 a need to vary the Services, the Timetable and/or the Fees and/ or any other part of the Agreement;
1.6.2 any incompatibility in or between any part of the requirements in the Brief; or between the Brief, any Client’s instruction, the Construction Cost, the Timetable and/or the approved design; or any need to vary any part of them;
1.6.3 any information or decisions required from the Client or others in connection with performance of the Services; or
1.6.4 a need to appoint persons, to design or carry out any part of the Project or to provide specialist advice in connection with the Project; and the parties shall use all reasonable endeavors to agree on how to deal with the matter.
1.7 The Client and the Architect shall comply with their respective obligations under the CDM Regulations in relation to the Project including that where the CDM Regulations apply, the Client shall appoint a competent and adequately resourced CDM Co-ordinator and Principal Contractor.
2. ARCHITECT’S OBLIGATIONS AND AUTHORITY
Duty of care
2.1 The Architect in performing the Services and discharging the obligations under the Agreement shall exercise the reasonable skill and care to be expected of an ordinary, competent architect.
2.2 The Architect shall act as the Client’s agent in the matters set out or necessarily implied in the Agreement in relation to the Project as agreed with, or required by, the Client from time to time.
2.3 The Architect shall keep the Client informed of progress in the performance of the Services and of matters that may affect the Timetable, the cost (including the Construction Cost if any) or quality of the Project.
2.4 The Architect shall act reasonably to co-operate with any of the persons involved in the Project;
2.4.1 including to supply them with information within the Architect’s control relating to the Project which is necessary for the carrying out of their services or work; and
2.4.2 where appropriate to provide comment on the services or work of such persons, including so that they may undertake their own obligations in relation to the Project; and
2.4.3 as appropriate, to integrate into the Architect’s own services relevant information provided by such persons.
Changes to Services or design
2.5 Other than in the case of an emergency, the Architect shall not make material alterations or additions to, or omissions from, the Services or the approved design without the consent of the Client. The details of all material alterations, additions or omissions shall be confirmed by the Architect to the Client.
Visits to Site
2.6 The Architect shall in providing the Services make such visits to the Site and/or the Works as the Architect at the date of the Agreement reasonably expects to be necessary.
3. CLIENT’S OBLIGATIONS AND AUTHORITY
3.1 The person who shall exercise the powers of the Client under the Agreement and through whom all instructions shall be given shall be named in the written communications.
Information, decisions, approvals, instructions
3.2 The Client shall supply, free of charge, all such information as is necessary for the proper and timely performance of the Services including for the purposes of complying with the Client’s obligations under the CDM Regulations (where applicable). The Architect shall be entitled to rely upon such information.
3.3 When requested by the Architect, the Client shall give decisions and approvals to enable the proper and timely performance of the Services.
3.4 The Client shall advise the Architect of the initial Brief, and of any Timetable and any budget for the Project and about the relative priorities of these.
3.5 The Architect shall comply with instructions issued by the Client, subject to the Architect’s right of reasonable objection.
3.6 All instructions to any Consultants or Contractors providing services in connection with the Project shall be issued directly by the Client or the Lead Consultant through the Architect unless it is part of the Architect’s duties to issue such instructions. The Client accepts that it shall be fully responsible for the consequences of any instructions issued to Consultants or Contractors and also that such consequences where they affect the Services may entitle the Architect to additional remuneration under this Agreement.
Statutory and other consents required
3.7 The Client shall instruct the making of applications for consents relevant to the Project under planning legislation, building acts, relevant regulations or statutory requirements and by third parties having an interest in the Project. The Client shall pay any required charges, Fees, expenses and disbursements.
Agreement and payment of others
3.8 If the Client requires services to be undertaken by persons other than the Architect (eg, other Consultants, Site Inspector. etc), the Client shall appoint and pay such persons under separate agreements and shall confirm in writing to the Architect the services to be performed by such persons. Unless agreed as part of the Architect’s duties under the Agreement, such persons shall be under the direction of the Client or the Lead Consultant.
Responsibilities of others
3.9 In respect of any work or service in connection with the Project by any person other than the Architect (including by Contractors), the Client shall:
3.9.1 hold such persons and not the Architect responsible for the competence and performance of such work and services;
3.9.2 require such persons to co-operate with the Architect, including to provide the Architect with designs and other information necessary for the proper and timely performance of the Services;
3.9.3 require that such persons shall, when requested by the Architect, consider and provide comments on the work of the Architect such that the Architect can properly integrate his/her own work with that of such persons.
3.10 The Client shall hold any Contractor and not the Architect, responsible for its management and operational methods and for the proper carrying out and completion of the Works in compliance with the relevant building contract and for compliance with health and safety requirements on the Site.
3.11 The Client shall procure legal advice required in regard to the Project at his/her own cost (whether on his/her own account or where the Architect reasonably requires such advice for the proper performance of the Services) and provide such information and evidence as is required for the resolution of any dispute between the Client and any other parties in connection with the Project.
4. ASSIGNMENT AND SUB-CONTRACTING
4.1 Neither the Architect nor the Client shall assign the whole or any part of the Agreement without the consent in writing of the other.
4.2 The Architect shall not sub-contract performance of any part of the Services without the consent of the Client (such consent not to be unreasonably withheld or delayed).
Fees for the performance of the Services
5.1 The Fees for the performance of the Normal Services including for any additional or Other Services shall be calculated and charged as specified in the quote document, being:
5.1.1 a percentage of the Construction Cost calculated in accordance with clause 5.2; and/or
5.1.2 a lump sum(s) in accordance with clause 5.3; and/or
5.1.3 a time-based Fee in accordance with clause 5.4; and/or
5.1.4 another agreed method.
5.2 Where a percentage Fee(s) applies, the percentage(s) stated shall be applied to the Construction Cost. Until the final Construction Cost has been ascertained, interim Fee calculations shall be based on:
5.2.1 before tenders are obtained: the current professionally prepared estimate of the Construction Cost;
5.2.2 after tenders have been obtained: the lowest acceptable tender;
5.2.3 after the building contract is let: the current professionally prepared estimate of the Construction Cost;
5.2.4 after the final/last account has been issued: the actual Construction Cost.
5.2.5 If the Client instructs a reduction in the Brief during the performance of the Services, the percentage Fee up to the date of the instruction shall be calculated on the basis that the current professionally prepared estimate of the Construction Cost or the lowest acceptable tender (whichever is later) is based on the Brief prior to the instruction.
5.3 Where a lump sum Fee applies the Fee shall be calculated as set out in the quote document. The lump-sum Fee shall be adjusted in accordance with clause 5.6 if changes are made to the Brief and/or the Construction Cost and/or the Timetable.
Revision of Fees and other rates
5.4 Lump sums Fees complying with clause 5.3 and rates for time-based Fees complying and charges for mileage and printing carried out in the Architect’s office shall be revised every 12 months in accordance with changes in the Retail Price Index*. Each 12-month period shall commence on the anniversary of the Effective Date of the Agreement, or the date of calculation of the lump sum Fees complying with clause 5.3, whichever is the later.
*The Retail Price Index Price is set out in Table 6.1 (All items) in Labour Market Trends published by the Office for National Statistics or any successor body.
5.5 If the Architect, for reasons beyond his/her control is involved in extra work or incurs extra expense for which she will not otherwise be remunerated, the Architect shall be entitled to additional Fees, calculated on a time basis. Reasons for such an entitlement include but shall not be limited to:
5.5.1 the scope of the Services or the Timetable or the Brief or the period specified for any individual Service is varied by the Client (including if there is a reduction in the scope of the Services);
5.5.2 the nature of the Project requires that substantial parts of the design cannot be completed or must be specified provisionally or approximately before construction commences;
5.5.3 the Architect is required to vary any item of work commenced or completed pursuant to the Agreement or to provide a new design after the Client has authorized the Architect to develop an approved design;
5.5.4 delay or disruption by others;
5.5.5 prolongation of any building contract(s) relating to the Project;
5.5.6 the Architect consents to enter into any third party agreement (eg, collateral warranty) the form or the beneficiary of which had not been agreed with the Architect at the date of the Agreement;
5.5.7 the cost of any work designed by the Architect or the cost of special equipment is excluded from the Construction Cost.
5.5.8 Work carried out as listed in the quote document: Other Services unless agreed that shall be included in the percentage or lump sum Fee(s).
The Architect shall inform the Client as soon as reasonably practicable on becoming aware that this clause 5.5 will apply. This clause 5.5 will not apply to additional work or expense which arises solely due to a breach of this Agreement by the Architect.
5.6 Where for any reason the Architect provides only part of the Services specified in the quote document, the Architect shall be entitled to Fees calculated as follows:
5.6.1 for completed individual Services: Fees calculated as described for those Services in Quote document;
5.6.2 for completed Work Stages: Fees as apportioned for those Work Stages in Quote document;
5.6.3 for Services or Work Stages not completed: a Fee proportionate to that described or apportioned in Quote document based on the Architect‘s reasonable estimate of the percentage of completion.
5.7 If the Architect consents to enter into any third party agreement (eg, collateral warranty) the form or the beneficiary of which had not been agreed by the Architect at the date of the Agreement, the Architect shall be entitled to payment of the Architect’s reasonable costs of assuming such additional liability, including but not limited to legal advice and obtaining any additional professional indemnity insurance required.
Expenses and disbursements
5.8 The Client shall reimburse the Architect’s expenses at net cost plus the handling charge stated in Quote document. Any disbursements incurred on the Client’s behalf shall be reimbursed at net cost plus any handling charge stated in the Quote document.
5.9 The Architect shall maintain records of time in regard to, Services payable on a time charge basis and of any expenses and disbursements to be reimbursed. These records shall be made available to the Client on a reasonable request.
5.10 Payments under this Agreement shall become due to the Architect on the date of issue of the Architect’s accounts. The final date for payment of any amount due to the Architect shall be 7 working days from the date of issue of an account, as stated on every invoice.
5.10.1 The Architect’s accounts shall be issued at intervals of not less than one month and should include any additional Fees, expenses or disbursements and the basis of calculation of the amounts due.
5.10.2 Fee installments shall be calculated on the basis of the Architect’s estimate of the percentage of completion of the Work Stage or other Services or such other method specified in the Quote document.
5.11 The Client shall not withhold payment of any amount due to the Architect under the Agreement unless the amount has been agreed with the Architect or has been decided by any form of legal determination as not being due to the Architect. Subject to this, all rights of set-off at common law or in equity which the Client would otherwise be entitled to exercise are expressly excluded.
5.12 A written notice from the Client to the Architect:
5.12.1 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 on which that amount is calculated; and
5.12.2 shall be given, not later than 5 days before the final date for payment of any amount due to the Architect, if the Client intends to withhold payment of any part of that amount and the notice should state in detail the amount proposed to be withheld and the ground or grounds for doing so and the amount attributable to each ground. It shall not be sufficient for the notice to refer to a global amount(s).
5.12.3 If no such notice as required, the amount due for payment shall be the amount stated as due in the relevant account. In any event, the Client shall not withhold payment of any undisputed part of an account.
5.13 Any sums due and remaining unpaid at the expiry of 7 working days after the date of issue of an invoice from the Architect shall bear interest in accordance with the provisions of the Late Payment of Commercial Debts (Interest) Act 1998, where the Act applies or otherwise at 8% over the Bank of England Base Rate current at the date of issue of the account.
5.14 For the avoidance of doubt, the Architect’s entitlement to interest at the specified rate shall also apply in respect of any amounts that are awarded to the Architect in adjudication, arbitration or legal proceedings.
Recovery of costs
5.15 The Client shall indemnify the Architect in respect of all costs reasonably incurred by the Architect (including costs of the Architect’s time) in recovering any amounts not paid when properly due and/or recovering interest arising and/or in relation to any claim (or any part) made by the Client which the Architect successfully defends or which the Client abandons.
Payment on suspension or determination
5.16 If the Client or the Architect suspends or determines performance of the Services, the Architect shall be entitled to issue an account or accounts in accordance with clause 5.11 for, and shall be entitled to payment of:
5.16.1 any part of the Fee or other amounts due at the date of suspension or determination; and
5.16.2 any loss and/or damage caused to the Architect by the suspension and by any resumption or the determination together with any license Fee due, if the notice of suspension or determination is given:
184.108.40.206 by the Client, except where the suspension or determination arises from a material breach of the Agreement by the Architect; or
220.127.116.11 by the Architect, because of a breach of the Agreement by the Client.
6. COPYRIGHT AND USE OF INFORMATION
6.1 The Architect owns the copyright in the work produced by him/her in performing the Services including any designs, drawings, documents and bespoke software and generally asserts the Architect’s moral rights to be identified as the author of the artistic work or work of architecture comprising the Project.
Use of information
6.2 The Client shall have a license to copy and use and allow other Consultants and Contractors providing services in relation to the Project to use copies of the Material, but only for purposes related to the Project.
6.2.1 Such purposes shall include the operation, maintenance, repair, reinstatement, alteration, extending, promotion, leasing and/or sale of the Project or any part, but shall exclude the use of the Material for any extension of the Project and/ or for any other project.
6.2.2 The Architect shall not be liable if the Material is modified other than by or with the consent of the Architect, or used for any purpose other than that for which it was prepared, or used for any unauthorized purpose;
6.2.3 If it is intended to make any permitted use after the date of the last Service performed under the Agreement, the Client shall pay to the Architect any license Fee or if not specified then such licence Fee as the Architect acting reasonably shall agree.
6.2.4 In the event of the Client being in default of payment of any Fees or other amounts due, the Architect may suspend further use of the licence on giving 7 days’ notice of the intention of doing so. Use of the license may be resumed on receipt of outstanding amounts.
6.2.5 The Client shall obtain or ensure that any third party shall obtain any necessary license and pay any Fees arising for access to any software used to produce any of the Material.
6.3 The Architect shall have the right to publish photographs and a description of the Project, but shall require consent of the Client (not to be unreasonably withheld or delayed) before the publication of any other information about the Project, unless reasonably necessary for the performance of the Services.
6.4 Neither the Client nor the Architect shall disclose to any other personal information identified in writing as confidential unless reasonably necessary:
6.4.1 for performance of the Services; or
6.4.2 in order to take professional advice in relation to the Agreement or the Services; or
6.4.3 in order to obtain/ maintain insurance coverage as required by the Agreement; or
6.4.4 because of a dispute arising out of or in connection with the Agreement; or
6.4.5 as required by law.
7. LIABILITIES AND INSURANCE
Limit of responsibility
7.1 The Architect does not warrant:
7.1.1 that the Project will be completed in accordance with the Timetable or within any budget for the Project;
7.1.2 that any approvals, consents or permissions relating to the Project (whether statutory or otherwise), such as planning permission, or building warrant will be granted;
7.1.3 the solvency, services, performance, work or products of parties other than the Architect whether or not such parties were appointed on the advice of the Architect;
7.1.4 and the Architect shall not be liable for any matters concerning the Project relating to asbestos or toxic mould.
Limit of liability
7.2 The Architect’s liability for loss or damage in respect of any one occurrence or series of occurrences arising out of one event (including any liability for costs) shall be limited to the net contribution in accordance with clause 7.4, whichever is the lesser sum.
7.3 The net contribution shall be such sum as it is just and equitable for the Architect to pay to have regard to the extent of the Architect’s responsibility for the loss and/or damage in question when compared with the responsibilities of all other Consultants, contractors, sub-contractors, and other persons providing services in relation to the Project for that loss and/or damage. Such sum to be assessed on the assumptions that:
7.3.1 such persons have provided to the Client contractual undertakings in respect of liability for such loss and/or damage on terms which are no less onerous than those of the Architect under the Agreement;
7.3.2 there are no exclusions of or limitations of liability nor joint insurance or co-insurance provisions between the Client and any other party referred to in this clause; and
7.3.3 such persons are deemed to have paid to the Client such sums as it would be just and equitable for them to pay having regard to the extent of their responsibility for that loss and/or damage.
Professional indemnity insurance
7.4 The Architect shall obtain professional indemnity insurance for any one occurrence or series of occurrences.
7.4.1 The Architect shall maintain such insurance until at least the expiry of three years from the date of the last Services performed under the Agreement or (if earlier) practical completion of the construction of the Project provided such insurance is available on commercially reasonable rates and terms and is generally available in the insurance market to the Architect.
Rights of third parties
7.5 Other than where the Architect has agreed to confer third party rights, the Client and the Architect agree that they do not intend to confer or purport to confer on any third party other than lawful assignees any benefit or the right to enforce any term of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
8. SUSPENSION AND DETERMINATION
8.1 The Client may suspend the performance of any or all of the Services by giving at least 7 day’s notice to the Architect. The notice shall specify the Services affected.
8.2 The Architect may suspend performance of the obligations under this Agreement on giving at least 7 day’s notice to the Client of his/her intention and of the grounds for doing so in the event that the Client:
8.2.1 is in default of payment of any Fees or other amounts due under this Agreement; or
8.2.2 fails to comply with his/her obligations under the CDM Regulations.
8.3 When the reason for the suspension is removed or resolved the Architect shall resume the performance of his/her obligations.
8.4 If any period of suspension arising from a notice given under clause 8.1 or 8.2 exceeds 6 months the Architect shall have the right to treat this Agreement as determined.
8.5 Any period of suspension arising from a valid notice given under clause 8.1 or clause 8.2 shall be disregarded in computing any contractual date for completion of the Services.
8.6 The Client or the Architect may by giving reasonable notice in writing to the other determine performance of any or all of the Services and the Architect’s obligations under this Agreement stating the grounds for doing so and the Services and obligations affected.
8.7 Performance of the Services and the Architect’s obligations under this Agreement may be determined immediately by notice from either party if:
8.7.1 the Client or the Architect becomes insolvent, which term shall have the meanings set out in section 113 (2-5) of the Housing Grants, Construction and Regeneration Act 1996; or
8.7.2 the Architect becomes unable to provide the Services through death or incapacity.
8.8 On the determination of performance of the Services or the Architect’s obligations under the Agreement:
8.8.1 a copy of the Material referred to in clause 6.1 shall be delivered on-demand to the Client by the Architect, subject to the terms of the license under clause 6.2 and payment of the Architect’s reasonable copying charges; and
8.8.2 determination of the performance of the Services or the Architect’s obligations under the Agreement shall be without prejudice to the accrued rights and remedies of either party.
9. DISPUTE RESOLUTION
9.1 In the event of any dispute or difference arising out of or in connection with this Agreement (‘Dispute’), the Client and the Architect may attempt to settle such Dispute by using the mediation services of the RIBA Mediation Service or such other mediation service as they may agree upon.
9.2 Any Dispute arising out of or in connection with the Agreement may be referred to adjudication by the Client or the Architect at any time to the adjudicator.
9.2.1 The adjudication procedures and the agreement for the appointment of an Adjudicator shall be as set out in the ‘Model Adjudication Procedure’ published by the Construction Industry Council current at the date of the reference, subject to clause 29 of the Model Adjudication Procedure being deleted and replaced as follows: ‘The adjudicator in making a decision shall have the discretion to direct the payment of legal costs and expenses of one party by another. The adjudicator may determine the number of costs to be paid or may delegate the task to an independent costs expert.’
9.3 Where that Disputes may be referred to arbitration, the referring party shall give notice to the other to such effect and the Dispute shall be referred to arbitration and for the final decision of the arbitrator.
9.3.1 the Client or the Architect may refer to the court any claim for a pecuniary remedy which does not exceed £5,000 or such other sum as is provided by statute pursuant to section 91 of the Arbitration Act 1996.
9.3.2 in such arbitration the Construction Industry Model Arbitration Rules (cimar) current at the date of the reference shall apply;
9.3.3 the arbitrator shall not have the power referred to in Section 38(3) of the Arbitration Act 1996
9.4 Where legal proceedings shall apply the local court shall have jurisdiction over any Dispute.